Indio Community Hospital

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 129 (N.L.R.B. 1976)

INDIO COMMUNITY HOSPITAL 129
Indio Community Hospital and Communications
Workers of America , Local 11588, AFL-CIO.
Cases 21-CA-12970 and 21-CA-13350
June 24, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On March 26, 1976, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products , Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3 , 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge- This
case was heard in Riverside , California , on December 3
and 4 , 1975. The charge in Case 21 -CA-12970 was filed on
September 4, 1974, by Communications Workers of Amen-
ca, Local 11588 , AFL-CIO, herein called the Union. A
complaint based on that charge issued on October 31,
1974, alleging that Indio Community Hospital, herein
called Respondent, violated Section 8(a)(1) of the National
Labor Relations Act, as amended . The matter came on for
hearing before an Administrative Law Judge on January 8,
1975, at which time all the parties agreed to an informal
settlement agreement which was approved by the Regional
Director of Region 21 on January 9, 1975. The Administra-
tive Law Judge adjourned the hearing indefinitely for com-
pliance with the settlement agreement. On January 29,
1975, the Union filed a new charge in Case 2l-CA-13350
alleging that Respondent engaged in a postsettlement vio-
lation of Section 8(a)(3) and (1) of the Act. On March 5,
1975, counsel for the General Counsel moved the Adminis-
trative Law Judge to remand Case 21-CA-12970 to the
Regional Director for Region 21 for appropriate further
proceedings. The motion was granted by order of the Ad-
ministrative Law Judge dated March 12, 1975. On March
17, 1975, the Regional Director vacated and set aside the
settlement agreement in Case 21-CA-12970. On March 19,
1975, the Regional Director issued an order consolidating
Cases 21-CA-12970 and 21-CA-13350, and a consolidat-
ed amended complaint alleging that Respondent violated
Section 8(a)(1) and (3) of the Act.
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging Juanita Savoy because of her
activities on behalf of the Union.
2. Whether the settlement agreement was properly set
aside, and if it was properly set aside whether Respondent
violated Section 8(a)(1) of the Act by threatening employ-
ees with loss of employment or discharge if they supported
the Union, and by promising employees increased benefits
relating to a pension plan to discourage union support.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the operation of
an acute proprietary hospital in Indio, California. Respon-
dent annually derives gross revenue in excess of $250,000.
It annually purchases and receives goods valued in excess
of $50,000 from suppliers located in California who in turn
purchase and receive those same goods directly from sup-
pliers located outside of California. The complaint alleges,
the answer admits, and I find that Respondent is an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
It. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
225 NLRB No. 17
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
1. The setting
Respondent operates a proprietary hospital in Indio,
California. Surgery is performed in an operating room,
called the OR, within the Hospital. The OR is customarily
staffed by registered nurses, called RN's, licensed voca-
tional nurses, called LVN's, and a housekeeper. On De-
cember 2, 1974, Juanita Savoy underwent a surgical opera-
tion and was placed on leave of absence.' Prior to her leave
of absence , Savoy was an LVN scrub nurse in the OR. As
a scrub nurse, she was required to "scrub" for surgically
sterile operations and to hand the sterile instruments to the
doctors who performed the operations. On January 20,
1975, while Savoy was still on leave of absence, Respon-
dent laid her off. The General Counsel contends that the
layoff was motivated by Savoy's union activity. Respon-
dent contends that it laid off Savoy because the OR was
overstaffed
2. Savoy's union activity and Respondent's knowledge
thereof
Savoy began her employment as an LVN with Respon-
dent in October or November 1971 At that time she was
assigned to general floor care. During the early part of her
employment she worked for about 7 months on the night
shift from 11 p.m. to 7 30 a.m. For about 6 weeks in 1973
she was off work because of an injury. For the last year of
her employment with Respondent she was assigned to
work as a scrub nurse in the OR Respondent considered
her to be a good worker. She was given raises on July 1 and
November 17, 1974. She also received a favorable written
evaluation. Pamela Buxton, who was director of nurses 2 at
the time Savoy was laid off, credibly testified that she had
complimented Savoy on her climb through the ranks as a
nurse and on her good work. She also credibly testified that
Savoy was a good and industrious nurse.3
In the latter part of April 1974, Savoy contacted repre-
sentatives of the Union and began to organize
Respondent's employees on the Union's behalf. Savoy cir-
culated showing of interest cards for the Union and openly
talked with the employees regarding the benefits of union-
ization . She organized an in-plant union committee. In ad-
dition she held four union meetings at her home. Respon-
dent had knowledge of Savoy's activities on behalf of the
Union. Buxton admitted that beginning in April and May
i At the time she went on leave of absence , Respondent did not have any
forms available for such leaves and Respondent did not put in a written
request for her leave However , Respondent treated her as being on leave of
absence and Respondent concedes that her subsequent layoff was unrelated
to the lack of written request
2 The complaint alleges, the answer admits , and I find that Buxton was a
supervisor within the meaning of the Act
9 As is set forth in more detail below, Savoy did have some personality
difficulties with certain coemployees and on one occasion she was given a
reprimand by Respondent However, Respondent concedes that the layoff
was not based on any misconduct of Savoy
1974 she saw Savoy and knew that Savoy was campaigning
on behalf of the Union. Savoy's immediate supervisor, Sus-
anne Caldwell, who was OR supervisor,4 admitted that
during the summer of 1974 she knew about Savoy's union
activity. On one occasion during that summer she went to
Savoy's house to pick up her (Caldwell's) daughter who
was being looked after by Savoy's daughter. She arrived at
Savoy's house shortly before a union meeting was to begin
and at that time she spoke to some union agents. Caldwell
credibly testified that she allowed Savoy to leave work ear-
ly so that Savoy could go home to prepare for the union
meeting. Iva French, who was Respondent's hospital ad-
nunistrator,5 also acknowledged that she knew that Savoy
was very active for the Union from the very beginning of
the campaign.
