Hospital Shared Services

National Labor Relations Board - Board Decisions

Nov 30, 1999

330 N.L.R.B. 317 (N.L.R.B. 1999)

HOSPITAL SHARED SERVICES 317
Hospital Shared Services, Inc. and International
Guards Union of America, Region 6 and Ty A.
Powell. Cases 27–CA–14321, 27–CA–14414, and
27–CA–14515
November 30, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On February 13, 1997, Administrative Law Judge
James L. Rose issued the attached decision. The Re-
spondent and the General Counsel each filed exceptions
and a supporting brief, an answering brief to the other’s
exceptions, and a reply brief to the other’s answering
brief. The Respondent also filed a motion to reopen the
record and a supplemental brief in support of that mo-
tion.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.
Background
The Respondent provides security and other nonmedi-
cal services to some 30 Hospitals in Colorado under con-
tract with each of the Hospitals.3 At issue are the secu-
rity officers in the Respondent’s employ at St. Mary’s
Hospital in Grand Junction, Colorado.4 As of the time of
the judge’s decision, the Respondent had provided secu-
rity services to St. Mary’s for about 15 years.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In the absence of exceptions, we adopt pro forma the judge’s rec-
ommended dismissal of the following complaint allegations: Case 27–
CA–14321: pars. 5(h), (k), and (l); Case 27–CA–14414: pars. 5(o) and
(p).
In addition to the violations found by the judge, Member Fox would
find that the Respondent violated Sec. 8(a)(1) when its highest man-
agement official at the facility, Lieutenant Richard Benefield, told an
employee that he “felt betrayed” by another employee because of that
employee’s efforts on behalf of the Union. In Member Fox’s view,
Benefield’s statement, when taken in the context of other threats made
during that same conversation, not only “gave immediacy to the [other]
threats,” as the judge stated, but constitutes an unlawful statement in its
own right. See, e.g., House Calls, Inc., 304 NLRB 311, 313 (1991)
(employer representative’s statement during union organizing campaign
that employees were “ingrates who were hitting him when he was
down” violated Sec. 8(a)(1) by equating union activity with disloyalty
to the employer). Accord: Ferguson-Williams, Inc., 322 NLRB 695,
699 (1996) (“greatly offended” by employee’s prounion statements).
3 The Respondent is a cooperative business enterprise with each
Hospital sharing an ownership interest in the Respondent.
4 The security staff included 12 full-time and 6 part-time employees,
including Lieutenant Richard Benefield and Sergeant John Barron.
Sergeant John Barron and security officer Ronald
Hutchings began a union organizing campaign at the
facility in December 1995, soliciting 11 cards during a
week in mid-January 1996.5 The Union filed its petition
on February 12. The election has not been conducted
pending resolution of the unfair labor practices alleged in
this consolidated proceeding.
The 8(a)(1) Allegations
1. The Respondent excepts to the judge’s finding that
the Respondent, through its president, George Schiel,
violated Section 8(a)(1) when he solicited employee
grievances and impliedly promised to remedy them. In
support of its exception, the Respondent contends that
Schiel prefaced his remarks at every meeting by telling
employees that he was not permitted to make any prom-
ises of benefits or threats of reprisals in order to influ-
ence the election. In addition, the Respondent contends
that Schiel responded to certain of the employees’ com-
plaints by “defend[ing] the company’s position on all
major issues.” We find no merit in the Respondent’s
exception.
As stated in Reliance Electric Co., 191 NLRB 44, 46
(1971):

Where . . . an employer, who has not previously had a
practice of soliciting employee grievances or com-
plaints, adopts such a course when unions engage in
organizational campaigns seeking to represent employ-
ees, we think there is a compelling inference that he is
implicitly promising to correct those inequities he dis-
covers as a result of his inquiries and likewise urging
on his employees that the combined program of inquiry
and correction will make union representation unneces-
sary [footnote omitted].

Accord: Palm Garden of North Miami, 327 NLRB 1175
(1999).
Under the circumstances, we agree with the judge that
the Respondent has not rebutted the inference that
Schiel’s solicitation of grievances carried with it the im-
plication that the grievances would be remedied. That
implication is strengthened, not rebutted, by the fact that
Schiel told the employees that he would bring some of
their concerns to the Hospital’s attention while “defend-
ing the status quo” as to others. Schiel’s response would
tend to bolster the implication that the Respondent was
implicitly promising to remedy those concerns that it did
not flatly deny.6
5 All dates are 1996 unless otherwise indicated.
6 We reject our dissenting colleague’s contention that Schiel’s im-
plied promise to remedy their grievances was negated by the fact that
he prefaced his remarks to employees at captive audience meetings by
telling them that he was not permitted to make any promises of bene-
fits. “[I]t is immaterial that an employer professes that he cannot make
any promises if in fact he expressly or impliedly indicates that specific
benefits will be granted.” Michigan Products, 236 NLRB 1143, 1146
(1978). See also Windsor Industries, 265 NLRB 1009, 1016 (1982);
330 NLRB No. 40
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 318
2. The complaint alleges that the Respondent, through
its highest on-site management official, Lieutenant Rick
Benefield, violated Section 8(a)(1) when he told an em-
ployee that another employee was not going to receive a
promotion because of his union activity. In support of
the allegation, security officer Jason Romero testified
that, in a conversation in which Benefield committed
other violations of Section 8(a)(1),7 he also told Romero
that he had been intending to promote Hutchings to ser-
geant but would not do so because of Hutchings’ in-
volvement in the union’s organizing campaign. Al-
though the judge found the other violations that grew out
of the conversation and made reference to Benefield’s
expressed intention to promote Hutchings, the judge
failed to consider whether this particular statement con-
stitutes unlawful coercion in violation of Section 8(a)(1)
of the Act. In view of the fact that Romero’s credited
version of the conversation remains uncontroverted by
Benefield, we find that the statement was made and that
it interfered with Hutchings’ right to engage in union
activities, in violation of Section 8(a)(1) of the Act.8
3. The complaint also alleges that the Respondent vio-
lated Section 8(a)(1) when Benefield told former em-
ployee Ty Powell that he would not be rehired because of
his former union activity. Powell had worked as a secu-
rity officer from February 27 to November 18, 1995,
when he left to take a job at the Hospital. When he be-
came disillusioned with his new job he approached Bene-
field in early February to request a return to the Respon-
dent’s employ. Benefield replied that he would be glad
to take Powell back and even work his hours around
Powell’s classes. After the union filed its petition, how-
ever, Benefield changed his mind, telling Powell that he
would not hire him back because he had supported the
union before he resigned.9
Although the judge found that Benefield’s refusal to
rehire Powell violated Section 8(a)(3), he did not find
that the statement made to Powell separately and addi-

