Kaiser Foundation Hospitals

National Labor Relations Board - Board Decisions

Mar 1, 1977

228 N.L.R.B. 468 (N.L.R.B. 1977)

468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kaiser Foundation Hospitals ;The Permanente Medical
Group; and Kaiser Foundation Health Plan and
Alsam G. Small
DECISION
STATEMENT OF THE CASE
Hospital and Institutional Workers Union , Local 250
and Alsam G. Small. Cases 20-CA-10516 and 20-
CB-3483
March 1, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On November 30, 1976, Administrative Law Judge
William J. Pannier III issued the attached Decision in
this proceeding. Thereafter, Respondent Union filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent Union, Hospital
and Institutional Workers Union, Local 250, its
officers, agents, and representatives, shall take the
action set forth in the said recommended Order.
i The Respondent 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 However,
we hereby correct the following factual errors which do not , in our opinion,
affect the correctness of the Administrative Law Judge's conclusion that
Respondent Union has failed to rebut the General Counsel 's showing that
before the 1974-75 changes the parties ' contracts excluded therapists who
were not members of Respondent Union from the bargaining unit for which
the Union was recognized : Contrary to an implication of the Administrative
Law Judge regarding mileage benefits enjoyed by therapists , the record
reveals that some other employees receive such benefits when they use their
own automobiles to travel for the Respondent Employers. Also, with regard
to the provision of the Respondents' agreement concerning notification of
the Respondent Union when a job vacancy occurs within the bargaining
unit, there is no evidence , as the Administrative Law Judge assumes, that the
Union maintains a list of available employees in classifications other than
therapist.
228 NLRB No. 57
WILLIAM J . PANNIER III , Administrative Law Judge: This
matter was heard by me in San Francisco , California, on
May 6 and June 1 through 4 and June 11 , 1976. On January
30, 1976, the Regional Director for Region 20 of the
National Labor Relations Board issued an order consoli-
dating cases, consolidated complaint , and notice of hearing
based upon unfair labor practice charges filed in Case 20-
CB-3483 on May 1, 1975, and served on May 5, 1975,
alleging violations of Section 8(b)(1)(A) and (2) of the
National Labor Relations Act, as amended, 29 U.S .C. Sec.
151, et seq., herein called the Act , and filed in Case 20-CA-
10516 on August 12, 1975, and served on August 13, 1975,
alleging violations of Section 8(a)(1), (2), and (3) of the
Act.'
All parties have been afforded full opportunity to appear,
to introduce evidence , to examine and cross-examine
witnesses , and to file briefs . Based upon the entire record,
upon the briefs filed on behalf of each of the parties, and
upon my observation of the demeanor of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
At all times material , Kaiser Foundation Hospitals, The
Permanente Medical Group , and Kaiser Foundation
Health Plan , herein called Respondent Employers, have
been corporations and are joint employers engaged in
providing prepaid health care services through the opera-
tion of acute care hospitals, outpatient clinics , pharmacies,
optical laboratories , and other facilities , including medical
centers located at Sacramento , Hayward , Oakland, Red-
wood City, Richmond , San Francisco, San Rafael, Santa
Clara , South San Francisco, Vallejo, and Walnut Creek,
California . During the past calendar year, in the course and
conduct of these operations , Respondent Employers de-
rived gross revenues in excess of $250,000 and , moreover,
purchased and received materials and supplies valued in
excess of $50,000 which were shipped directly to Respon-
1 The charge in Case 20-CA-10516 also alleged a violation of Sec. 8(a)(5)
of the Act, but no violation of that section of the Act has been alleged in the
complaint nor urged by the General Counsel.
KAISER FOUNDATION HOSPITALS, ET AL. 469
dent Employers ' medical centers from suppliers located
outside the State of California.
Therefore, I find that Respondent Employers are en-
gaged in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Hospital and Institutional Workers
Union, Local 250, herein called Respondent Union, has
been a labor organization within the meaning of Section
2(5) of the Act.
III. ISSUES
1. Whether all employees in the classifications physical
therapist, speech therapist, and occupational therapist have
been historically included in the bargaining unit for which
Respondent Employers have recognized Respondent
Union as the bargaining representative or, alternatively,
whether only those therapists who were members of
Respondent Union have been historically included in that
unit, with the result that Respondents violated the Act in
December 1974 by reaching agreement to include all
therapists in the unit and by thereafter executing a contract
which imposed union-security requirements on all thera-
pists in the three classifications.
2. Whether employees classified as physical therapist,
speech therapist, and occupational therapist are profession-
al employees within the meaning of Section 2(12) of the Act
and, if so, and if the effect of the December 1974 agreement
was to add therapists who had not been represented by
Respondent Union to the bargaining unit, whether Respon-
dents independently violated the Act by not affording those
therapists an opportunity to determine whether they
desired to be included in a bargaining unit embracing
nonprofessional employees.
3. Whether a finding of a violation, otherwise warrant-
ed, is barred against Respondent Employers under Section
10(b) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Whether Therapists Were Added to the Unit in
December 1974
1. Contentions of the parties
Respondents have maintained a collective-bargaining
relationship for over 20 years. In December 1974, they
reached agreement on the terms of their latest contract,
paragraph 4 of which provides that all employees covered
by the agreement must become and remain members of
Respondent Union within 31 days after execution of the
agreement or the date of hire, depending, essentially, upon
whether the employee was employed by Respondent
Employers before or after execution of the agreement. In
addition, paragraph 6 of that agreement states:
2 In addition to the aforementioned three classifications , the physiothera-
py or therapy department has included, over the years, employees classified
in several other classifications such as therapy aides, therapy technicians,
Effective ninety (90) days after the ratification date of
this Agreement, employees in the classifications of
Physical Therapist, Speech Therapist and Occupational
Therapist must either satisfy the Union membership
requirements in accordance with paragraph 4 above or
in lieu of becoming and remaining a Union member pay
to the Union a monthly fee equivalent to the established
monthly dues of the Union.
At the time this agreement was reached, Respondent
Employers employed 65 therapists in the three classifica-
tions at the facilities covered by the agreement. The
General Counsel called 39 of these therapists, each of
whom testified that he or she had never joined Respondent
Union, had never designated or selected Respondent
Union as his or her representative, and had never desired
representation by Respondent Union.
Respondents, however, contend that, notwithstanding
the understanding of the individuals who were employed in
the three classifications in December 1974, therapists have
always been part of the bargaining unit since 1953 and have
been covered by the successive collective-bargaining agree-
ments negotiated between the parties since that year. Thus,
contend Respondents, the only change made by the
December 1974 agreement was to extend to the therapists
union-security obligations from which they had been
exempted under prior agreements, with their coverage
under the agreements remaining the same. In opposition,
the General Counsel asserts that Respondents' agreements,
prior to that of December 1974, were applicable to the three
therapist classifications only to the extent that individual
therapists became members of Respondent Union. Thus,
urges the General Counsel, it was not until the modification
of December 1974 that all therapists became subject to
representation by Respondent Union and to coverage
under its agreement with Respondent Employers. Conse-
quently, under the General Counsel's theory, the benefits
which nonmember therapists enjoyed prior to the most
recent agreement were not the product of representation by
Respondent Union, but rather arose from Respondent
Employers' decision to extend the same benefits to them as
had been negotiated for member therapists by Respondent
Union; it was "a gratuitous undertaking rather than one of
contractual obligation ...." J. F. Johnson Lumber Compa-
ny, 73 NLRB 320, 322, fn. 4 (1947).
2. The collective-bargaining agreements
In resolving this issue, initial resort must be made to the
agreements between the parties. In 1953, the initial agree-
ment covering technical employees was executed. Included
in the definition of "employees," as set forth in that
agreement, were "All employees in the . . . Physiotherapy
Department .... 112 Article III of the agreement was
labeled "Recognition and Union Security" and was subdi-
vided into five sections. Section 1 provided that Respon-
dent Employers recognized Respondent Union "as the
exclusive bargaining agency of the employees covered by
this Agreement." Section 2 provided for maintenance of
and receptionists . There is no dispute concerning the fact that employees in
these classifications have been represented by Respondent Union.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership by all employees "who have become members
of or have applied for membership" and for "all employees
hereafter hired within the classifications covered by this
Agreement." Section 3 required that all employees hired by
Respondent Employers become members within 31 days
following the beginning of their employment. Section 5
provided for replacement of employees who failed to fulfill
this obligation by others who were willing to comply.