3. Buxton's remarks to Savoy in mid-July 1974
On July 3, 1974, the Union filed a petition for an elec-
tion
About mid-July, Savoy was called into the office of Di-
rector of Nurses Buxton. There is a sharp dispute as to
what was said at that meeting. Savoy testified to the follow-
ing. Buxton told Savoy that she (Buxton) wanted to talk to
her about the union activities that were going on among
the LVN's in the Hospital; Buxton said that she wanted
Savoy to stop organizing and to stop the union activities;
Buxton said that if Savoy had to organize, Buxton wanted
to encourage her to do so through the nursing association;
Savoy replied that the nursing association was not strong
enough to give them the representative they needed; and
Buxton then said, "Juanita, I want you to know that you
can get yourself into real hot water by doing this." Savoy
also testified that she told Buxton that Buxton had broken
the law; that Buxton replied that she had not and that she
was caught in the middle; and that Savoy replied that she
realized that Buxton had to say what she was told to say.
Buxton, in her testimony, acknowledged part of the con-
versation and denied other parts. Buxton testified to the
following: Buxton called Savoy in to discuss a progress
review and merit increase. Buxton complimented Savoy on
her climb through the ranks as a nurse and on her good
work. Buxton said that the LVN's were attempting to ob-
tain professional status, such as that held by RN's, and
that it might be better for Savoy to work through one of the
professional associations, such as the California Nurses As-
sociation, rather than an outside labor organization.' Bux-
ton testified that she did not tell Savoy that she wanted to
talk to Savoy about the union activity; that she did not tell
4 Caldwell had authority to issue written warning notices, to evaluate
nurses in the operating room for promotions , and to authorize employees to
go home early I find that she was a supervisor within the meaning of the
Act
5 French was a supervisor within the meaning of the Act
6 In her initial testimony Buxton testified that she did not know whether
the California Nurses Association was discussed and that she suggested that
Savoy start activity with the California Licensed Vocational Nurses Associ-
ation In that initial testimony Buxton averred that she suggested to Savoy
that Savoy advance her professionalism through that organization or an
organization like it After reviewing her affidavit, she recalled that she had
suggested that Savoy work through one of the professional associations,
such as the California Nurses Association , rather than an outside labor
organization
INDIO COMMUNITY HOSPITAL 131
Savoy that she wanted Savoy to stop organizing at the Hos-
pital; that she did not tell Savoy that Savoy could get her-
self in trouble; and that nothing was said about Buxton
being in the middle. Buxton averred that she did recall
something being said about her having broken the law.
As between Buxton and Savoy, I credit Buxton. Buxton
was no longer employed by Respondent at the time of the
hearing. In April or May 1975, Respondent merged with
another hospital and Buxton's position was eliminated. She
now has an on-call teaching position at College of the Des-
ert. It is possible, of course, that she has an interest in the
proceeding in that she may desire a reference from Re-
spondent at some future time, but she impressed me while
she was on the stand as a witness who was not personally
affected by the outcome of this proceeding and who was
trying to relate the facts as accurately as she could remem-
ber them. She did not hesitate to admit that she did try to
encourage Savoy to become active in a nurses organiza-
tion. Savoy's testimony, viewed as a whole, convinced me
that she was not always candid. As set forth below, I be-
lieve that her testimony concerning certain company-held
meetings was exaggerated. In addition, also as is discussed
below, I believe that her version of a postdischarge conver-
sation with Buxton was not reliable.
In sum, I find that Buxton called Savoy into the office of
the director of nurses and told her that it might be better
for her to work through one of the professional associa-
tions such as the California Nurses Association, rather
than an outside labor organization. I do not credit Savoy's
testimony that Buxton told her that she (Savoy) could get
herself into real hot water through her activity on behalf of
the Union. Nor do I credit Savoy's other assertions that are
contradicted by Buxton.'
we don't generate earnings . . . if that happened, we'd
soon be out of business. We've got four hospitals in
this area-Desert Hospital in Palm Springs, Eisen-
hower Memorial Hospital in Palm Desert, Valley Me-
morial and us in Indio. If our doctors don't like the
way we are handling things, they simply admit their
patients elsewhere. Without patients, we can't cover
our expenses, much less have the money to raise sala-
ries and benefits that I personally have always pushed
as hard as I know how, to get for our employees.
* * * * *
Many doctors believe patient care drops when a
hospital becomes unionized. This has happened at one
of our sister AMI hoppitals-Westminster Hospital in
Orange County, California. One of the two unions
trying to get into our hospital here has gotten into
Westminster Hospital and patient care has dropped
off. Many doctors don't like to put patients into hospi-
tals that don't provide good patient care. And, with
the competition we have from Eisenhower, Desert,
and Valley hospitals, that becomes a very real concern
to me. As you know, we don't have any control over
what doctors do or don't do. Patients providejobs for
all of us and if patient counts go down at our hospital,
that means fewer jobs. After experimenting with
unions for a year at Westminster Hospital, employees
there have filed a petition to get the union out. The
union not only hasn't done anything for the employees
there, it has upset employees because patient care has
fallen off. We'll tell you more about the union situa-
tion at Westminster Hospital and the problems the
union has created there in future meetings.