Heartland of Lansing Nursing Home, 307 NLRB 152, 156 (1992) (em-
ployer does not rebut inference that it is promising to remedy griev-
ances which it has solicited merely by reiterating repeatedly that he
cannot make any promises, where other comments are not in accord
with those disavowals). In this case, Schiel’s rote disclaimers that he
could not promise the employees any benefits were contradicted by his
offer to bring the employees’ concerns to the Hospital’s attention.
Thus, the disclaimers did not negate the unlawful effects of that prom-
ise.
7 During that conversation with Romero on the morning of February
16, Benefield also threatened employees with job loss and other repri-
sals, including physical violence.
8 See Madison Kipp Co., 240 NLRB 879 (1979) (employer threat-
ened employee with loss of promotion).
9 According to Powell’s credited testimony, Benefield told Powell
that he “could not rehire me at that time due to the fact that he had just
learned that the security officers were trying to start a union and that,
since I was part of the original discussion in the union, he could not
rehire me because he’d just be rehiring another vote for the union and
that he was taking it personally and felt that I was part of that and part
of going behind his back to start this union.”
tionally violated Section 8(a)(1). In view of the fact that
Powell’s version of the conversation is uncontroverted
and credited by the judge, we find that the Respondent
violated Section 8(a)(1) by telling a former employee
that he would not be rehired because he engaged in union
activity. See Grimway Farms, 314 NLRB 73, 74 (1994)
(unlawful statement to former employees that they were
ineligible for rehire because they engaged in protected
concerted activity).
CONCLUSIONS OF LAW10
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. By engaging in the following conduct the Respon-
dent committed unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act:
(a) Threatening job loss and other reprisals if employ-
ees engage in union or other protected, concerted activi-
ties.
(b) Attempting to help employees withdraw their au-
thorization cards.
(c) Soliciting grievances from employees and impli-
edly promising to remedy them.
(d) Promising benefits to job applicants if they would
work against union activity.
(e) Interrogating employees about how they intended
to vote in the representation election.
(f) Telling an employee that another employee was not
going to receive a promotion because of his union activ-
ity.
(g) Telling a former employee that he would not be re-
hired because of his union activity.
4. The Respondent has violated Section 8(a)(3) and
(1) of the Act by refusing to rehire a former employee
because of his and other employees’ union activity.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of the Act.
AMENDED REMEDY
Having found that the Respondent committed numer-
ous violations of Section 8(a)(1) and a single violation of
Section 8(a)(3) when it learned of the Union’s petition,
including such “hallmark violations” as threats of job
loss, the judge concluded that the effects of the threats
could not be remedied by traditional means and recom-
mended issuing a bargaining order. The judge placed
particular emphasis on the threats by Schiel to the effect
that the Hospital would cancel its contract with the Re-
spondent if the employees selected the Union to repre-
sent them.11 While we agree that the threats of job loss
10 Because the judge omitted a conclusions of law section from his
decision, we recite the conclusions in full.
11 Contrary to our dissenting colleague, we find that the judge did re-
solve the conflict between Schiel’s testimony and the employees’ tes-
HOSPITAL SHARED SERVICES 319
in the form of the Hospital’s cancellation made by Schiel
are serious, we believe that our traditional remedies are
adequate to remedy the effects of the violations in the
circumstances here. In particular we note that the threats
of contract cancellation were not made by any represen-
tative of the Hospital—the entity with the power to carry
it out—but were rather the unsupported speculations of
the Respondent’s official, Schiel, who, according to the
testimony of a credited witness, said that the Hospital
could either continue the contract with Respondent oper-
ating as “a union shop” or could terminate the contract
on 30 days’ notice. Schiel offered his opinion that the
Hospital was more likely to do the latter, out of antiunion
animus and fear of possible strikes, because it was his
view that the Hospital had retaliated against employees
during a past union campaign by nurses. He did not,
however, purport to be relating anything that any repre-
sentative of the Hospital had said to him about the em-
ployees’ union campaign. In our view, Schiel’s remarks
were clearly coercive and properly deemed violations of
Section 8(a)(1) of the Act because they were predictions
not supported by objective facts. However, they were
not the same as a plant closing threat made by the em-
ployer itself, to be carried out as an “economic reprisal to
be taken solely on [its] own volition,” as was the case in
NLRB v. Gissel Packing Co., 395 U.S. 1422, 618–619
(1969). The other violations found herein do not rise to
the level of “hallmark” violations, and we are satisfied
that, as such, they are remediable through the Board’s
traditional remedies. We find, therefore, that an election
remains an available, and thus most appropriate, method
for determining the employees’ uncoerced wishes regard-
ing representation.12
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Hospital

timony on this point, and that he did so by crediting the employees’
testimony. In his decision, the judge specifically stated that he agreed
with the General Counsel that Schiel’s statememts about the possibility
that the Hospital would cancel its contract would reasonably have been
construed by employees as a threat of job loss “in the context of” other
statements Schiel made to the employees, specifically “his reference to
employees being fired by the Hospital when another union attempted to
organize Hospital employees and that the Hospital was worried about a
strike.” In making that finding, the judge was necessarily crediting the
employee witnesses who testified that Schiel made those other state-
ments. We agree with the judge that, in this context, “Schiel’s state-
ment that the Hospital might cancel the Respondent’s contract, without
offering any supporting objective facts, was not a reasonable prediction
of events beyond his control [but a] threat of job loss.” See Reeves
Bros., Inc., 320 NLRB 1082, 1083 (1996) (prediction that voting in the
union would cause customer cancellation of contract an unlawful threat
of job loss where statement not substantiated by facts concerning such
an action).
12 In view of our decision, we need not rule on the Respondent’s mo-
tion to reopen the record. We also find it unnecessary to reach the issue
of Barron’s supervisory status which, the Respondent alleges, tainted
the Union’s card majority.
Shared Services, Inc., Grand Junction, Colorado, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraphs 1(f) and (g) and
reletter the subsequent paragraph.
“(f). Telling an employee that another employee was
not going to receive a promotion because of his union
activity.
“(g). Telling a former employee that he would not be
rehired because of his former union activity.”
2. Delete paragraph 2(b), and renumber the subse-
quent paragraphs.
3. Substitute the following for relettered 2(c) para-
graph.
“(c) Within 14 days after service by the Region, post at
its facility in Gran Junction, Colorado, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
27, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 16,
1996.”
4. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, dissenting in part.
I dissent in two respects.
First, I do not adopt the judge’s finding that the Re-
spondent violated Section 8(a)(1) with respect to an al-
leged threat that the contract between the Respondent
and its client, St. Mary’s Hospital, would be canceled if
employees voted for union representation. I would re-
mand that issue to the administrative law judge for a
resolution of witness credibility.
My colleagues acknowledge that “threats of contract
cancellation were not made by any representative of the
Hospital—the entity with the power to carry it out.”
Thus, the issue is whether the Respondent, through its
president, George Schiel, (1) threatened that the Hospital
would cancel the contract with the Respondent in retalia-
tion for the unionization of the Respondent’s employees,
or (2) predicted that the Hospital would cancel the con-
tract if Respondent’s labor costs were increased and
passed on to the Hospital. In finding that a threat was
made, my colleagues do not differentiate between the
testimony of employee witnesses and the testimony of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 320
Schiel. The employees testified that Schiel had told them
that the Hospital “could pull the contract” or that the
Hospital “would basically let [employees] go because
they were worried about a strike.” Schiel’s testimony,
however, is markedly different. According to Schiel,