Section 4 read as follows:
Exceptions - The provisions of Article III, Sections 1, 2
and 3, hereinabove, shall not apply to the following
classifications except as hereinafter stated: Physical
Therapists, Speech Therapists, and Occupational Ther-
apists shall not be required to become members of the
Union as a condition of employment; however, such
Therapists who have become or shall hereafter become
members of the Union shall be required to maintain
membership in the Union thereafter as a condition of
employment for the duration of the Agreement.
Subsequently, the parties negotiated a new agreement in
1954; the first master agreement embracing all of Respon-
dent Employers' northern California facilities. That agree-
ment , as well as the two which succeeded it, carried forth
the provisions of article III in the same form as they had
appeared in the 1953 contract with one exception - the
definition of the term "employee" was deleted, thereby
eliminating the reference to the physiotherapy department
which had appeared in the 1953 agreement.
The 1962 agreement contained a major modification of
article III. While section 1, "Recognition," read as it had in
prior contracts, section 2 combined the formerly separate
sections relating to membership in Respondent Union,
thereby creating a single section pertaining to "Union
Membership." Section 3, "Exceptions," was also changed
so that it read:
The provisions of Article III, Sections 1 and 2 hereina-
bove, shall not apply to the classifications of Physical
Therapists, Speech Therapists, and Occupational Ther-
apists; provided, however, that Section 1 of this Article
III shall be applicable to employees in these classifica-
tions who have become or shall hereafter become
members of the Union and with respect to such
employees they shall be required to maintain member-
ship in the Union thereafter.
This was the format of article III in all subsequent
agreements between the parties until the above-described
provisions were included in the December 1974 agreement.
Since execution of the 1974 agreement, Respondents have
notified the therapists that, if they fail to satisfy the
membership requirements or to pay a monthly fee equiva-
lent to established dues, their termination will be demanded
by Respondent Union.
Absent a finding of accretion, an existing bargaining unit
may not be expanded to include additional groups of
employees without affording the latter an opportunity to
express their preference for representation. See Sunset
House, 167 NLRB 870, 872-874 (1967), enfd. 415 F.2d 545
(C.A. 9, 1969). An accretion, however, cannot be found
where the parties intended to and have excluded those
employees from the unit during previous negotiations and
in prior collective -bargaining agreements . Amcar Division,
ACF Industries, Inc., 210 NLRB 605 (1974); The Horn &
Hardart Company, 173 NLRB 1077 , 1079 (1968). Therefore,
when employees who have been excluded from the historic
bargaining unit are added to that unit and are made subject
to the provisions of a union -security clause under circum-
stances where they have not been afforded a free choice in
the selection of their representative , the contracting em-
ployer violates Section 8(a)(1), (2), and (3) of the Act and
the contracting union violates Section 8(b)(l)(A) and (2) of
the Act. The Item Company, 113 NLRB 67,68 ( 1955).
In the instant case , Respondents assert that the three
therapist classifications were not added to the unit in
December 1974 because they have always been a part of the
historic bargaining unit . Conversely, the General Counsel
contends that , at best, only members of Respondent Union
have been historically included in the bargaining unit and,
consequently , that Respondents' December 1974 change in
the wording of article III operated to add nonmember
therapists to the unit at a time when a majority of them had
neither designated Respondent Union to act as their
representative nor had desired representation by Respon-
dent Union . To resolve this issue , the threshhold inquiry
must be directed to the scope of Respondents ' bargaining
unit as defined in its various agreements.
In making the determination as to whether Respondents'
contracts extended only to member therapists , the wording
of the recognition clause , while significant , is not disposi-
tive . An agreement appearing to cover all employees may,
in fact , be confined only to employees who are members of
the contracting bargaining representative . Cargo Packers,
Incorporated, 109 NLRB 1184 (1954); Solventol Chemical
Products, Inc., 113 NLRB 617 (1955 ); Paramount Press,
Inc., 187 NLRB 586 (1970). By contrast , a recognition
clause which appears to be confined to members may, in
fact, be found applicable to all employees in the affected
classifications . Post Houses, Inc., 173 NLRB 1320 (1968);
Hebron Brick Company, 135 NLRB 245, 246 (1962); Herff
Jones Company, 97 NLRB 1070 (1952). Where ambiguity
exists regarding the coverage of the unit in a collective-
bargaining agreement , resolution is made "by considering
the intent and practice of the contracting parties." Post
Houses, supra,' HerffJones, supra at 1072.
In the instant case it is clear that , at the very least, an
ambiguity did exist under the terms of article III, section 4,
as it appeared in the agreements prior to 1962 . Thus, the
broadly worded recognition clause in article III, section 1,
and the separate "Union Membership" requirements of
sections 2 and 3 were limited by an exception applicable
not merely to the latter two sections , but also to the
recognition section as well. However, the exception clause
is susceptible to an interpretation that article III, sections 1
through 3, were not applicable only to the extent that the
three therapist classifications "shall not be required to
become members of the Union as a condition of employ-
ment ." Under this interpretation , the reference to section 1
might be construed as no more than a poorly drafted effort
at completeness in an exception provision which, by its
KAISER FOUNDATION HOSPITALS, ET AL. 471
express terms , is designed only to exempt the therapists
from the requirement of membership in Respondent Union.
Yet, such an explanation falters when considering the
language of the exception provisions as set forth in the last
six agreements preceding the one in force at the time of the
hearing . For, in addition to renewing the preambular
exclusionary statement that section 1, inter alia, was not
applicable to physical therapists , speech therapists, and
occupational therapists, section 3 continues to state specifi-
cally that section 1 is "to be applicable to employees in
these classifications who have become or shall hereafter
become members of the Union ." Accordingly, in contrast
to the pre- 1962 agreements , the 1962 and succeeding
contracts combined both an exclusion from the unit with a
specific inclusion in the unit confined solely to therapists
who "become members of the Union ." The literal meaning
of the provision , therefore , excludes nonmember therapists
from the bargaining unit for which Respondent Employers
dealt with Respondent Union as the representative. See,
e.g., Rankin Equipment Co., 79 NLRB 1439 (1948); B. F.
Hirsch, Inc., 57 NLRB 59, 64 ( 1944).
However , it is undisputed that all therapists receive
identical benefits and wages , without regard to their
membership or nonmembership in Respondent Union,
and, further , that the substantive provisions of the succes-
sive agreements have not been confined to Respondent
Union's members by their terms . Such factors have led the
Board to construe recognition clauses , seemingly confined
to union members , as ambiguous and as warranting
examination of the intent and practice of the parties. Post
Houses, supra; Hebron Brick, supra; Herff Jones, supra.
Accordingly , it is to these factors which attention must now
be directed.
3. The intent of the contracting parties
In determining whether the successive agreements have
contemplated a bargaining unit covering all therapists,
without regard to their membership in Respondent Union,
it should be borne in mind that at no point have employees
classified as therapists voted for representation by Respon-
dent Union. Nor, so far as the record discloses, have the
therapists, at any point in time since 1953, designated
Respondent Union as their representative by any other
means. There is simply no showing of therapist assent to
representation by Respondent Union. Consequently, to
find that, notwithstanding the express provisions of article
III, all therapists have been included historically in the
bargaining unit, it must be shown that the parties contemp-
lated such a result during their negotiations.
However, despite the generalized assertions of Respon-
dents' witnesses that the parties intended their agreements
to cover nonmember therapists, no specific testimony was
elicited from any of them regarding specific conversations
to that effect during negotiations. In fact, only one witness
- Richard Liebes, Respondent Union's principal spokes-
man during the negotiations with Respondent Employers
- was presented who had participated in the initial
negotiations between the parties. Yet, when asked what
negotiations or discussions had taken place regarding the
exception provision in that agreement, Liebes replied, "I
just don't recall." Similarly, no testimony regarding specific
discussions or negotiations was adduced with respect to any
other agreement, including that negotiated in 1962 when
the significant change in the wording of the exception
provision was made. In this regard, Liebes was asked
specifically, during cross-examination, why Respondents
had seen fit to even mention section 1 in the exception
provision. However, he replied only that he recalled
"nothing specific" about the discussions of the matter.