4. The company meetings with employees
Respondent held three series of meetings with employ-
ees. The first was on August 27, 1974. Savoy attended a
meeting on that date which was conducted by Hospital
Administrator French. About 10 or 12 employees were
present at that meeting. Respondent's labor consultant,
Fred Long, was also present. Before the meeting, French
and Long had prepared a written presentation. French
read it to the employees. During her presentation, French
told the employees, in part, as follows:
.. . We've got to worry about doing the best we know
how to do for the employees of the hospital and that is
a big responsibility. We've got to be able to get along
with the doctors practicing in our area and that some-
times leaves me with a migraine headache when I go
home at night. Doctors and employees are both crit-
ical ingredients to a hospital . . to make that hospital
able to best serve our patients.
What do I mean by this? Well, first of all, if we
don't have doctors admitting patients to our hospital,
7 Savoy also testified that about 3 weeks before the election , which was
held on September 27, 1974, she passed Buxton in the hall and Buxton said
that she (Buxton) was concerned about the union activities because they
were pitting friend against friend Buxton testified that she did not recall
any such conversation I do not credit Savoy
I think we have room for improvement in some ar-
eas, but we 've got to start making money before we
can start making improvements. For example, there
have been studies made over the past year and a half
to implement a pension plan at this and other Amen-
can Medicorp hospitals . We are all hopeful that such a
plan will become effective the beginning of next year.
However, there is more to getting such a plan than just
saying "Let's put one in ." The kind of plan our hospi-
tals in the American Medicorp group are planning to
have is non-contributory; that means the employees
pay nothing ; the hospital pays all the cost. Such a plan
would cost our hospital $60,000 a year on the basis of
our best estimates. That means we've got to get our
patient census up to be able to earn that $60 ,000 need-
ed to pay for such a program. There is no way in the
world we can have a pension plan like we have been
planning on unless and until we have the money to
pay for it.
French went on to explain the benefits already provided
by Respondent . She passed out a "bank book" which
showed employee benefits . She told the employees: "So,
now, NOT ONE , but TWO unions come along. They are a busi-
ness, dust like any other business . They have one and only
one objective in mind . . . and that is to start collecting
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
money from you." French then wrote on a blackboard fig-
ures relating to union dues. She told the employees that
unions can make all the promises in the world but they
could not guarantee a thing. She also told them that the
only thing a union could guarantee was that union dues
would be deducted from the paycheck each month and she
passed out some cards with a red dot with the explanation
that union dues would be paid until they blew on the dot
and it turned blue. She also passed out a "union guaran-
tee" sheet which read:
To show you union promises aren't worth a plugged
nickel, have the union organizer sign these written
guarantees:
1. I guarantee that employees of Indio Comunity
Hospital will receive a wage increase of cents
an hour if our union gets in.
2. I guarantee that employees will get a pension
program in the very first contract we negotiate with
the hospital.
3. I guarantee that the union will guarantee each
employee's job at the hospital even if the patient cen-
sus drops.
4. 1 guarantee that if the union gets in there will be
no strikes at the hospital.
5. I guarantee that employees of the hospital will
not be fired for cause.
6. I guarantee that the union will force the hospital
to hire more employees.
7. I guarantee that doctors won't put patients at
Palm Springs, Eisenhower and Valley Hospitals, if the
union gets in at ICH.
After each paragraph there was a blank for a union
organizer's signature and a date. The "guarantee sheet"
ended:
I, , the union organizer guarantee the
above items I have signed and give each employee
the right to sue my union for breach of these guaran-
tees, as the agent of my union.
Union Organizer's Signature Date
French told the employees, in substance, that the Union
had promised them the things mentioned in the guarantee
sheet and told them to see if the union organizer would
sign it.
The above findings are based on the credited testimony
of French which was corroborated in large measure by
Long and Margaret Hardy, an LVN currently employed by
Respondent.
Savoy testified that French told the employees that Re-
spondent had been working on a pension program which
would be paid for by Respondent and that if the Union got
into the Hospital it was very likely that the employees
would not get that pension program because the Union
would negotiate its own contract and its own pension pro-
gram. Savoy also averred that French told the employees
that if Respondent operated at a profit and if the Union
didn't get in, the employees would get the pension program
that Respondent had been working on. Belle Terry, an RN
who is currently working for Respondent and who testified
on behalf of the General Counsel, averred that French said
that a pension plan was being considered and that if things
continued to go well at the Hospital that they would come
up with a pension plan for the employees. French testified
that the only thing she said about pensions was as is set
forth in the findings above. Her testimony was corroborat-
ed by Hardy and Long. I do not credit Savoy's testimony
concerning the pension plan.
Savoy testified that French told the employees if there
was a strike that those employees would be replaced be-
cause she had sick people to take care of. Savoy also testi-
fied that French said the employees would strike. Terry, in
her testimony, did not refer to any such remark by French.
French, Long, and Hardy denied that any such remark was
made. I do not credit Savoy with regard to this "strike"
remark.