[I]f there were demands that were significant by the
Union and if we responded to those demands, we could
end up with an increase in our cost structure, and we
would have to decide if we were able to work within
that cost structure or pass it on to the Hospital.

Schiel also testified that he had told employees:

[If] we felt we had to increase our costs, we’d have to
go to the Hospital, ask for an increase, and the Hospital
would have to make a business decision, and at that
time if the Hospital did not want to have increased
costs because they were outside their budget or what-
ever else, they could cancel our contract and do that
immediately.

The judge did not explicitly credit either Schiel or the
employee witnesses. In my view, unlike the employee
witnesses’ accounts, Schiel’s testimony is consistent with
2 above. I would therefore remand the issue to the judge
to make an explicit credibility resolution. Accordingly, I
do not join my colleagues in the finding of a violation.
My colleagues point to another statement made by
Schiel, and contend that the judge’s finding that this
statement was made establishes that the judge did resolve
the aforementioned credibility conflict. I disagree. In
my view, the finding as to the other statement did not
resolve the credibility conflict. The other statement was
that the Hospital fired its own employees when a union
sought to organize them. This statement refers to the
Hospital’s actions against its own employees who appar-
ently were once seeking to organize. This is, of course, a
matter different from Schiel’s comment about what the
Hospital might do vis-a-vis Respondent if Respondent’s
employees were organized.
I recognize that Schiel also spoke about the Hospital’s
concern about a possible strike at Respondent’s facility.
However, this statement is quite consistent with Schiel’s
testimony. That is, Schiel was speaking of the Hospital’s
concerns about the possible economic consequences (for
the Hospital) of a unionization of Respondent.
In sum, the statements cited by my colleagues do not
resolve the fundamental credibility conflict that concerns
me. In these circumstances, there is no adequate substi-
tute for an explicit resolution of that conflict.
In addition, I do not agree that Respondent impliedly
promised to grant benefits to employees if they rejected
the Union. Respondent agent Schiel defended the status
quo with respect to certain employee complaints, and he
simply said that he would bring other complaints to the
attention of the Hospital. Even as to the latter comment,
there is no promise of a benefit. Rather, in contrast to the
former comment, a favorable resolution was simply not
foreclosed. Further, to the extent that there was any am-
biguity on this point, the Respondent clarified it by ex-
pressly stating that it could not, and would not, make any
promises.
I agree with my colleagues that a clear promise of
benefit cannot be negated by a “rote” disclaimer of a
promise. However, that principle does not aid their posi-
tion in the instant case. In context, the statement in the
instant case (about bringing complaints to the attention of
the Hospital) was not a clear and unambiguous promise
to remedy those complaints. In the circumstances, the
clear and express disclaimer of any promise clarifies the
ambiguity, i.e., it says that no promises are being made.
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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten our employees with loss of jobs
or other reprisals should they engage in union or other
activity protected by Section 7 of the Act.
WE WILL NOT aid our employees in withdrawing their
union authorization cards.
WE WILL NOT solicit grievances from our employees
and promise to rectify them in order to discourage union
or other protected activity.
WE WILL NOT promise benefits to job applicants in or-
der for them to work against employees’ union or other
protected activity.
WE WILL NOT interrogate our employees concerning
their union or other protected activity.
WE WILL NOT refuse to hire applicants for employment
because of their and other employees’ union or other
protected activity.
WE WILL NOT tell an employee that another employee
was not going to receive a promotion because of his un-
ion activity.
WE WILL NOT tell a former employee that he would not
be rehired because of his union activity.
HOSPITAL SHARED SERVICES 321
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make whole Ty Powell for any loss of bene-
fits he may have suffered as a result of our discrimina-
tory refuals to hire him, with interest.

HOSPITAL SHARED SERVICES, INC.

William J. Daly and Andrea Floyd, Esqs., for the General
Counsel.
Robert J. Janowitz and Joseph P. Leon, Esqs., of Kansas City,
Missouri, for the Respondent.
John Blakley, of Amarillo, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Grand Junction, Colorado, on several days
from October 8 to November 7, 1996,1 upon the General Coun-
sel’s consolidated complaint which alleged that Hospital Shared
Services, Inc. (the Respondent or HSS) engaged in violations of
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act). It is also alleged that the violations were sufficiently
serious to require a bargaining order, inasmuch as a majority of
employees in an appropriate unit had signed authorization cards
designating the Charging Party as their bargaining representa-
tive.
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends the discharge of
Ron Hutchings was for cause, and that some of the authoriza-
tion cards were solicited by Supervisor John Barron.
Upon the record as a whole, including my observation of the
witnesses, briefs and arguments of counsel, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with an office and place of
business in Grand Junction, Colorado, where it provides secu-
rity services to St. Mary’s Hospital. In the course and conduct
of its business, the Respondent annually purchases and receives
goods and materials valued in excess of $50,000 directly from
points outside the State of Colorado and annually provides
services valued in excess of $50,000 directly to St. May’s Hos-
pital, which is an acute care Hospital with annual gross reve-
nues in excess of $250,000. The Respondent admits, and I
conclude that it is an employer engaged in interstate commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Guards Union of America, Region 6 (the Un-
ion) is admitted to be, and I find is, a labor organization within
the meaning of Section 2(5) of the Act.