Although other witnesses, who had participated in
negotiations subsequent to those which occurred in the
1950's, appeared for Respondents, like Liebes, none of
them testified to any specific discussions between Respon-
dents' representatives that would support their generalized
assertions that, notwithstanding the wording of the excep-
tion provision, it was intended that all therapists, member
and nonmember, would be embraced by the collective-
bargaining agreements which were executed. In these
circumstances, their generalized assertions amount to no
more than "choosing up sides" and are not sufficient to
support Respondents' defense that all therapists were
included in the historic bargaining unit.
Respondent Employers argue that the intent to include
all therapists in the unit was illustrated in 1953 when the
physiotherapy department was included in the definition of
"employee" set forth in the agreement negotiated that year.
However, neither the definition nor a specific reference to
the physiotherapy department was ever again mentioned in
subsequent contracts. Nor was any explanation advanced
for the omission of such a definition from the subsequent
contracts. Accordingly, Respondents cannot rely on the
wording of an agreement, two decades old, to establish that
their later agreements were intended to cover all therapists,
notwithstanding the fact that the wording on which they
rely had never been repeated and the further fact that more
proximate agreements all contain an exception clause
worded in a manner different from that which appeared in
the 1953 agreement.
Vice President for Employee Relations Edwin Bell
testified that, during the early to mid- 1950's in Southern
California, Respondent Employers had negotiated a similar
exception provision in an effort to compromise between the
somewhat conflicting goals of avoiding proliferation of
units through "umbrella coverage" while at the same time
not deterring therapist applicants:
It was our feeling at the time and our understanding at
the time that the temper of those people in those
classifications was such that they did not want to be in the
same contract with other employees or in union contracts
of any kind and therefore, we said, "Fine; we want the
umbrella kind of coverage in our bargaining unit" but
in order to satisfy our requirements to our membership,
we would not require them to become members of the
union. [Emphasis supplied.]
Of course, Bell had not been present during the negotia-
tions for the initial Northern California agreement, and the
Southern California one was not presented so that it could
be ascertained if its provisions were, in fact, similar to those
in the Northern California agreement between Respon-
dents. But, his testimony is more intriguing for the
admission, italicized above, that Respondents were fully
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aware not simply, as Respondents urge, that therapists did
not want to be members of Respondent Union (which
could be satisfied with a simple exemption from "union
membership" obligations). Rather, Bell's testimony de-
monstrates that the real concern which Respondent Em-
ployers were attempting to satisfy extended beyond mere
membership to the therapists' desire not to be represented
- period.
Viewed in this light, it would appear that Respondents
attempted to resolve a conflict between nonproliferation
and the desires of therapists to remain unrepresented. They
did so by extending the agreement to therapists, thereby
discouraging other labor organizations from attempting to
organize the therapists, but included a clause which then
removed all therapists from the unit, reinserting only those
who became members of Respondent Union, thereby
indicating their lack of opposition to representation by
Respondent Union in a unit with nonprofessional employ-
ees. Clearly, therefore, Bell's statement , at the very least,
fails to support Respondents' contention that the wording
of article III was not intended to restrict Respondent
Union's representation of therapists to those who were
members. Instead, his description of Respondent Employ-
ers' goals tends to fortify the General Counsel's argument
that the contracts have covered only those therapists who
were members of Respondent Union.
Respondents further argue that their intent to cover both
member and nonmember therapists is evidenced by the fact
that all therapists receive the same benefits and by the
further fact that those are the benefits set forth in the
contracts negotiated by Respondents. But this does not
resolve the matter, for the question is the basis upon which
those benefits are provided to the nonmember therapists.
Thus, if Respondent Employers have been extending
benefits to nonmember therapists for administrative conve-
nience, and not by virtue of Respondent Union's represen-
tation, then it is a gratuitous undertaking rather than one
of contractual obligation," Johnson Lumber, supra, in which
event, the nonmember therapists have not been represented
historically by Respondent Union. Two factors tend to
support the conclusion that this has been the fact, contrary
to the argument advanced in Respondent Employers' brief.
First, there is evidence that Respondent Employers have
been extending the benefits of its agreements with Respon-
dent Union to concededly unrepresented employees.
Northern California Labor Relations Representative Mari-
lyn Morrish conceded that Respondent Employers may
have chosen to so extend these benefits in this manner.
Even more pointed was the testimony of Payroll Supervisor
Judy Trischan: "We have a few people that follow the local
250 agreement, but are not considered local 250 employ-
ees." Consequently, representation by Respondent Union
does not define the scope of the employees to whom the
benefits negotiated will be extended at Respondent Em-
ployers' discretion.
Second, in an effort to support Respondents' position,
Bell explained that Respondent Employers would not
recognize a labor organization for only members in
classifications , since:
... we essentially have a program of people doing
generally the same kind of work or the same kind of
work at equal pay and we try to relate the salaries in one
location versus another, and that they are paid the same
sort of wages and same sort of conditions and that
would be, I think, unfair to change that program.
Yet, this is a two-edged sword. Were Respondent Employ-
ers to have a reason for recognizing a labor organization as
the representative of only members in a given employee
classification, such as it had under Bell's explanation of the
concern regarding therapists' desire for unrepresented
status, then its policy of parity in terms of employment
would operate in the other direction - extending to the
unrepresented employees in the classification the same
benefits as the represented ones received by virtue of
negotiations. The point, however, is not to ascertain and
compare the benefits which therapists do receive. It is,
instead, to ascertain the source of those benefits and from
that source to attempt to infer whether the contracting
parties intended to include all therapists in the bargaining
unit. Here, where Respondent Employers have a policy of
parity of benefits for similarly situated employees and
concededly do extend the benefits of their agreements with
Respondent Union to admittedly unrepresented employees,
it can hardly be said that intent to include all therapists in
the bargaining unit can be inferred from the fact that their
benefits are identical.
Finally, there is the matter of the role, if any, that
nonmember therapists played in the process of negotiating
contracts. So far as the record discloses, no therapist has
ever participated on Respondent Union's negotiating
committee during its 20-year history of bargaining with
Respondent Employers. See Paramount Press, Inc., 187
NLRB 586 (1970); cf. The Armstrong Rubber Company, 208
NLRB 513, 514 (1974). Nor have Respondents shown that
any therapists ever submitted proposals for Respondent
Union to advance during its negotiations with Respondent
Employers. While Liebes testified that therapists at the
South San Francisco facility had contributed to the 1974
negotiations, he conceded that these therapists had been
members of Respondent Union, thereby dispelling any
possibility of relying on this matter as a basis for inferring
intent to represent nonmember therapists.
Moreover, Liebes did not specify the nature of the
contribution which the South San Francisco therapists had
made to the 1974 negotiations. Significantly, a change in
California licensing regulations had led the parties to revise
the therapy classifications during the 1974 negotiations. In
an effort to obtain information on the change, Business
Representative Jeff Greendorfer had spoken to therapists at
Respondent Employers' San Francisco, Hayward, and
Vallejo locations. However, Greendorfer did not recite the
substance of these conversations and he identified only
Joan Mason, a member therapist at San Francisco, as one
of the therapists with whom he had spoken. As neither
Mason nor any other therapist was called by Respondents
to describe the conversations with Greendorfer, it is,
accordingly, unpossible to ascertain if these conversations
amounted to simply questioning nonunit employees (in the
case of therapists other than Mason) regarding their
conditions of employment or, alternatively, if the conversa-
tions rose to the status of a bargaining agent conferring
with employees whom the agent represented. Moreover, if
KAISER FOUNDATION HOSPITALS, ET AL. 473
these are the conversations to which Liebes was referring,
then his testimony, like that of Greendorfer, will not
support a finding that the continuing intent of the parties to
include nonmember therapists in the historical bargaining
unit is shown by the substantive contributions which he
asserted had been made by therapists to negotiations for the
1974 agreement. Finally, even if physical therapists, as a
class, were discussed, this would still not establish historical
representation since it was the 1974 negotiations which led
to the assertedly unlawful inclusion of all therapists in the
unit.