Savoy testified that French told the employees that she
had taken a poll of the doctors at Respondent and that it
was their opinion that if the Union got into Respondent
the quality of patient care would decrease and that it had
decreased at other hospitals. Savoy also averred that
French told the employees that if the Union got into the
Hospital and the quality of patient care decreased, that
doctors would be forced to take their patients elsewhere
where they would receive quality patient care. Terry cor-
roborated Savoy with regard to those remarks. Terry
averred that French said that a survey had been taken
among doctors who brought patients into the Hospital and
that they felt if the Union was successful that there would
be a decline in the quality of patient care so that they
would probably take their patients to other hospitals. Har-
dy, Long, and French denied that there was any reference
to polls. I credit French's testimony, the details of which
are set forth in the findings above. She had carefully pre-
pared her presentation in writing with the help of Long and
I believe that her recollection of what was said was more
accurate than Terry's. I do not credit Savoy. It is noted
that French was not employed by Respondent at the time
of the hearing In April or May 1975, American Medicorp,
which owned Respondent, sold the Hospital to a group of
physicians that owned Valley Memorial Hospital. At that
time she remained in Respondent's employ as assistant ad-
nunistrator. Later while she was on leave of absence she
was laid off
Savoy testified that at later meetings French made re-
marks about union stewards and union fines. There is no
corroboration for Savoy's testimony in that regard. The
substance of that testimony was denied by French and
Long. I do not credit Savoy where her testimony differed
from that of French and Long concerning what occurred at
the meetings I do credit the testimony of French and Long
that Savoy spoke in favor of the Union for about 5 minutes
during the second meeting.
5. The election, Caldwell's remark about the objections,
Savoy's warning notice, and the settlement conference
On September 27, 1974, agents of the Board held an
election in two separate bargaining units of Respondent's
employees. A majority of the employees in each unit voted
INDIO COMMUNITY HOSPITAL 133
against representation by the Union.8 Thereafter the Union
filed objections to the election.
Sometime in November 1974, Savoy told OR Supervisor
Caldwell that someone had called from the Board asking
for Belle Terry's home address Caldwell asked which
board, and Savoy replied that there was some kind of suit
being brought against the Hospital with regard to the elec-
tion . Caldwell said that it seemed silly to her that the
Union would bring some kind of suit against the Hospital
because the Hospital won so overwhelmingly.9
For some time before October 18, 1974 Caldwell had
been receiving reports that Savoy was having difficulty get-
ting along with other employees in the OR. On March 12,
1974, Caldwell received a report on that matter from Savoy
herself. On that date Savoy wrote a note to Caldwell which
began: "This is not a letter of resignation. I just plain quit.
reasons: 1. Personality conflict! (I cannot now nor will I
ever be able to work with Mrs. Metzger 8 hours a day 5
days a week plus overtime.) . ..." Thereafter there were
complaints about Savoy from employees Wilson, Metzger,
and Parker. During the summer of 1974 Terry complained
to Buxton about tension in the OR On October 18, 1974, a
written warning was given to Savoy which was signed by
Buxton and Caldwell. She had never received a written
warning before. The warning mentioned personality con-
flicts with other employees in the OR However, on No-
vember 17, 1974, Savoy was granted another increase in
pay.
The original complaint in Case 21-CA-?2970 (which al-
leged that Respondent threatened employees with dis-
charge if they supported the Union and also threatened
employees at the August 27, 1974, meeting) was consolidat-
ed with the Union's objections to the election and the en-
tire matter was scheduled to be heard before an Adminis-
trative Law Judge on January 8, 1975. At the hearing, the
unfair labor practice case was settled and the representa-
tion case was severed and remanded to the Regional Direc-
tor with the understanding that the Union was tendering a
withdrawal of the objections in the representation case. By
order dated January 16, 1975, the Regional Director ap-
proved the Union's request to withdraw the objections and
certified the results of the election.10 Savoy appeared at the
hearing on January 8, 1975, on behalf of the Union. Long,
French, and Buxton were also present. Savoy participated
8 The first unit included all employees except doctors , registered nurses,
guards , and supervisors Of the 121 eligible voters , I cast a void ballot, 20
voted for the Union, 2 voted for Service Employees International Union,
Local 102, AFL-CIO, and 78 voted against the participating labor organiza-
tions In addition there were eight challenged ballots The second unit con-
sisted of registered nurses and excluded professional employees , guards, and
supervisors Of 31 eligible employees, 20 voted against the participating
labor organizations , and there were 8 challenged ballots No votes were
counted for the Union The election was based on a stipulation for consent
election agreement
9 These findings are based on the credited testimony of Caldwell Cald-
well resigned as OR supervisor when the hospital was purchased by the
other hospital and she accepted a job as RN A month later she resigned
from that and left Respondent 's employ She was not working for Respon-
dent at the time of the hearing Savoy 's testimony with regard to the inci-
dent was similar to that of Caldwell To the extent it differed I credit Cald-
well
10 The representation case has not been reconsolidated with the instant
unfair labor practice case
in the settlement discussions on behalf of the Union. At the
time she was on leave of absence, a status that she had
been in since December 2, 1974.