1 All dates are in 1996, unless otherwise indicated.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent has total of about 1500 employees, about
800 of whom are security guards, with its corporate office in
Denver, Colorado. The Respondent provides security services
for 30 Hospitals in Colorado as a cooperative, meaning that the
Hospitals have an ownership interest in the Respondent. For
about 15 years the Respondent has provided the security for St.
Mary’s, 24 hours a day, 7 days a week, employing, as of Janu-
ary 19, 12 full-time and 6 part-time employees (including Lieu-
tenant Richard Benefield and Sergeant John Barron).
In December 1995, the security officers, led by John Barron
and Ronald Hutchings, began to organize for the Union. They
solicited 11 authorization cards from then current employees
between January 11 and 19. The Union then filed a representa-
tion petition on February 12.
On February 15 the Respondent’s president, George Schiel,
and its executive vice president for security, Russ Colling, first
met with the employees. They had subsequent meetings on
February 16 and 26, March 4, and April 9. During these meet-
ings statements were made which are alleged violative of Sec-
tion 8(a)(1), to be discussed in detail below. And during this
time period, Lieutenant Benefield is also alleged to have made
statements violative of the Act.
A Stipulated Election Agreement was signed by the parties
on February 26, however the election was not held, since the
the charges in this matter had been filed.
It is alleged that on March 14 the Respondent refused to re-
hire Ty Powell and on March 15 discharged Hutchings both in
violation of Section 8(a)(3) of the Act.
Finally, it is alleged that the unfair labor practices were suf-
ficiently serious that they can best be remedied by a bargaining
order, and that a majority of employees in an appropriate unit
had designated the Union as their bargaining representative.
B. Analysis and Concluding Findings
1. The alleged 8(a)(1) statements
In general, the Respondent argues that the statements made
by Schiel and Benefield must be considered in recognition of
the employer’s right under Section 8(c), which states, in effect,
that no expression of views, argument or opinion shall consti-
tute or be evidence of an unfair labor practice, unless such con-
tains a threat of reprisal or promise of benefit. Or, as the Board
has said, “The basic test for a violation of Section 8(a)(1) is
whether under all the circumstances the employer’s conduct
reasonably tended to restrain, coerce or interfere with the em-
ployees’ rights guaranteed by the Act.” Mediplex of Danbury,
314 NLRB 470, 474 (1994).
Thus, each of the statements by Schiel and Benefield must be
analyzed by considering “whether, under all the circumstances,
[the] [R]espondent’s remarks reasonably tended to restrain,
coerce, or interfere with employees’ rights guaranteed under the
Act.” Sunnyside Home Care Project, 308 NLRB 346 fn. 1
(1992).
a. The meetings
While the testimony is somewhat vague concerning how
many times company officials met with the employees, and
exactly what was said, there is a general consensus that there
were meetings on February 15 and 16 and three later. And
there is a general consensus about the subject matter, if not the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 322
exact words spoken. Thus, Schiel and Colling arrived in Grand
Junction in the evening of February 15, and along with Bene-
field met with the four “swing shift” employees (4 p.m. to 12).
Barron testified that Schiel told them that “we had screwed up
by not coming to him with our concerns and problems first and
by contacting the union. We had painted them into a corner.
The Hospital was probably going to dissolve our contract. That
it was probably too late.”
Schiel, Colling, and Benefield met with all the security offi-
cers on February 16. Barron testified that toward the end of the
meeting Benefield asked why the employees had not come to
him. When Benefield in turn was asked what he would have
done if they had, he said, “[T]hat he would have nipped it in the
bud.” Benefield went on to say, according to Jason Romero,
“[H]ow he was upset at John Barron and how he made him a
supervisor or a sergeant and that he felt betrayed or stabbed in
the back.”
Barron and Denning testified that on February 15, Schiel told
employees that they should have come to Respondent before
contacting the Union, which Schiel admitted.
Diego Pena testified that Schiel asked if was true they were
trying to form a union and he asked, “[I]f we could tell him
concerns that we had.” The employees told him such things as
they would like to have a better car, better training and civil
insurance coverage.
Pena further testified that Schiel said the Hospital was op-
posed to union. Schiel told them “that the nurses had tried to
form a union before and explained what had happened the last
time something arised [phonetic] like this at the Hospital,
that—That the union was squelched, so to speak; people were
fired because of informing. [Sic.]”
Tim Denning testified that at this meeting it was said that af-
ter the meeting the Respondent’s officials would meet with
Hospital officials “to discuss whether—if HSS still had their
contract with the Hospital. We were told that St. Mary’s could
pull the contract within 24 hours as well as HSS could pull the
contract within 24 hours.”
At that meeting there was made available to employees cop-
ies of a letter prepared by Schiel which read:

Mr. John Blakely, Jr.
5112 Harvard
Amarillo, TX 79109

Dear Mr. Blakely;

Please withdraw my signature to be represented by the Inter-
national Guards Union of America, Local #65.