Three of Respondent Union's officials - San Francisco
Area Regional Supervisor Robert J. Cooper, Sacramento
Area Business Representative Bradley J. Wilcox, and
Steward Joseph Moore, a therapist at Respondent Employ-
ers' San Francisco facility - testified to their communica-
tions with employees during negotiations for collective-
bargaining agreements. Collectively, their testimony por-
trayed a continuous interchange between Respondent
Union and all employees in the therapy department,
including physical therapists, during the negotiating pro-
cess . Thus, Moore testified that, when he had participated
on behalf of Respondent Union in the negotiations for the
1970 agreement, he had solicited suggestions from all
employees in the therapy department, had conducted
informal meetings during negotiations to advise all employ-
ees, including therapists, of the progress of the negotiations
and, following all negotiations, had distributed copies of
newly negotiated agreements to all therapy department
employees, including physical therapists. Similarly, Cooper
testified that during the period he had served as steward at
the Vallejo facility, from 1966 or 1967 to late 1969 or early
1970, he had always made stacks of agreements available
on the therapy department coffee table and, additionally,
had informed therapists during negotiations of what had
been transpiring, holding meetings following negotiations
which therapists had attended. Wilcox, who had served as
steward at Respondent Employers' Sacramento facility
from approximately 1972 until 1974, contended that he had
conducted departmental proposal meetings prior to negoti-
ations and claimed to have spoken to all therapists
regarding negotiations. He further asserted that he had left
sufficient copies of notices and other material with the
receptionist for distribution to all therapy department
employees, including therapists.
Yet, this portrait of continuous interchange between
Respondent Union and all therapists concerning the
negotiating process is flawed in several respects. Thus,
collectively, these three witnesses identified no more than
one therapist with whom such communications had taken
place. And, the therapist who was identified was Joan
Mason, a member of Respondent Union and, accordingly,
a conceded member of the bargaining unit for which
Respondent Union was the representative. By contrast, the
3 Although Geraldine Williams, a member therapist at Sacramento
during the period that Wilcox served as steward there, did testify that the
receptionist had posted and distributed Respondent Union 's notices and that
she had attended Respondent Union's meetings , she made no reference to
Wilcox and she did not corroborate his descriptions either of prenegotiation
meetings or of conversations with therapists concerning negotiations. The
only other therapist called by Respondents was Kit Soo However, as she
worked at Respondent Employers' Oakland location, she was in no position
General Counsel called six therapists from the San Francis-
co facility, one from Vallejo, and one from Sacramento, all
of whose tenure overlapped that of the periods when
Moore, Cooper, and Wilcox, respectively, had been serving
as stewards at those locations. Not one of these eight
therapists corroborated the three officials of Respondent
Union concerning the purportedly continuous interchange
of information during negotiations. For example, though
Niles Carlson, who had worked at Vallejo since 1947,
conceded that he had participated in several discussions
with Cooper regarding Respondent Union, he testified that
he could recall none that were of any import and he denied
categorically that he had ever been contacted by Respon-
dent Union concerning negotiations prior to the communi-
cations arising from the agreement at issue in the instant
case . To like effect was the testimony of Carol Waterbury,
who had been working at Respondent Employers' Sacra-
mento facility for 4 years prior to the hearing and,
consequently, whose tenure overlapped at least a portion of
that of Wilcox as a Sacramento steward.
All of these witnesses testified during the General
Counsel's case-in-chief and their testimony, with the
exception of that by Carlson relating to the extent of his
discussions with Cooper, was clearly known to Respon-
dents by the time they commenced their cases-in-chief. Yet,
not only did the three officials of Respondent Union not
identify any of the therapists, save Mason, with whom they
had assertedly communicated regarding negotiations, but
not one employee - nonmember therapist, member
therapist or therapy department employee other than
therapist - was called to corroborate the assertions of
these three witnesses . "The nonproduction of evidence that
would naturally have been produced by an honest and
therefore fearless claimant permits the inference that its
tenor is unfavorable to the party's cause." 2 Wigmore,
Evidence 285, p. 162 (3d ed. 1940). See also International
Association of Bridge, Structural and Ornamental Ironwork-
ers, Local 600 (Bay City Erection Company, Inc.), 134 NLRB
301, 306, fn. 11(1961) 3
The nonproduction of corroborating testimony for these
three witnesses was particularly significant in light of their
obvious attempt while testifying to buttress both their own
reliability as witnesses and Respondents' defense. For
example, in an effort to secure a fmding that occupational
therapists had been included historically in the bargaining
unit, Moore testified, initially, that he had negotiated on
behalf of this classification of employee. Then, apparently
alerted by the tenor of the questioning, he waffled when
asked if he had negotiated wage rates for occupational
therapists, first replying "I understand that whatever
benefits that we received on that - for that time, that all
the therapists received it also," and then answering "I can't
say specifically." Ultimately shown that no wage rates for
occupational therapists appeared in the 1970 contract,
to corroborate Respondent Union's officials concerning the asserted com-
munications at San Francisco, Vallejo, and Sacramento. Significantly, while
Soo testified that she had received material distributed by her shop steward
and had read notices posted by Respondent Union, she made no claim that
her shop steward had distributed similar material to nonmember therapists
and she conceded that the notices which she had read had been posted at the
Oakland hospital, while no such notices had been posted at the Piedmont
building where the therapy department for Oakland is located.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore retreated completely when asked again if he had
negotiated wage rates for occupational therapists in 1970:
"If they weren't in the department, no. I can't say that I did.
It's been a long time ago. I can't say I did or I didn't."
To like effect was the situation with Cooper, who testified
that at Vallejo "we had aides in the department and I also
handled grievances for those people." Yet, Respondent
Employers' coordinator of patient services, Margaret
Knott, testified that, aside from a receptionist who has been
classified as an aide, there have been no aides employed at
Vallejo because the duties of aides, assistants, and techni-
cians have been performed by students from the graduate
in-service training program conducted at that facility.
Cooper also claimed to have processed grievances arising
from yellow slips of paper which Knott purportedly used as
disciplinary notices: "whenever you got a white piece of
paper, it was okay; but if you got a yellow sheet of paper,
you were in trouble." Yet, Knott denied ever using yellow
slips of paper exclusively for disciplinary purposes and,
instead, testified that it has been her practice to transmit
instructions concerning patient treatment on slips of paper,
some of which have been yellow in color. Indeed, in an
apparent effort to bolster his own credibility by elevating
his employee status while employed at Vallejo, Cooper
asserted that he had been an assistant physical therapist
and only after Knott had testified that he had been
classified as an attendant or pusher did he resume the stand
and, grudgingly, concede that fact .4
I do not credit Moore, Cooper, and Wilcox regarding
their asserted communications with therapists during
negotiations. Rather, I find that Respondents have failed to
produce evidence sufficient to establish that it was their
intent to include nonmember therapists in the bargaining
unit represented by Respondent Union. There is no
evidence showing discussions during negotiations to that
effect, nor is there evidence of a specific agreement that the
bargaining unit would encompass nonmember, as well as
member, therapists. The evidence, to the contrary, does
show that Respondent Employers have been aware for over
20 years that the therapists did not desire representation
and, additionally, did not desire representation by the same
labor organization representing nonprofessional employ-
ees. Any indicia of intent to include nonmember therapists
that could be derived from uniformity of benefits provided
all therapists is dispelled by evidence which tends to show
that Respondent Employers follow a policy of parity of
benefits and by further evidence that benefits negotiated
with Respondent Union have been extended by Respon-
dent Employers to other employees who are concededly not
represented by Respondent Union. There is no credible
evidence sufficient to infer an intent to include nonmember
therapists by virtue of the manner in which the negotiating
process was carried out. Therefore, I find that the factor of
intent is not sufficient to dispell the plain wording of the
exception clause which has appeared in Respondents'
successive collective-bargaining agreements prior to the
agreement challenged in the complaint.
J While such a misstatement might appear to have been mere inadver-
tence , it should be kept in mind that Cooper occupies a significant position
with Respondent Union and, presumably, would well appreciate the
t
4. The practice of the contracting parties
In focusing on the practice of the contracting parties,
inquiry is directed to ascertaining whether the day-to-day
operations establish that the terms and conditions of the
collective-bargaining agreements were applied to all thera-
pists, without regard to their lack of membership in
Respondent Union. Several areas merit consideration.