6. Savoy's leave of absence, the layoff, the fob offer, and
the discharge
On December 2, 1974, Savoy underwent an operation at
Respondent's Hospital for the removal of a possibly can-
cerous growth on an ovary. Though the growth was non-
malignant Savoy underwent a hysterectomy. She was in the
Hospital for 14 days but there were postoperative infection
complications for which she received treatment at home
and at her doctor's office. On the day of the operation she
went on leave of absence status. Respondent 's written em-
ployee manual relating to leave of absence provides in
part: "An approved leave other than military or fury duty
does not guarantee that your position or an identical posi-
tion, or any position, will be held open." Savoy's doctor did
not certify that she had recovered sufficiently to be able to
return to work until February 13, 1975. After she went on
leave of absence on December 2, 1974, Savoy never called
Respondent with information concerning when she expect-
ed to return to work. At one point while Savoy was out on
leave of absence one of the nurses called her to see how she
was getting on. Caldwell got on the phone and spoke to
her. Caldwell asked when Savoy thought she would be
going back to work and Savoy replied that she was not
sure, that she had an appointment with her doctor, and
that the doctor should let her know. Savoy did not call
Caldwell back.
On January 20, 1975, while Savoy was still on leave of
absence, Buxton wrote to her as follows:
I regret to inform you, that due to our recent acute
shortage of personnel in the Surgery Department and
the heavy case load in that area over the holidays, I
have had to restaff positions there.
Due to the foregoing conditions, you are laid off as
of Monday, January 20, 1975.
Enclosed is two weeks pay in lieu of notice.
On January 29, 1975, the Union filed the charge in Case
21-CA-13350 alleging that Savoy was unlawfully laid off.
In February 1975, one of the LVN's working on the hos-
pital floor gave notice that she would be leaving. Buxton
told a Mrs. DeCuir of Respondent's payroll department to
call Savoy and tell her of the opening. On February 27,
1975, DeCuir called Savoy and told her that there was an
opening on the 11 p.m. to 7 a.m shift with three nights'
work on general floor duty and two night's relief work in
the intensive care unit. Savoy said that she would take it
and DeCuir reported back to Buxton that Savoy had ac-
cepted the position. On March 6, 1975, Savoy called Bux-
ton regarding the schedule. Buxton told her the schedule
and reminded her to bring in an updated license and her
doctor's permission to return to work. On March 7, 1975,
Savoy called DeCuir and said that she would only accept
the position of LVN in the OR. Savoy testified that she
considered surgery to be one of the preferred places to
work. While working in the OR her hours were 7 a.m. to
3:30 p.m with a substantial amount of overtime and "call
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay." While working in OR she received $10 a day "call
pay" for being available to work after the hours that were
normally worked. In a 14-day period she was generally on
call for 5 to 7 days. No "call pay" was paid for general
floor work or intensive care work. However, if she had
taken the night-shift position that was offered to her she
would have received a night-shift premium of 10 percent.
In addition LVN's in the intensive care unit work a good
deal of overtime.
On March 7, 1975, Hospital Administrator French wrote
to Savoy unconditionally offering her recall from layoff
status to fill a position as LVN to replace an LVN who was
leaving the Hospital effective March 10, 1975. The letter
mentioned the previous conversations with Savoy and told
her that she was expected to return to work within 10 days
after receipt of the letter or her employment would be ter-
minated . The letter went on to say:
We have only one (1) LVN classification at this hospi-
tal. Upon your return to work here, your rate of pay
will be the same as you were being paid while in the
Operating Room. Your benefits remain the same and
all other aspects of employment remain the same as
before. This opening we are offering is the only open-
ing we have for an LVN at the present time to which
we can recall you. There is no logical reason, therefor,
for you to reject this unconditional offer of reinstate-
ment from layoff. We have continued your employ-
ment layoff status since our letter to you dated Janu-
ary 20, 1975. We wrote that letter so that you could
collect unemployment compensation. Unless we hear
from you within ten days after receipt of this Certified,
Return Receipt Requested, letter, your employment at
Indio Community Hospital will be terminated for re-
fusal to return to work from layoff, and the State Un-
employment Compensation Board will be so notified.
Savoy did not reply to the letter and on March 19, 1975,
she was terminated by Respondent.
On or about May 1, 1975, Buxton's employment was
terminated . Sometime thereafter Buxton met Savoy in the
state unemployment office. Savoy testified that they had a
conversation in which Buxton told her that it was just as
well that she (Savoy) couldn't take Respondent 's reinstate-
ment offer "because that was a set up." Savoy also testified
that Buxton told her that it was just between Savoy, herself
and the gate post and that if Savoy repeated it, she (Bux-
ton) would call Savoy a liar. Buxton, in her testimony, de-
nied making any such remarks. I believe Buxton to be a
candid, credible witness and I have serious reservations
concerning Savoy's veracity. I credit Buxton's denial.
7. The circumstances surrounding Savoy's layoff
Immediately prior to Savoy's leave of absence on De-
cember 2, 1974, there was a staff of seven in the OR. They
were RN and OR Supervisor Caldwell, RN's Terry and
Parker, LVN scrub nurses Savoy, Wilson, and Metzger,
and housekeeper Duran. Savoy underwent her operation
on December 2, 1974, and she was not released by her
doctor to return to work until February 13, 1975. On De-
formed Caldwell that she would be out of work for 4 to 6
weeks. About January 1, 1975, Wilson called Caldwell and
told her that it would be another 3 or 4 weeks before she
came back She called again on or about January 14 and
said that she was coming back. She began work again on
January 20, 1975. About December 2, 1974, housekeeper
Duran ii suffered an accident involving a broken bone for
which hospitalization was required. Duran came back to
work between January 10 and 20, 1975. About mid-De-
cember 1974 Caldwell was notified of a death in her fam-
ily. She was on emergency leave from the OR for about 3
weeks from mid-December 1974 through early January
1975. During that time Terry was acting OR supervisor.
In December 1974 the OR was very busy and was under-
staffed because of the various absences mentioned above.