Sincerely,

Schiel next met with the employees on February 26. Barron
testified that Schiel stated that Barron and Shaun (Shaun How-
ell) had been singled out has having a lot of weight with the
other employees, that they did not get much recognition and
that there would be something in the company newsletter.
Schiel also said, “[T]hat he felt that he could be the best one for
communication between us and the Hospital, and that if a union
was in that it would stop; the communication would stop.”
Hutchings testified that Schiel said at this meeting that the
Hospital could end the contract in 30 days, but he was going to
try to keep the hospital officials from doing so. “He told us that
he was, you know, looking into our concerns, and that he was
going to try to keep our jobs with St. Mary’s, but if that we got
a union in there, that St. Mary’s would basically let us go be-
cause they were worried about a strike.”
Hutchings also testified about a meeting with Schiel on
March 4. “Mr. Schiel said that he was there to listen to our
concerns and to basically take them to St. Mary’s and see what
he could do about getting them taken care of. He asked us what
our concerns was.” Hutchings testified that he and others stated
several concerns they had. Finally, Schiel said, “[T]hat there
were basically three things that St. Mary’s could do, and if we
voted a union in—number one, they could terminate our con-
tract in 90 days and go with someone else who was cheaper and
pay their guys minimum wage, that we would just be out jobs,
or that they could keep us on there as a union shop, but that St.
Mary’s didn’t really want a union shop in there because they
were worried about a strike.”
The Respondent’s evidence concerning these meetings is the
testimony of Schiel. Colling did not testify and counsel’s ex-
amination of Benefield was limited to the subject of Hutchings
discharge.
Schiel confirmed that he received the representation petition
on February 12 and made arrangements for a trip to Grand
Junction later that week. He and Colling arrived on the evening
of February 15 and then met with the swing shift employees.
They met with the rest of the security officers the next day.
Schiel stated that he started the February 15 meeting by say-
ing, “I regretted that the employees had not come to me first.”
He had a lengthy discussion with employees about some of
their concerns. And they talked about the election and “if there
were demands that were significant by the union and if we re-
sponded to those demands, we could end up with an increase in
our cost structure, and we would have to decide if we were able
to work within that cost structure or pass it on to the Hospital.”
He told employees that if “we felt we had to increase our costs,
we’d have to go to the Hospital, ask for an increase, and the
Hospital would have to make a business decision, and at that
time if the Hospital did not want to have increased costs be-
cause they were outside their budget or whatever else, they
could cancel our contract and do that immediately.”
One employee, who was opposed to the Union, asked if any-
thing could be done for those who had signed cards. Schiel
testified, “I told him that earlier that morning I had drafted a
one-sentence letter that I would make available for anybody
that wanted to voluntarily, and anonymously use it, but that I
emphasized that I didn’t think it would do any good, and we
left some copies on the table and some copies in the security
office.” Schiel testified that this question had also been asked
the night before, which prompted his preparing the letter.
On February 26 Schiel returned to Grand Junction, because a
representation case hearing had been scheduled, and again met
with the employees. He told them the Respondent would coop-
erate with the Union; he again invited discussion with the em-
ployees; and, he again told them how the Respondent was a
membership corporation and went through the same scenario
concerning passing on costs, should the Respondent agree with
the Union to wage increases; and he again talked about the
handbilling of the Hospital by another union the previous sum-
mer.
Schiel returned and had small meetings with employees on
March 3 and 4 in order “to get a little better read on Mr. Bene-
field. I had heard in the previous meetings people talking about
lack of responsiveness, lack of training, some other things and I
wanted to try to get a little better read—on that and get it done
HOSPITAL SHARED SERVICES 323
in small groups, to the extent I could.” And finally, he wanted
to make sure the employees understood how the security pro-
gram was structured on a cost basis.
The allegations of unlawful conduct by Schiel at the meet-
ings are contained in paragraphs 5(a), (b), (c), (g), (h), (j), (k),
(m), and (n).2
The facts set forth in paragraph 5(a)—that employees should
have come to the Respondent before contacting the Union—is
supported by the testimony, including that of Schiel. While this
statement does not include a threat of reprisal or promise of
benefit, during the course of the meeting threats were made. A
similar comment in similar circustances was made in Crown
Cork & Seal Co., 308 NLRB 445 (1992), and found to be un-
lawful, though such was not included in the Board’s remedial
order or notice. I therefore conclude that the allegation in para-
graph has been sustained.
In the meeting of February 16, when asked what he would
have done if he had known about the employees’ interest in the
Union, Benefield said, “I would have nipped it in the bud.” I
disagree with counsel for the Respondent that such is benign
phraseology. I conclude there is an implicit threat in such a
statement and that in context, the Respondent violated Section
8(a)(1) as alleged in paragraph 5(b). The remaining part of
Benefield’s statement, that he felt betrayed by Barron, tends to
give immediacy to the implied threat, but does not, as alleged in
paragraph 5(c) does not seem, in itself, to imply a threat or a
promise. Thus, I shall recommend that paragraph be dismissed.
At the first general meeting of employees on February 16, an
antiunion employee asked how those who had signed cards
could get them back and Schiel said that the had prepared a
letter to send to the Union. The Respondent argues that this
was simply a ministerial act on Schiel’s part and was not an
attempt to solicit employees to retract their cards, citing Poly
Ultra Plastics, 231 NLRB 787 (1977). I reject this argument.
Unlike the case cited, here Schiel in fact prepared the letter, had
copies of it to hand out at the meeting and to be available in the
security office. At the time there was no effort by employees
who had signed cards to revoke them. Schiel’s act was much
more than minimal support for employees to renounce the Un-
ion and was violative of Section 8(a)(1) as alleged in paragraph
5(g). Chelsea Homes, Inc., 298 NLRB 813 (1990).
In paragraph 5(h) it is alleged that Schiel told employees that
by signing and withdrawing support from the Union, “he could
buy them some time and maybe save their jobs.” The credible
testimony from the General Counsel’s witnesses is that Schiel
made no such comment when presenting the letters. Thus, I
conclude that the allegation in this paragraph is not factually
supported; however, that does not take away from violation
found concerning Schiel’s soliciting employees to sign and
send the letters. This allegation neither significantly adds nor
detracts from the essential violation.
The allegation of threatened discharge in paragraph 5(j), as
to Schiel, appears based on his overall statements to employees
at the February 15 and 16 meetings. Counsel for the General
Counsel argue that his reference to employees being fired by
the Hospital when another union attempted to organize Hospital
employees and that the Hospital was worried about a strike
implied a threat of job loss. Especially this is so in the context