First, while there have always been at least some
therapists who have been members of Respondent Union,
no evidence was presented to show that member therapists
represented a significant percentage of the total comple-
ment of therapists. Wilcox claimed that Respondent
Union's membership records had been stolen by the
computer firm which had maintained them. He did not,
however, explain what purpose could be served by such a
theft, from the computer firm's point of view, nor was any
corroborative evidence presented concerning the purported
theft. Moreover, no explanation was advanced as to why
Respondent Employers did not produce this information
since, based upon Trischan's testimony regarding the
division of therapists, for payroll purposes, into those who
do and those who do not pay dues, seemingly such
information would have been available. Under these
circumstances, and particularly in light of Wilcox's general
attitude of attempting to fortify Respondents' defense, it
appears to be a warranted inference that Respondent
Union never represented a significant number of therapists.
This conclusion is buttressed by the fact that only two
therapists who appeared were members of Respondent
Union prior to execution of the 1974 agreement and only
one other therapist (Mason) was specifically identified as
having been a member of Respondent Union prior to that
time. By contrast, Soo acknowledged that she had been the
only member therapist at Oakland, Wilcox conceded that
there had never been more than two member therapists at
Sacramento in December 1974, Moore testified that only
Mason had been a member therapist at the San Francisco
facility, and the General Counsel presented 36 therapists
who testified that they had never designated nor selected
Respondent Union to represent them. Therefore, I con-
clude that at no point have any significant number of
therapists been members of Respondent Union. This, of
course, is a valid factor to consider in appraising whether
Respondent Union had been serving as the representative
of all therapists prior to December 1974. Emanuel Birnbaum
and John W. Jones d/b/a Silver Lake Nursing Home, 178
NLRB 478 (1969); Paramount Press, supra.
Second, Respondents' record of enforcement of the
maintenance of membership portion of article III is
relevant for, so far as the record discloses, there has never
been a time when Respondent Union even sought to
enforce its right to insist upon compliance with that
provision where there has been a termination of member-
ship by a therapist. Yet, such situations have arisen. For
example, both Albert Brady, who had commenced working
for Respondent Employers in 1968 as an LVN, and Benda
Braathun, who had commenced working in 1972 as a
importance of job classifications, particularly where they are listed in
Respondents' agreement.
KAISER FOUNDATION HOSPITALS, ET AL.
physical therapist assistant, resigned from Respondent
Union upon being reclassified as physical therapists. There
is no evidence that either of Respondents ever interposed
the maintenance-of-membership provision as an objection
to their resignations. Similarly, Joanne Keaney had joined
Respondent Union in 1968, when working as a receptionist
for Respondent Employers. Following her termination, she
was rehired by Respondent Employers in 1973 as a physical
therapist and dues were deducted from her first few
paychecks. Yet, when she complained to her supervisor
about the deductions, they ceased and she paid no dues
thereafter to Respondent Union. As with Brady and
Braathun, neither Respondent protested Keaney's failure to
continue paying dues or maintaining her membership and
no explanation was advanced for the absence of a protest.
While the provision itself does require that Respondent
Union refer a "competent employee" whenever termination
of an employee is sought for failing to comply with the
maintenance-of-membership provision, Respondents have
not shown that at the time of these three resignations
Respondent Union had been unable to obtain a "compe-
tent" replacement or, at the very least, that its inability to
furnish such a replacement formed the basis for its failure
to invoke that provision of the agreement against the
resigning members. In these circumstances, the record
shows only that Respondents' contracts have imposed a
maintenance-of-membership requirement for therapists,
that at least three therapists did resign their membership,
and that Respondents took no action against them for
resigning , notwithstanding the presence of contractual
machinery permitting their replacement. Clearly, this
evidences a failure to apply the collective-bargaining
agreements to therapists. See Silver Lake Nursing Home,
supra.
Third, in a somewhat related vein to the immediately
foregoing factor, there is evidence that, on at least one
occasion, a presumably "competent employee" was avail-
able to Respondent Union, but no action was taken to
preserve his availability. Respondent Union's business
representative for San Francisco County and the Northern
Peninsula, Jeff Greendorfer, testified that approximately 2
years prior to the hearing - shortly before Braathun, a San
Francisco therapist, ceased maintaining her membership -
a therapist, he was not sure if occupational or physical,
sought Respondent Union's aid in obtaining employment.
Without, so far as the record shows, recording the thera-
pist's name and address for future reference, Greendorfer
simply recommended that the therapist contact personnel
in Respondent Employers' San Francisco and South San
Francisco facilities for employment. In doing so, Greendor-
fer acknowledged that his action had been "more in the
nature of explaining to someone how to go about being
employed as opposed to referral to fill any sort of vacancy."
This action by Greendorfer shows that Respondent Union
was not even making an effort to compile a list of
"competent" personnel to enforce its maintenance -of-mem-
bership provision. Moreover, like the situations in which
the Board has found that a labor organization has not been
representing employees where, in part, that labor organiza-
tion ceases processing grievances and merely refers the
grievants to their employers for direct resolution of the
475
grievances , International Engineering Works, Inc., 49 NLRB
1129, 1131 (1943), here Respondent Union made no effort
to serve as a potential representative of the therapist who
spoke with Greendorfer . Instead , Greendorfer merely
recommended that he handle his problem directly with
Respondent Employers and see if the latter would agree to
employ him.
Fourth , three witnesses testified to their experiences when
they had been newly hired by Respondent Employers. This
evidence was adduced in an effort by Respondents to
demonstrate that newly hired therapists were advised that
they were represented by Respondent Union , but were not
required to become members . An examination of the
testimony shows that, while the latter was clearly shown,
the former was not . Thus , Kit Soo testified that Supervisor
Clint Maashoff had told her that therapists were represent-
ed by Respondent Union but that she was not required to
become a member , as her bargaining would be done for her
in any event . Yet, Soo also testified that, upon being told
that therapists were represented by Respondent Union, "I
asked for the book, and I read that ." Soo was hired at a
time when the exception provision read as it was negotiated
in 1962 and , as found above, it clearly does not state that all
therapists are represented by Respondent Union . Conse-
quently , if, as Soo testified, she was told no more than what
she read in the contract shown her by Maashoff, then she
quite clearly was not told what she testified he had said to
her. Maashoff was not produced as a witness nor was the
failure to do so explained . Consequently , his testimony is
not available to compare with that of Soo as to what he had
said to her . No other therapist from Oakland was called by
Respondents and, thus, Soo's testimony cannot be com-
pared against that of any other Oakland employee to
ascertain if what had been said to them conformed to what
she claimed had been said to her. Further, Soo herself
appeared strongly sympathetic to Respondent Union and,
accordingly , unlikely to say anything contrary to its
interests . In these circumstances , it is not possible to find
that she was told other than what the collective -bargaining
agreement stated regarding the representation status of
therapists ; her testimony will simply not support a finding
that she had been told that all therapists were represented
by Respondent Union.
Geraldine Williams , the second witness to conversations
regarding Respondent Union when newly hired, stated
merely: "Well, when I come to work in the facility - went
to work in the facility, why, I knew that it was a union
house ." Since she did not say what she meant by a "union
house," nor that therapists were encompassed within that
description, and as she did not testify to any specific
remarks made by Respondent Employers' officials , it is not
possible to rely on her testimony to establish that newly
hired therapists had been told that they were represented by
Respondent Union. Peter Edgelow testified that Margaret
Knott had referred to the collective-bargaining agreement
to describe the benefits that he would receive and had
explained that therapists did not have to join Respondent
Union . Of course , the fact that the contract was used to
describe benefits does not resolve the issue presented in the
instant case since the issue, as pointed out above , is whether
the reason for receiving those benefits was because of
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union 's representation of all therapists or
because Respondent Employers have independently deter-
mined to extend to nonmember therapists the benefits
negotiated for member therapists . Moreover , it soon
became clear that Edgelow was not certain what had been
said to him by Knott : "I really don't remember whether she
said [the therapists were] non -union or whether she said
that I had the option of joining the Union or not." Edgelow
acknowledged that , in describing the membership option,
Knott had used the words of the contract , thereby leaving
the situation in no clearer a state than had Soo . Significant-
ly, while Knott was manifestly available as a witness,
Respondents chose not to attempt to question her on what
she had said to newly hired therapists.