While Caldwell was on emergency leave and Terry was
acting OR supervisor, Terry repeatedly requested Buxton
to find additional help. On December 16, 1974, Maria Al-
onzo was assigned part time to assist in the OR. She had
been an LVN working as a floating nurse who was as-
signed where she was needed in the Hospital Prior to De-
cember 16, 1974, Alonzo had no experience as a scrub
nurse and on that date they began to train her. At first she
worked 2 or 3 days a week and later she was put on full
time Terry credibly testified that at the time of Savoy's
layoff Alonzo was still not fully trained and was not as
qualified as Savoy. Terry also credibly testified that Savoy
was a very good scrubber. Also in December 1974, LVN's
from general floor care were sometimes assigned to the OR
to help in the recovery room. When Caldwell returned
from her emergency leave in early January 1974, the OR
was still understaffed and she also requested additional
help from Buxton. On January 13, 1975, Robert Watts was
assigned to the OR as an OR technician. An OR technician
cannot administer medication but he can scrub and put
away instruments. Watts had been working as a relief em-
ployee in the laboratory on weekends During the first part
of January he applied for a job in the OR. He had had 6
months' formal training from the College of the Desert as a
surgical technician and he requested a transfer to a full-
time position as surgical technician. He began work in the
OR on January 13, 1975. Terry credibly testified that
Watts did not grasp his duties quickly and that his perfor-
mance was not as good as Savoy's.
Every other week, when a payroll came out, Hospital
Administrator French reviewed the payroll records, the pa-
tient census, and other data that would indicate what staff-
ing was necessary throughout the Hospital. She had out-
standing instructions from her supervisor, Kenneth Hahn,
who was the group director of American Medicorp, to fol-
low certain guidelines relating to staffing based on patient
census. When layoffs were required under those guidelines
it was her practice to call in the department head who was
in charge of the overstaffed department and explain the
need for a cutback. The practice was to lay off employees
first who were on leave of absence and then employees
with least seniority. As noted above Respondent's employ-
ee manual provided that people on leave of absence would
cember I or 2, 1974, Wilson broke her hip and she in- 11 The housekeeper 's function was to keep the OR clean
INDIO COMMUNITY HOSPITAL
not be guaranteed their jobs back. Laid-off employees
were , however, eligible for immediate recall when more
employees were needed . It was not uncommon for employ-
ees on leave of absence to be laid off.12 Indeed French
herself, after Respondent merged with another hospital
and after she was demoted to assistant administrator, went
on leave of absence and while she was on such leave she
was laid off.
On January 15 or 16, 1975, French met with Buxton and
they reviewed the records that showed the number of full-
time employees (called full-time equivalents), the hours
worked and costs on the OR. At that time there were nine
full-time employees listed as staffing the OR , including
those on leave of absence. Caldwell had returned, Terry
and Parker were still working, Wilson was scheduled to
return within a matter of days, Metzger was still working,
Duran had either returned or was shortly about to return,
and Watts and Alonzo were working Savoy was still on
leave of absence and Respondent didn ' t know when she
would return.
Employees on leave of absence status did not receive pay
and were not guaranteed their jobs back, so it would ap-
pear that Respondent would have little to gain by laying
them off before they asked to return to work. However,
Buxton credibly testified that employees on leave of ab-
sence status were counted in determining staffing quotas
and when the quotas were overfilled the employees on
leave of absence were laid off. Respondent's past practices
appear to be consistent with that testimony.
On January 15 or 16, 1975, when French met with Bux-
ton to review staffing requirements, there were nine full-
time employees listed in the OR including those on leave of
absence, and the guideline that French was required to
follow allowed only seven full-time employees in the OR.
In addition, at that time the work in the OR had dropped.
French told Buxton that she was overstaffed in the OR and
that some action should be taken immediately. Buxton
spoke about the matter to OR Supervisor Caldwell and
told her that French had said that they could not have
more than seven or eight people in the OR. Buxton said
they would have to lay someone off. Caldwell told Buxton
that Alonzo was progressing very well and there was much
less personality tension in the OR with Alonzo rather than
Savoy. They agreed that Savoy would be laid off. At that
time Buxton did not know when Savoy could return. Bux-
ton credibly testified that one of the things that she consid-
ered was that if Savoy was laid off she (Savoy) would be
able to collect unemployment insurance. Savoy was laid off
on January 20, 1975. Later Buxton reported back to
French and told her that Savoy had been laid off.
12 Pharmacist Joe Jarried had become very ill and went on leave of ab-
sence He was not released to work by his doctor and subsequently he was
laid off and then terminated Vada Tatum had a serious eye injury and also
had not been released by her doctor to go back to work She went on leave
of absence and subsequently her position was eliminated and she was laid
off Lois Snodgrass , who is a registered nurse, was laid off while she was on
leave of absence for sickness The record does not indicate when those
layoffs from leave of absence status occurred other than that they were in
1973, 1974, or 1975 RN Ruth Judd went on leave of absence in the spring
of 1974 While on leave of absence she was laid off In October 1973 nurses
aide Minnie Harris went on leave of absence and while she was on such
leave her position was eliminated and she was laid off
B. Analysis and Conclusions
1. The layoff of Savoy
135
Savoy was extremely active on behalf of the Union. She
contacted the Union, circulated showing of interest cards
for the Union , openly talked with employees regarding the
benefits of unionization , organized an in -plant union com-
mittee , held union meetings at her home , spoke in favor of
the Union at a meeting held by Respondent , and spoke on
behalf of the Union at the settlement conference on Janu-
ary 8, 1975 Respondent admittedly knew of her union ac-
tivity.