2 There is no evidence concerning the allegation in par. 5(o), nor did
counsel for the General Counsel make reference to this allegation in
their brief. Accordingly, I will recommend it be dismissed.
of Schiel also suggesting that the Respondent might lose its
contract with the Hospital. I agree with counsel for the General
Counsel that in context, Schiel’s statements would reasonably
be construed by employees that their jobs were at risk for hav-
ing engaged in union activity. Mediplex of Danbury, 314
NLRB 470 (1994). Schiel’s statement that the Hospital might
cancel the Respondent’s contract, without offering any support-
ing objective facts, was not a reasonable prediction of events
beyond his control. It was a threat of job loss. Crown Cork &
Seal Co., supra.
In paragraph 5(k) it is alleged that Schiel told employees he
could negotiate for them better than the Union. Hutchings testi-
fied that Schiel made a statement to this effect on February 16.
Schiel denied making such a statement. I tend to credit Schiel’s
denial. Further, the statement, as relayed by Hutchings, makes
no sense. The employees through the Union would deal with
the Respondent, not the Hospital. I conclude that the allegation
in paragraph 5(k) has not been sustained as a separate violation
of the Act.
On March 4, Schiel is alleged to have solicited employee
grievances (par. 5(m)) and promised to rectify them (par. 5(n)).
Schiel testified that at the March 4 meeting, as well as the ear-
lier ones, he sought to discover the employees’ concerns. The
employee witnesses all testified that Schiel asked about their
concerns and they told him. Though as an abstract proposition
the expressed willingness of a company to listen to employee
concerns may not violate the Act, in a context such as here,
solicitation does. Schiel was attempting to dissuade employees
from their fledgling organizational campaign and did so in part
by asking about their concerns, which necessarily implied that
they would be corrected. Such violates Section 8(a)(1). Baker-
field Memorial Hospital, 315 NLRB 596 (1994).
Though some of the detail plead by the General Counsel I
conclude either did not occur or was not violative of the Act,
overall I conclude that Schiel undertook to interfere with the
employees’ right to organize by threats of job loss, solicitation
of grievances with implied promises of benefits and attempting
to aid them in renouncing the Union.
b. The additional statements of Benefield
Apart from the meetings, Benefield is alleged to made cer-
tain statements to employees and others in violation of Section
8(a)(1). Although Benefield testified about the facts leading to
Hutchings’ discharge, he was pointedly not questioned about
any of the 8(a)(1) allegations. These findings are therefore
based on the undenied, and generally credible testimony of the
General Counsel’s witnesses.
On the morning of February 16, when Hutchings reported for
work he had a brief discussion with Benefield. Hutchings testi-
fied that Benefield said, “[Y]ou know what you guys are doing
is ignorant. And I said, ‘Oh?’ And he said, ‘Yes.’ We’re
probably all going to lose our jobs because of this.” Similarly,
Romero testified that he talked to Benefield that morning and
Benefield said, “You know that we all screwed up, meaning all
the security officers by going to the union, and that we were all
going to lose our jobs, that we had all cut our own throats be-
cause, you know, we were all going to get fired.” These are
clear threats of discharge for employees having engaged in
protected activity and are clearly violative of Section 8(a)(1).
Romero testified that Benefield went on to say that if he had
known of the union activity he would have “nipped it in the
bud” and that he felt betrayed by Barron. And, toward the end,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 324
Benefield told Romero that that if he lost he job because of the
union “if he sees any of us out on the street, he’s going to settle
it with us.” Although such a statement is very contingent, it no
doubt conveys the message of a physical threat to employees
for engaging in protected activity and is thereby violative of
Section 8(a)(1).
About February 14 or 15 Tim Denying was informed that he
would be hired by the Hospital and he gave the Respondent 2
weeks’ notice. He talked to Benefield about continuing as a
security officer on a part-time basis. Benefield said he would
have to check. Later Benefield told Denning “that George
Schiel was considering keeping me on part-time if I helped bust
the union,” to which Denning responded, “Fine.” However,
nothing more came of this. In any event, such a statement by
Benefield is a promise of benefit to an employee to engage in
anti-union activity and is therefore violative of Section 8(a)(1).
Shaun Howell testified that during this period, though the
date was unspecified, Benefield told him that “we were going
to wind up having our contract canceled because of the union.”
Benefield also said, when Howell indicated that he was going
to have to get a second job, “if everything had been left alone,
we wouldn’t be looking for new jobs.” And just before the
scheduled vote, Benefield asked Howell, “[I]f I’d be voting for
or against the union.” By these statements Benefield clearly
engaged in unlawful interrogation and made threats of job loss
as a result of employees having engaged in protected activity.
In paragraph 5(l) it is alleged that Benefield told an individ-
ual not in employ of the Respondent that the Respondent was
going to offer each employee a $1-per-hour wage increase to
keep them from voting for the Union. Duane Kent so testified.
While I find this statement occurred in substance as testified to
by Kent, I do not believe that the Respondent thereby violated
the Act. Kent was not at the time an employee of the Respon-
dent, nor had he been for more than 2 years. Their conversa-
tion took place at a bar, and not on or near the Hospital. There
is simply no nexus between what Benefield said and any em-
ployee.
On morning after Denning went to work for the Hospital, he
saw Benefield and stopped to say hello. Benefield “just looked
at me and said, I heard you snitched me off, you son of a bitch.”
This is alleged to have been violative of Section 8(a)(1). I dis-
agree. Denning was not an employee, and in any event, there is
really no implied threat or promise in this statement.
Nevertheless, the established pattern of conduct by Benefield
during the organizational campaign demonstrates interference
with employees engaging in protected activity by threats and
promises of benefits. Through Benefield, the Respondent en-
gaged in the violations of Section 8(a)(1) alleged in paragraph
5, although I will recommend dismissal of paragraphs 5(l) and
(p).
2. The alleged 8(a)(3) violations
a. Ronald Hutchings
Hutchings had worked for the Respondent about 1 year and
was generally considered a good employee, such that before
these events Benefield had expressed the intention to promote
him to sergeant. He was also instrumental in bringing about the
organizational campaign for the Union. He, along with Barron,
solicited employees and passed out cards. He was discharged
on March 15. Schiel made the discharge decision, which was
communicated to Hutchings by Benefield. Since Benefield was
unable to reach Hutchings, he left a message on Hutchings’
answering machine giving the following reasons, according to
Benefield’s testimony: “Inappropriate possession of a master
key while off duty, being in a locked area with a female Hospi-
tal employee and, also, lying to me. He lied to me about the
previous day.”
The General Counsel argues that the asserted reasons for dis-
charging Hutchings are shifting and dubious. Therefore, I
should infer that the true reason was his active part in soliciting