In these circumstances , I fmd that the testimony of these
three witnesses - Soo, Williams , and Edgelow - concern-
ing what had been said to them when they had been hired
does not establish that newly hired therapists were told that
they were represented by Respondent Union. Accordingly,
this factor does not support Respondents' contention that,
notwithstanding the wording of the exception provision of
their agreements, all therapists had been treated as being
represented by Respondent Union prior to December 1974.
Fifth , related to the immediately preceding factor was the
testimony of several witnesses concerning what they had
told newly hired therapists . Initially, Edgelow testified that,
after becoming a supervisor, he had told newly hired
therapists that they were represented by Respondent
Union, but did not have to become members. However,
when this somewhat generalized description was probed
during cross-examination through questions pertaining to
what had been said to therapist Richard Bus , Edgelow
testified that he had explained the representative status of
therapists to Bus by showing him the agreement:
I had a standard orientation practice that I went
through, which included explaining to the therapists the
salary, the process of advancement, the vacation time,
sick leave; these sorts of things. And I used the Local
250 contract as my source material. And when it came
to discussing the Union itself, per se, rather than these
specific facts, I showed him where in the contract the
Union - there was a closed shop for everyone in the
department except for physical therapists, and the
physical therapist had the option of joining the Union
or not.
Of course, the then-existing contract , which, when Bus was
hired, contained the exception provision from the 1962
agreement , hardly made it clear that all therapists were
represented by Respondent Union. Moreover, although
Edgelow's above-quoted testimony arose in the context of
what he had said to Bus, his reference to "a standard
orientation practice" appears to mean that, notwithstand-
ing his description of what he had said during direct
examination , his specific description during cross-examina-
tion is a more accurate recital of what he had told the newly
hired therapists.
Edgelow appeared uncertain of the distinction between
representation on a members-only basis and representation
of all employees without regard to membership, as illus-
trated by his testimony concerning what had been said to
him during his own orientation. No therapists from
Hayward corroborated the generalized assertion of his
direct examination that he had told them that all therapists
were represented by Respondent Union . His own, more
detailed, description of what had transpired during these
orientation sessions makes clear that he told newly hired
therapists no more than what was set forth in the agree-
ments between Respondents. Accordingly, I fmd that
Edgelow's testimony in this respect is not sufficient to
support Respondents' contention that newly hired thera-
pists were told that they were represented by Respondent
Union. Nor will the testimony of San Rafael Personnel
Supervisor Haleen Armijo, who testified to having told
newly hired therapists that they would receive wage
increases every November pursuant to the contract, but
who specifically denied having discussed union member-
ship with such therapists prior to 1975. Consequently,
Armijo's testimony is as consistent with the General
Counsel's theory that Respondent Employer was unilateral-
ly extending the terms of its agreements to nonmember
therapists as it is with Respondents ' theory that the benefits
for nonmember therapists stemmed from Respondent
Union's representation of them.
Both Sacramento Director of Personnel Luann Kam-
prath and Sacramento Senior Personnel Clerk Jeanne Cole
laid claim to having conducted the orientation of physical
therapist Carol Waterbury in 1972. Kamprath described
having told Waterbury and other newly hired Sacramento
therapists that there was a collective -bargaining agreement
which was followed in providing benefits for therapists.
However, aside from having mentioned the option of
joining or not joining Respondent Union, Kamprath
refrained from describing exactly what she had told
Waterbury and other therapists about their status regarding
Respondent Union's representation . While Cole testified
that she had told Waterbury "that her benefits fell under
the union contract ," she admitted that she could not recall
what had been said with regard to joining Respondent
Union. In fact, Waterbury did agree that she had been told
that her benefits were set forth in Respondents' collective-
bargaining agreement. However, Waterbury further testi-
fied that, based upon what Respondent Employers' officials
had told her, her "understanding was that the reason that
we got the benefits that we got from the administration and
not from the Local 250 contract." This, of course, is
precisely the point of the General Counsel' s argument.
Consequently, in view of this testimony by Waterbury and
in light of the indeterminate nature of that given by
Kamprath and Cole, I find that the testimony of these two
officials of Respondent Employers is not sufficient to
support Respondents' contention that newly hired thera-
pists had been advised that they were represented by
Respondent Union and were included in the bargaining
unit.
The final witness who testified concerning statements
made to newly hired therapists was Cooper, who claimed,
without corroboration, that Knott had delegated the task of
conducting orientations to him. Yet, when called upon
during direct examination to recite what he had said during
orientations, Cooper testified only that "I told them - you
know, that we had a contract there under Local 250, that
KAISER FOUNDATION HOSPITALS, ET AL.
they had an opportunity to attend meetings , to belong if
they desired to do so ." Quite clearly, this is at best an
invitation to join Respondent Union . It hardly constitutes a
statement of representation . Though Cooper ultimately
agreed that he had told newly hired therapists that, whether
or not they were members, they were entitled to the
contract benefits, this was in response to a question put to
him on cross-examination and I am convinced that his
answer was predicated less on his own recollection of events
as they actually had occurred and more on his desire to
shore up Respondents ' case to the greatest degree possible.
In any event, of itself, there is nothing in such a statement
that would alert the new therapists that the benefits were
the result of representation by Respondent Union as
opposed to benefits which Respondent Employers had
simply adopted for extension to unrepresented employees.
In sum, Respondents presented a series of witnesses to
support their contention that newly hired therapists had
been told that they were represented by Respondent Union
and were included in the contractual bargaining unit.
Careful consideration of the testimony of the witnesses, as
well as their demeanor , discloses that , discounting general-
ized statements , their testimony concerning what had been
said to the new therapists simply does not support that
contention . Rather, it is virtually neutral , being as suscepti-
ble of supporting the General Counsel's theory as that
advanced by Respondents.
The sixth area which merits consideration in appraising
the contracting parties' practice involves the relationship of
benefits provided by the agreements to those received by
the therapists . As noted above , it is generally correct that,
without regard to source , all therapists received the benefits
set forth in those agreements. However , several significant
exceptions do exist. For example , not one of the past
agreements has provided wage rates for occupational or
speech therapists, even though the exceptions provisions
have mentioned these two classes of therapists, as well as
the physical therapists . To explain this omission, Respon-
dents argue that it resulted from the small number of
employees populating each of the two classifications and
that , as is the case with other sparsely populated classifica-
tions, Respondents normally negotiate their wage rates on
an ad hoc basis following agreement on the terms of the
basic collective-bargaining agreement. The problem with
this explanation, however , is that it lacks supporting
evidence . Though a letter expressing agreement on the wage
rates for occupational therapists was sent by Morrish to
Liebes in 1975, following agreement on the contract which
the General Counsel challenges in the instant ease , there is
no evidence of a similar written agreement for either
occupational or speech therapists for any previous contract.
Respondent Employers did search their files in an effort to
locate a similar agreement or letter but were unsuccessful.
Apparently, Respondent Union saw no need to make a
similar effort . In any event, the best that Respondent
Employers' search of the files produced was a series of wage
rates for occupational therapists which, the parties stipulat-
ed, could not be shown to have been the product of
negotiations with Respondent Union nor , in fact, even
communicated to the asserted historic representative of
these therapists.
477
Another example of benefits received by therapists which
were not included in the parties ' agreements was mileage
payments for trips to patients ' homes. So far as the record
discloses, the therapists are the only employees who
actually have need of such a benefit. Yet, while therapists
have historically received mileage payments, there has
concededly never been any provision for them in any
collective-bargaining agreement until the one at issue in the
instant case . There was really no explanation as to why it
suddenly had become necessary to include a provision for
such payments in the 1974 agreement and the fact that it
was inserted tends to reinforce the General Counsel's
argument that it was not until that agreement that the
nonmember therapists , the preponderant majority of em-
ployees classified as therapists , were included in the
contractual unit , thereby necessitating the inclusion of a
benefit which appears to have been unique as to them.