Respondent harbored an animus against the Union.
That animus was expressed in mid-July 1974, when Direc-
tor of Nurses Buxton called Savoy into her (Buxton's) of-
fice and told Savoy that it might be better for Savoy to
work through one of the professional associations such as
the California Nurses Association, rather than an outside
labor organization . The animus was much more dramati-
cally expressed by Hospital Administrator French in her
meeting with employees on August 27, 1974. French told
the employees in only slightly veiled terms that their fobs
depended on their remaining nonunion. She pointed out
that doctors admit patients to hospitals; if doctors did not
admit patients to Respondent it would soon be out of busi-
ness; many doctors believed patient care drops when a
hospital becomes unionized , many doctors don't like to put
patients into hospitals that don't provide good patient
care, there were competing hospitals to which doctors
could refer patients, Respondent didn't have any control
over what doctors did or didn't do; and patient care pro-
vided jobs and if patient count dropped at Respondent it
meant fewer jobs. French emphasized her point by request-
ing the employees to ask the Union to sign a guarantee that
doctors would not put patients at competing hospitals if
the Union got in at Respondent. French pointed out to the
employees that if doctors didn't like the way Respondent
handled things they simply would admit their patients else-
where and that without patients Respondent couldn't cover
expenses much less have money to raise salaries and bene-
fits. She told them that Respondent had been having stud-
ies made for over a year and a half to implement a pension
plan and that they were all hopeful that such a plan would
become effective the beginning of the next year. She also
told them that there was no way in the world that they
could have a pension plan like the one they were planning
unless and until they had money to pay for it. The message
to employees was clear-if there was a union there would
be less referrals from doctors, less income , and no pension
plan This also was reinforced by French's request that the
employees ask the Union to guarantee that the employees
would get a pension program in the very first year it negoti-
ated with the Hospital. French's remarks to the employees,
which are set forth in detail in the findings above, establish
that Respondent was violently hostile toward the Union.
Respondent laid Savoy off on January 20, 1975, which
was only 12 days after she had manifested her continued
support of the Union by participating in the settlement
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussions on behalf of the Union at the January 8, 1975,
hearing. t 3
Respondent 's contention that it had to lay off Savoy be-
cause it was overstaffed in the OR raises some questions.
While Savoy was on leave of absence she was in a nonpay
status and she did not have any right to return. From a
business point of view Respondent had nothing to lose by
waiting until Savoy asked to return and then deciding
whether there was an opening or not . However Buxton's
credited testimony and Respondent's past practices estab-
lish that Respondent did lay off employees when they were
on leave of absence status. Indeed French, when she was
assistant hospital administrator , was laid off while she was
on leave of absence status. Respondent counted employees
who were on leave of absence in determining the number
of employees who were staffing a department. The credited
evidence establishes that in mid -January 1975 the OR was
staffed with nine employees and the quota for the OR was
seven employees.
Respondent laid off Savoy while keeping in its employ in
the OR two less experienced employees, Alonzo and Watts.
However, on January 20, 1975, at the time Savoy was laid
off, Respondent did not know when Savoy would be able
to return. In addition Buxton had been told that Alonzo
was progressing very well and there was much less person-
ality tension in the OR with Alonzo rather than Savoy.
Though Respondent, as shown by its conduct, was most
anxious to prevent unionization, Savoy's layoff on January
20, 1975, could have contributed little toward that goal.
The Union had lost the election on September 27, 1974.
While objections were outstanding there was the possibility
of a new election. However, on January 8 and 9, 1975, the
outstanding unfair labor practices were settled and on Jan-
uary 16, 1975, the objections to the election were with-
drawn and the results of the election were certified. At that
point it appears that the Union was out of the picture. By
laying off Savoy, who was the Union's chief spokesman,
Respondent took the chance of reactivating union activity
through the renewal of unfair labor practice charges. If it
left her on leave of absence status that risk was minimized.
Respondent 's labor relations consultant Long impressed
me when he testified as an extremely pragmatic man. His
orchestration of the antiunion campaign indicated that he
was very anxious to keep the Union out of Respondent's
premises. The layoff of Savoy would not, under the circum-
stances here, have helped him in that aim.
On February 27, 1975, Respondent offered Savoy an op-
portunity to return to the Hospital as LVN on the night
13 It is also noted that the only written warning that Savoy received,
which related to personality conflicts in the OR , was given about the same
time that OR Supervisor Caldwell told her that she thought it was silly of
the Union to file a suit over the election Though the timing of the warning
does raise some question , it is clear that Savoy did have difficulties in get-
ting along with other employees in the OR Savoy had gone as far as to quit
because of such personality conflicts and a number of employees had com-
plained about Savoy If Caldwell was hostile to the Union that hostility was
not even sufficient to keep her from allowing Savoy to leave work early in
order to prepare for a union meeting In addition Savoy received a pay raise
not long after the warning Taking all these matters into consideration I do
not believe that a finding is warranted that the warning was related to
Savoy 's union activity
shift with three nights' work on general floor duty and two
nights' relief work in the intensive care unit. The charge
alleging that Savoy was unlawfully terminated was filed on
January 29, 1975, and it is possible that Respondent was
merely trying to cut its potential backpay liability. Howev-
er, the fact that the offer was made does indicate that Re-
spondent was willing to have Savoy back at the Hospital.