authorization cards. The Respondent argues that it had cause to
discharge Hutchings, as it had previously other employees who
engaged in similar conduct. I agree with the Respondent. Even
if the timing of Hutchings’ discharge with his union activity
make out a prima facie case of discrimination, I believe he
would have been discharged in the absence of such activity.
Thus I conclude that the Respondent met its burden under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981).
The three reasons given for discharging Hutchings all relate
to the Respondent’s reasonably founded conclusion that he had
been having an affair with a female Hospital employee.
Thus on March 13 Hutchings came to the Hospital while off
duty and asked a fellow employee who was on duty for the
master keys. His asserted purpose for needing the keys was to
put a document Kathy Standeford’s office—the woman whom
the Respondent later learned he had been spending a great deal
of time with during duty hours. However, Hutchings also testi-
fied that the reason he was at the Hospital while off duty was to
finish his shift report, which should have been turned in the day
before. What this has to do with his request and use of master
keys is not explained.
In any event, Hutchings did get the mater keys and use them
to enter a Hospital office, without authorization. The Respon-
dent has discharged other employees for the unauthorized use
of master keys. Even though the other incidents involved dif-
ferent circumstances, it is nevertehless difficult to imply an
unlawful motive from this reason.
The next day Hutchings asked and received permission to
leave work for a “rehab” appointment at 9 a.m. When at 9:15
a.m. Benefield did not see Hutchings’ radio in the security
office, he called to find out where Hutchings was. Hutchings
replied that he was in the Medical Office Building (MOB) and
said his appointment was not until 9:30 a.m. Benefield went to
the MOB and found Hutchings with Standeford.
Romaro testified that from about December 1995 he had ob-
served Hutchings and Standeford spending time together.
Hutchings “would perform his duties at times, but most of the
time, he was socializing with her.” “Talking, hugging, kissing,
holding hands.” One time in early February he found them a
stairwell of the MOB. Hutchings asked him not to tell anyone
and he did not. I credit Romaro, and note that he was called a
witness by the General Counsel after Hutchings. Hutchings did
deny the stairwell incident in examination before Romaro testi-
fied. I discredit this denial. Hutchings was not recalled to re-
but Romaro’s other assertions, which include detail not neces-
sary for this decision.
Romaro testified that he finally “was just getting fed up with
doing everything on the day shift” and he told Benefield about
Hutchings and Standeford. According to Romaro this was the
day before Hutchings was discharged.
Benefield testified, also credibly, that on March 14 as Ro-
maro was reporting for work Benefield told him of the master
keys incident. Romaro then asked Benefield to step outside and
HOSPITAL SHARED SERVICES 325
relayed to him that “Ron and Kathy Standeford had been hav-
ing an affair at the Hospital for the last two months and that he
was tired of if because it left him to cover all the calls . . . .”
Romaro also told Benefield the location of their meeting place
on the fifth floor of the MOB.
Although Hutchings admitted that he was in an empty office
with Standeford on March 15, he contends that he was there to
comfort Standeford whose father was in the Hospital with a
heart condition. Though credible as to other matters, Hutchings
testimony about the events the 2 days before his discharge is
not. But even if this is true, the circumstances under which
Benefield found them, along with the other evidence of Hutch-
ings behavior, are sufficient to justify the belief that Hutchings
was engaging in activity for which he should be discharged.
The fact that one engages in union activity does not give him
immunity from discipline or discharge for cause. I conclude
that the credible evidence preponderates in favor of finding that
Hutchings was discharged for cause and not because of his
activity on behalf of the Union. I shall recommend that
paragraph 6(a) be dismissed.
b. The failure to rehire Ty Powell
Ty Powell worked for the Respondent from February 27 to
November 18, 1995, at which time he resigned for a job at the
St. Mary’s Hospital lab. However, by February he was having
some difficulty with coemployees and decided to seek a return
to work for the Respondent. He talked to Benefield who “said
there wouldn’t be any problems, that he would hire me back at
any time when I was ready. He wouldn’t guarantee me how
many hours he could give me or how many days, but he said
he’d be glad to have me back.” Powell also told Benefield that
he would be starting a law enforcement training course in June
or July. Benefield said that would be no problem, that he
would be able work Powell’s hours around school.
On March 14 Powell made the decision to give notice to the
Hospital but he wanted to check again with Benefield to make
sure he had a job with the Respondent. He talked to Benefield
that day and Benefield “told me that he could not rehire me at
that time due to the fact that he had just learned that the security
officers were trying to start a union and that, since I was part of
the original discussion in the union, he could not rehire me
because he’d just be rehiring another vote for the union, and
that he was taking it personally and felt that I was part of that
and part of going behind his back to start this union.” In fact
Powell had been part of the union discussions before he re-
signed.
Benefield went on to say that an election had been scheduled
for March 28 “and that after the election went through, he
would see where it went after that.” Powell testified that he
subsequently talked to Benefield a couple times, and got the
same answer—“that he still couldn’t rehire me due—until after
the election for the union.” Another time, Benefield said that
he had talked to George Speliotis (an assistant director of secu-
rity) who “said the same thing, that he could not rehire me be-
cause they’d be hiring in another vote for the union, and that
we’d just have to wait and see.”
The testimony of Powell is credible and was undenied by
Benefield. Thus it is clear that Powell was not rehired in March
because of his earlier activity on behalf of the Union, and be-
cause of the union activity in general. Further, records of the
Respondent show that jobs were available from and after March
14. Ronnie McDonald was hired on March 22 and Benjamin
Mantz was hired on April 9.
The Respondent argues that Powell’s claim of asking for a
job does not make sense, since he would be leaving a full-time
job for an entry level part-time job with the Respondent. And,
had he been hired Powell would not have been eligible to vote
since the payroll cutoff date was February 17.
Neither of these points address Powell’s testimony of his
conversations with Benefield, who was called as a witness by
the Respondent but was not interrogated about this event. Thus
the overwhelming credible evidence is that Powell applied for
employment and was turned down for reasons violative of Sec-
tion 8(a)(3) of the Act. I shall recommend an appropriate re-
medial order.
REMEDY
The General Counsel argues that the Union had been desig-
nated by a majority of employees in an appropriate bargaining
unit at the time the Respondent embarked on its campaign of
unfair labor practices. Therefore, the remedy should include a
bargaining order, citing NLRB v. Gissel Packing Co., 395 U.S.
575 (1969).
It is alleged that the following is an appropriate unit for pur-
poses of collective bargaining within the meaning of Section
9(b):