Tuition and paid educational leave provided another
illustration of a benefit provided to the therapists which was
not included in the parties' contracts and, again , there is no
evidence that any other employee classification enjoyed
such a benefit. Thus, while Santa Clara physical therapist
Edna Wesenburg described a form which she had com-
pleted to claim tuition and salary for educational leave,
Respondents did not produce the form, an explanation for
the source of this benefit , nor evidence showing that it was a
benefit received by employees in classifications concededly
represented by Respondent Union. Consequently, the
record does contain evidence that therapists received
benefits not specified in the successive collective-bargaining
agreements and it does not contain any evidence that those
benefits, particularly the wage rates of occupational and
speech therapists, resulted from Respondent Union's repre-
sentation.
Seventh, there is evidence that some provisions of the
agreements have not been applied to therapists. Most
illustrative of this factor is the maintenance -of-membership
provision , discussed above. Yet another was the contractual
provision for notification to Respondent Union whenever
vacancies arose in classifications covered by the unit. To
implement this provision , Respondents use a job requisi-
tion . However, not one such requisition for a therapist of
any type was produced during the hearing. While Green-
dorfer claimed that they existed and that he could bring
them to the hearing, neither he nor any other official of
either Respondent did so . Moreover, there is no evidence
that any therapist applicant was ever referred to Respon-
dent Employers pursuant to a job requisition. While Wilcox
testified that Respondent Employers are free to seek
employees from sources other than Respondent Union and
that Respondent Employers had filled other licensed
positions, such as pharmacist, from such sources, he
conceded that he had referred pharmacists on some
occasions to Respondent Employers and there is no
evidence of any classification, concededly represented by
Respondent Union, for which the latter has never referred
an applicant pursuant to a job requisition. Indeed, to
implement this provision of the agreements , Respondent
Union undoubtedly maintains a list of available employees
who can be referred whenever a job requisition is received
for their classification. Yet, when the therapist-applicant
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approached Greendorfer, as described above, seeking
employment , there is no evidence that the latter ever made
a notation of that therapist's name so that he could be
contacted should a requisition for a therapist be received.
Instead , Greendorfer merely recommended that the thera-
pist contact Respondent Employers directly. So far as the
record discloses , he then washed his hands of the matter.
Thus, this factor tends to support the General Counsel's
theory that only member therapists were treated as being
represented by Respondent Union and thus included in the
bargaining unit prior to 1974.
Similarly , there is no evidence that any grievances have
been filed on behalf ofnonmember therapists . Both Wilcox
and Cooper testified to having done so, but inspection of
their descriptions of these purported grievances undermines
their assertions . Thus, while Wilcox claimed that he had
been contacted by nonmember therapist Lindy Preston in
1974, he admittedly had referred Preston to Business
Representative Joan Allen. As Allen did not appear as a
witness, as no documentation pertaining to a grievance on
behalf of Preston was proffered, and as Wilcox had no
personal knowledge of what took place after he had
referred Preston to Allen, this incident simply will not
suffice to establish that grievances were processed on behalf
of nonmember therapists.
Although Cooper asserted that he had processed griev-
ances on behalf of Audrey Coleman, Pirko Kolonan, and
Robert Delormie while serving as steward at Vallejo, his
description of these matters portrayed the incidents less as
grievances than as minor complaints on which he had
volunteered to help the three . No documentation was
provided to corroborate his testimony that these were
grievances within the meaning of that term as used in the
agreements , and none of the three individuals was pro-
duced to corroborate Cooper, though it was conceded that
Coleman , at least, was not only working for Respondent
Employers at the time of the hearing, but, in fact, was a
supervisor . Knott, with whom Cooper claimed to have
resolved the grievances, did appear as a witness , but did not
corroborate his assertions . Finally, Cooper acknowledged
that , at the time of the incidents to which he referred,
Coleman and Kolonan were students or interns and it
appears that this was the status occupied by Delormie as
well. Yet, it was not shown that students were included in
the bargaining unit , and it is doubtful that they were even
employees within the meaning of Section 2(3) of the Act.
Cedars-Sinai Medical Center, 223 NLRB 251 (1976). Coop-
er, it should be remembered was the individual who
claimed , among other matters , that yellow slips of paper
issued by Knott were disciplinary notices which had given
rise to protests that he had resolved . I did not credit that
testimony. Neither do I credit his testimony in this area.
While Moore asserted that he had spoken to all San
Francisco therapy department employees , including the
therapists, and had obtained their agreement to work-
reduced schedules in order to prevent the layoff of one
employee in that department, there is no evidence that the
position thereby preserved was that of a therapist and,
consequently, while the matter affected the therapists, there
is no evidence that the therapists themselves "utilized their
contract procedures." Silver Lake Nursing Home, 178
NLRB 478. To like effect was the testimony of Greendor-
fer, who spoke to two therapists while processing a
grievance , but who acknowledged that the grievance had
been one filed by an aide , concededly a classification
historically represented by Respondent Union . In these
circumstances , there is simply no evidence that a grievance
has ever been filed on behalf of a nonmember therapist and
this factor is a significant consideration in appraising
whether or not Respondent Union has historically repre-
sented nonmember therapists . Paramount Press, supra;
Silver Lake Nursing Homes, supra.
Eighth, some of the testimony by Respondents' witnesses
was intended to portray ongoing communications between
the officials of Respondent Union and the therapists,
independent of those assertedly occurring during the
negotiating process, discussed above . Greendorfer testified
that he had told physical therapists the same types of things
that he had told all members , and Wilcox testified that he
had spoken with therapists on many occasions while he had
served as steward at Sacramento . Cooper and therapist
Carlson discussed contract benefits frequently while the
former had been at the Vallejo facility . Yet, so far as the
record discloses , these conversations never rose beyond the
level of shoptalk . There is no evidence that would support a
finding that the substance or tenor of these conversations
indicated that the therapists understood that they were
being addressed as represented employees by officials of
their representative . To like effect were the notices posted
on behalf of Respondent Union at various facilities -
though therapists , as well as other department employees
may have read them, this would no more establish their
inclusion in the unit than would readership of a newspaper
convert the reader into a staff member of the publishing
company . No evidence was adduced to show that these
notices contained any material uniquely applicable to
nonmember therapists or, for that matter , uniquely applica-
ble to therapists.
Finally , during the strike which accompanied negotia-
tions for the 1973 agreement , almost all nonmember
therapists not only continued to work , but many of them
performed the duties of the striking employees . So far as the
record discloses, Respondent Union took no issue with
them for doing so, though presumably it would have at least
said something were it truly representing them in the
negotiations. Of course , as the General Counsel points out
in his brief, at the very next contract negotiations , Respon-
dent Union secured the change in article III of the
agreement . The fact remains , however, that the nonmember
therapists did continue working in 1973 and did perform
duties normally discharged by the striking employees,
without protest by Respondent Union.
Two points should be considered in conjunction with the
topic of negotiations : like employees concededly represent-
ed by Respondent Union , all therapists received retroactive
wage increases whenever such increases were negotiated
and, secondly, the notices of personnel action which
accompanied Carlson's increases between 1956 and 1966
attributed the increases to contract raises or addenda to
Respondents' contracts . Though both items would appear
to support Respondents ' defense, it is puzzling why only the
notices of personnel action for Carlson were produced and,
KAISER FOUNDATION HOSPITALS , ET AL. 479
further, why only those notices for the period 10 to 20 years
before the hearing were introduced. Seemingly, had such
notices been available for other therapists and had more
recent notices been available, they likewise would have
been produced. Having failed to offer notices of personnel
action for other therapists and having failed to offer notices
for the period more proximate to the hearing, it is fairly
inferrable that they did not exist. Borg-Warner Controls,
etc., 128 NLRB 1035, 1044-45 (1960); Missouri Transit
Company, 116 NLRB 587, 600-601 (1956), enfd. 250 F.2d
261 (C.A. 8, 1957). In any event, neither the retroactive
raises nor Carlson's notices of personnel action are incon-
sistent with the General Counsel's theory that, for nonmem-
ber therapists, the source of their benefits was exclusively
Respondent Employers' decision to implement its parity
policy by extending the benefits negotiated with Respon-
dent Union to employees which the latter was not repre-
senting.