There is no credible testimony that Respondent was trying
to "set up" Savoy or to give her an offer that she would
refuse. Respondent had no way of knowing that Savoy
would refuse the offer. In fact, Savoy initially accepted the
offer on February 27, 1975, and only notified Respondent
of her change of mind on March 7, 1975. Once Savoy was
back in the Hospital she could have been equally an advo-
cate of the Union whether she was working in the OR or in
other areas of the Hospital . Respondent had nothing to
gain by keeping her out of the OR if it believed she was
needed there.
Caldwell, Buxton, and French were the three supervisors
who were involved in the decision to lay off Savoy. They
all testified that they knew about her union activity and
that the union activity had nothing to do with her layoff.
At the time they gave their testimony none of them were
employed by Respondent. French had been laid off while
she was on leave of absence. Buxton 's job had been elimi-
nated after the merger. Caldwell gave up her supervisory
position and then left Respondent's employ. All of them
had some reason to feel hostility toward Respondent Con-
sidering all of the circumstances described above, and after
listening to them testify, I believe that they were telling the
truth.
Some of the evidence described above raises strong sus-
picions with regard to Respondent 's motivation in laying
off Savoy . However, suspicions are not enough to establish
the General Counsel's case and I believe that, viewing the
evidence as a whole, the General Counsel has not estab-
lished by a preponderance of the credible evidence that
Respondent laid off or discharged Savoy because of her
activities on behalf of the Union . I shall therefore recom-
mend the dismissal of those portions of the complaint that
allege that Respondent laid off or discharged Savoy in vio-
lation of Section 8(a)(3) of the Act
2. Respondent's conduct prior to the settlement
agreement
On January 8 and 9, 1975, all the parties entered into an
informal settlement agreement which provided that Re-
spondent would not threaten employees with discharge or
other reprisals because of their union activity and would
not in any like or related manner interfere with Section 7
rights. The settlement agreement provided that appropriate
notices were to be posted . The settlement agreement fur-
ther provided that. "Contingent upon compliance with the
terms and provisions hereof , no further action shall be tak-
en in the above case." The General Counsel contends that
the settlement agreement was properly set aside because
Respondent violated the terms of that agreement by un-
lawfully discharging Savoy. Except for matters related to
the discharge of Savoy, the complaint does not allege nor
does the General Counsel contend that Respondent com-
INDIO COMMUNITY HOSPITAL 137
nutted any postsettlement violations of the Act or other-
wise violated that agreement.
Respondent's presettlement conduct was fully litigated
and I have considered that conduct as background in eval-
uating Respondent's motive or object in discharging Savoy.
As the Board held in Northern California District Council of
Hodcarriers and Common Laborers of America, AFL-CIO
(Joseph's Landscaping Service), 154 NLRB 1384 (1965),
enfd. 389 F.2d 721 (C.A. 9, 1968), presettlement conduct
may be used as background evidence to establish the move
or object of a Respondent's postsettlement activities.14
Respondent's presettlement conduct was of such a nature
as to establish that Respondent was extremely hostile to-
ward the union. That evidence of animus was fully consid-
ered in evaluating whether or not Savoy's termination was
casually related to her union activity. However, for the rea-
sons set forth above I have found that Savoy was not laid
off because of her union activity and that the layoff did not
violate the Act. The General Counsel has not established
by a preponderance of the credible evidence that Respon-
dent engaged in any postsettlement violations of the Act or
any breach of the settlement agreement.
In Henry I Siegel Co., Inc., 143 NLRB 386, enfd. 328
F.2d 25 (C.A. 2, 1964), the Board held: "The Board will
honor a settlement agreement and will not set it aside un-
less there is a breach of the agreement or a subsequent
independent violation of the Act by the parties to the
agreement ." In United Dairy Co, 146 NLRB 187 (1964),
the Board reinstated a settlement agreement and dismissed
a complaint after referring to the Board's general rule: "not
to go behind a settlement agreement unless the Respondent
has failed to comply with it or has since engaged in inde-
pendent unfair labor practices."
14 See also Cloverleaf Cold Storage Co, 160 NLRB 1484 (1966)
In sum, I find that the General Counsel has not estab-
lished by a preponderance of the credible evidence that
Respondent has failed to comply with the settlement agree-
ment or that Respondent has since engaged in independent
unfair labor practices. I shall therefore recommend that the
settlement agreement approved on January 9, 1975, be re-
instated and the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act
3. Respondent did not violate Section 8(a)(3) and (1) of
the Act by laying off or discharging Savoy.
4. The parties hereto entered into a settlement agree-
ment which was approved on January 9, 1975, and Re-
spondent has not failed to comply with it and has not en-
gaged in any postsettlement unfair labor practices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 15
The settlement agreement approved on January 9, 1975,
is reinstated and the complaint is dismissed in its entirety.
15 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions and recommended Order herein shall, as provided in Sec
10248 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions and Order , and all objections thereto shall be
deemed waived for all purposes