All employees of Respondent performing security services at
St. Mary’s Hospital in Grand Junction, Colorado; excluding
all other employees and supervisors as defined in the Act.

This defines a traditional guard unit, the appropriateness of
which the Respondent stipulated in the representation case.
Accordingly I find that such defines the appropriate unit here.
Including Barron, but excluding Benefield, as of January 19
there were 17 employees in the unit, of whom 11 had signed
authorization cards. Thus a clear majority had designated the
Union as their bargaining representative.
The Respondent argues, however, that this majority was
tainted because at least three of the cards were solicited by
Barron, whom the Respondent maintains was a supervisor
within the meaning of the Act. The Respondent argues that the
bargaining unit would be 16, of whom only 7 signed valid
cards. Therefore the Union did not have an uncoerced majority
and a bargaining order would not be an appropriate remedy,
even if some unfair labor practices occurred.
Barron was hired as a security officer on July 29, 1993. On
July 10, 1995, he was promoted to assistant facilities security
supervisor, given the rank of sergeant and an increase in hourly
wages from $6.90 to $7.35. The Respondent argues that he has
been a supervisor within the meaning of Section 2(11) of the
Act in that he has, and has exercised, the power to responsibly
direct employees, adjust their grievances and reward or disci-
pline them.
I disagree. While Barron’s competence was recognized with
a promotion, the evidence is too thin to conclude that he was
given actual supervisory status. He is a relatively long-term
employee whom others look to for some guidance. But this
does not mean he has the power of a supervisor. He was and
remains a security guard. He works the swing shift (4 p.m. to
12 a.m.) along with three others, but he does not direct them,
nor does it appear he exercises independent judgment in telling
the others what to do and how to do it. The guard jobs are
fairly autonomous, with the basic instructions being given in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 326
training, and special instructions by Benefield in the “pass it on
log.”
The Respondent notes that on August 3, 1995, after Bene-
field had made a written report criticizing the behavior of
James Davidson, Barron wrote a reprimand to be placed in
Davidson’s personal file. Barron explained that he wrote the
warning instead of Benefield, because Benefield had been the
object of Davidson’s conduct and he did so at Benefield’s re-
quest. And he worte a reprimand to Robert Leisten for having
11 pieces of nonwork related material, noting that Benefield
had warned Listen about this in the past. I do not believe these
two incidents involved the exercise of independent judgment.
Barron also wrote two letters in which he indicated he had
some kind of managerial status—one to a construction com-
pany and another on behalf of a fellow guard thanking a family
of a patient who had written commending the guard. While
such letters may be some indicia of status, neither prove that in
fact Barron had supervisory authority over other employees.
The Respondent also contends that one weekend when Bar-
ron was off duty, he was called to the Hospital because David-
son and Powell had a conflict involving a horse-play incident.
Barron came as requested and talked to them. Such, I con-
clude, does not amount to adjusting grievances. A senior, re-
spected employees was asked by other employees to help de-
fuse a problem. While this is the kind of thing supervisors do,
that Barron was called on one time does not cloak him with
supervisory authority.
The Respondent also notes secondary indicia of supervisory
status, such as the view of other employees. He certainly was
considered by others to have senior status, and some witnesses
thought of him as their “boss.” And he too considered he had
senior status. He was, after all, a sergeant. However, he wore a
blue shirt, as did the other employees, whereas Benefield wore
a white shirt. Barron was paid 45 cents more than the highest
paid other employee (about 6.5 percent) whereas Benefield was
paid $3 more (about 43.4 percent).
The Respondent notes that if Barron is not a supervisor, then
the ratio of supervisors to employees would be 17 to 1, which is
very high. Whereas, if he is a supervisor, then the ratio would
be a more realistic 8 to 1. Although ratio is a significant con-
sideration, particularly in the industrial setting, where produc-
tion employees are actually directed in their work, it is not of
much importance here. There simply is not a significant
amount of direct supervision of security officers. Thus,
whether there is 1 supervisor to 17 employees or 8 would not
make much difference. Further, since the Respondent’s opera-
tion called for 24-hour-a-day, 7-day-a-week manning, and since
Benefield and Barron each work 40 hours a week, there are 88
hours a week when neither is present. At these times, the secu-
rity officers have no superior on duty, yet manage to do their
jobs with no apparent difficulty. If at these times something
really serious happens, then a more senior person is called, and
that could be Barron. But there is only one reported incident of
something like this happening.
On balance, I conclude that Barron was a senior employee
whose direction of other employees involved routine decisions
and not independent judgment. Thus he is not a supervisor as
defined in the Act. E.g., S.D.I. Operating Partners, L.P., 321
NLRB 111 (1996). Therefore, he would be included in the
bargaining unit and the cards he solicited should be counted.
The Board has many times considered whether an em-
ployer’s unfair labor practices fell within category two of Gis-
sel—the “less extraordinary” cases but of sufficient severity
that dissipating their effects through traditional remedies is
unlikely. The Board has sometimes found the unfair labor
practices not so serious as to warrant a bargaining order. E.g.,
Sangamo Weston, Inc., 273 NLRB 256 (1984).
However, where violations are serious, then a bargaining or-
der is warranted if a majority of employees in an appropriate
unit had designated a representative. And the Board has long
held that “the threat of job loss (i.e., discharge, layoff, and plant
closure) because of union activity is among the most flagrant
kind of interference with Section 7 rights and is more likely to
destroy election conditions, and to do so for a longer period of
time, than other unfair labor practices. Sheraton Hotel
Waterbury, 312 NLRB 304, 305 (1993).
I conclude that the threats here were of such severity. Bene-
field made direct threats of job loss to several employees and
impliedly threatened retribution by stating that if he had known
of the union activity he would have “nipped it in the bud.”
More insidiously, and I believe more seriously, were the re-
peated statements by Schiel that the Hospital would cancel its
contract with the Respondent. He warned, without offering any
factual support, that a wage increase would have to be passed
on and accepted by the Hospital, but it might not do so. If not,
the Hospital would cancel its contract with the Respondent. He
also told employees how the Hospital had treated an organiza-
tional campaign the year previously and how the Hospital was
afraid of strikes. In short, he made the Hospital the “heavy”
implying that if the employees chose the Union, he would be
powerless to stop the Hospital from ceasing to do business with
the Respondent. This was a clear threat of job loss over which
the Respondent would have no control.
The effects of this kind of threat I conclude would be long
lasting and could not easily be remedied by traditional means. I
conclude that a bargaining order in this case is appropriate.
Accordingly, I shall recommend that Respondent cease and
desist from committing the unfair labor practices found and
take certain affirmative action designed to effectuate the poli-
cies of the Act, including making whole Ty Powell for any
losses he suffered from March 14 until June 19, when he was
offered a job, pursuant to the formula set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). I
shall also recommend that the Respondent recognize and bar-
gain with the Union as the duly designated representative of
employees in an appropriate unit.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 3
ORDER
The Respondent, Hospital Shared Services, Inc., Grand Junc-
tion, Colorado, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening job loss and other reprisals should employ-
ees engage in union or other protected, concerted activity.
(b) Attempting to help employees withdraw their authoriza-
tion cards.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
HOSPITAL SHARED SERVICES 327
(c) Soliciting grievances from employees and impliedly
promising to rectify them.
(d) Promising benefits to job applicants if they would work
against union activity.
(e) Interrogating employees about how they intended to vote
in the representation election.
(f) Refusing to hire a job applicant because of his and other
employees’ union activity.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.4
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Ty Powell whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in accordance with the formula set forth in the remedy
section, above.
(b) On request, recognize and bargain with the Union as the
exclusive representative of employees in the following appro-
priate unit concerning terms and conditions of employment and,
if an understanding is reached, embody the understanding in a
signed agreement, the certification year to begin when the Re-
spondent recognizes the Union and begins to bargain in good
faith. The appropriate unit within the meaning of Section 9(c)
is:

All employees of the Employer performing security services
at St. Mary’s Hospital in Grand Junction, Colorado; BUT
EXCLUDING supervisors as defined in the Act and all other
employees.

4 While serious, it does not appear that these are unfair labor prac-
tices warrant a broad remedial order. Crown Cork & Seal Co., supra.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying all pay-
roll records, social security payments records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its
facility in Grand Junction, Colorado, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 27, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained 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.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
The complaint allegations not specifically found are dis-
missed.

5 In the event that the Board’s Order is enforced by a judgment of
the United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall be
changed to read “Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board.”