5. Conclusion
A substantial majority of the therapists employed in
December 1974 testified that they had never designated nor
selected Respondent Union as their bargaining representa-
tive by the time that Respondents agreed to modify article
III of their successive agreements . Of itself, this evidence
would not have been dispositive had Respondents, in fact,
been able to demonstrate that all therapists had been
included historically in the bargaining unit and that the
December 1974 change was no more than an extension of
the union-security provision to an already represented
group of employees. However, when the clause in effect for
the 12-year period prior to the 1974 change is examined, it
quickly becomes apparent that the three classifications of
therapists are first broadly excluded from the recognition
clause and then that those therapists who become members
are specifically included under the recognition clause. This
pairing of exclusion and inclusion certainly makes it appear
that, prior to December 1974, Respondent Union was
recognized as the representative solely of member thera-
pists.
This conclusion is not dispelled by the evidence presented
by Respondents concerning their intent. The therapists
have never designated Respondent Union as their represen-
tative. No evidence was presented of specific discussions
during negotiations regarding the status of nonmember
therapists or regarding the inclusion of all therapists in the
unit, without regard to membership. Respondents' witness-
es were unable to explain what had taken place during the
negotiations which had led to formulation of the wording of
article III during the 1962 negotiations and, more impor-
tantly, no explanation was advanced to explain the reason
for using that wording. It was conceded that Respondent
Employers were aware that therapists did not desire
representation. Respondent Employers' policy of parity of
benefits for similarly situated employees precludes any
inference as to intent regarding therapist representation
based upon the fact that member and nonmember thera-
pists receive identical benefits. Respondent Employers
acknowledge that the benefits which it has negotiated with
Respondent Union have been extended to some employees
not represented by the latter and, so far as the record
discloses , without the latter's knowledge. Finally, the
therapists have not participated directly in negotiations and
there is no substantial credible evidence that they have
participated indirectly in the negotiating process, through
consultations and meetings with Respondent Union's
representative. Therefore, the evidence pertaining to the
intent of the contracting parties falls far short of overcom-
ing the language of the exclusion provision of article III
which appeared in Respondents' agreements for the 12-year
period preceding the 1974 agreement.
Nor if the evidence of practice of the contracting parties
sufficient to establish these points. At no point have a
significant number of therapists been members of Respon-
dent Union and at no time, so far as the record discloses,
has enforcement of the maintenance-of-membership clause
been undertaken, despite the evidence of at least three
resignations from membership. In fact, there has been no
showing that Respondent Union even made an effort to
compile a list of "competent" therapists incidental to
enforcement of that provision and there is evidence that, on
one occasion, an opportunity to include a therapist on such
a list was disregarded. The testimony presented concerning
what had been told to newly hired therapists was so general,
indefinite, and untrustworthy as to preclude a finding that
newly hired therapists had been told that they were
represented by Respondent Union without regard to their
membership status . Several benefits, including the wage
rates for occupational and speech therapists, were not even
mentioned in Respondents' contracts and, conversely, no
effort has been made to apply some provisions of the
agreement to the therapists. There is no evidence that any
grievance has ever been filed on behalf of a nonmember
therapist. Finally, almost all therapists ignored Respondent
Union's 1973 picket line and many of them performed the
work of striking employees, without protest by Respondent
Union and without Respondent Union making any effort
to deter them based upon an assertion that they, too, were
represented in the 1973 negotiations. In these circumstanc-
es, it can hardly be said that Respondents' practice
demonstrates that nonmember therapists were considered
to be a part of the bargaining unit.
It could, of course, be argued that my analysis is overly
detailed and picky. Yet, it is based upon the evidence which
Respondents chose to present. It was Respondents who
chose the language which had appeared in article III. It was
Respondents who had available the witnesses and the
opportunity to explain the discussions and intent underly-
ing the choice of that language. It was Respondents who
had available the records and witnesses which would have
served to dispell all doubt as to the application of their
successive agreements to the therapists, had that been the
fact. Indeed, as was pointed out during the hearing, even
the witnesses called by the General Counsel had been
available to Respondents for pretrial interview as to the
practice under these agreements. Yet, notwithstanding
these circumstances, Respondents chose to present a
paucity of records and only the vaguest of testimony to
overcome contractual language which specifically excluded
the therapists from the unit for which Respondent Union
has been recognized and which then included in that unit
only those therapists who become members of Respondent
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union . In these circumstances, Respondents have simply
failed to produce the evidence which should have been
adduced to support their defense and the only reasonable
conclusion which emerges from this record is that it has not
been shown that nonmember therapists have been included
historically in the bargaining unit . Paramount Press, supra,;
Silver Lake Nursing Home, supra.
Therefore , I find that, in December 1974, Respondents
added the nonmember therapists - which represented
virtually all of the therapists - to their bargaining unit,
without a majority of those employees having designated
Respondent Union as their bargaining representative and
after a substantial bargaining history during which it has
not been shown that the therapists were included in the
unit. "The fact that the [physical , occupational and speech
therapists ] have historically been excluded from the .. .
bargaining unit at [Respondent Employer's facilities]
means, of course , that they are entitled at this point to a
voice in whether or not they desire to be represented by a
labor organization ." Levine Hospital of Hayward Inc., 219
NLRB 327,328 (1975).
B. Whether the Therapists are Professional
Employees Entitled to a Separate Determination as
to Their Addition to a Unit of Nonprofessional
Employees
1. Status of therapists as professional employees
To be employed by Respondent Employers, a physical
therapist must be licensed by the State of California. That,
in turn , requires graduation from a school whose program
satisfies the requirements set forth in the California
Business and Professions Code and successful completion
of written , oral, and practical examinations . Thus, physical
therapists employed by Respondent Employers have bach-
elor of arts degrees in physical therapy and are licensed by
the State. They are members of the American Physical
Therapy Association , a professional organization for physi-
cal therapists , and participate in ongoing training and
educational programs conducted under the auspices of that
association . They work with both inpatients and outpa-
tients . Upon receipt of a doctor's prescription or order for a
patient, they independently evaluate the patient, test
muscle strength, neurological performance, deficits, and
physical abilities , and measure joint range of motion. Based
upon the results of this evaluation, the therapist then,
independently, prepares a written treatment plan, tailored
to the needs of the patient . In carrying out the plan,
physical therapists use ultrasound, diathermy, electrical
stimulating , weights , and traction equipment . After each
session with a patient , the therapist prepares a written
progress report , both for the patient 's medical file and for
review by the patient's physician.
Respondent Employers employ one speech therapist or
speech pathologist, Betty McDowell, who works at the
Vallejo rehabilitation center. McDowell has a bachelor's
S By way of amplification, when the parties had been unable to agree
upon certain provisions of the agreement, they submitted these matters,
including Respondent Union's proposal for modification of art. III, to a
nonbinding factfinding proceeding and on December 11, 1974, the factfin-
der, based upon representations that all therapists had been included in the
degree in communications disorders and has completed
work on a master's degree and for a teaching credential, as
well as having participated in clinical training. She possess-
es a speech pathology license issued by the State of
California Board of Medical Examiners and is a member of
the American Speech and Hearing Association, which
sponsors conferences and meetings designed to provide
ongoing education. The patients whom McDowell treats,
for the most part, have suffered strokes or brain injuries
affecting their voices. They are referred to her by a doctor
and, working in a separate room at Vallejo, she indepen-
dently evaluates the language skill of the patient and
independently prepares a plan of speech therapy suited to
the needs of the patient. She then carries out that plan,
using, as she sees fit, such equipment as a tape recorder, an
electrolarynx, and an audiometer. She maintains records of
her patients when she works with them and she, alone,
makes decisions regarding the discontinuance of speech
therapy for patients.
At the time of the hearing, Respondent Employers
employed two occupational therapists. As required by
Respondent Employers, both are registered with the
American Occupational Therapy Association, which re-
quires a bachelor of science or arts degree in occupational
therapy and a minimum of 6 months' clinical training for
registration. The association sponsors continuing education
through conferences and workshops. The occupational
therapists work with physically disabled patients upon
receipt of a doctor's order. They independently evaluate the
patient and, like the physical and speech therapists, make
an independent determination as to the appropriate thera-
py goals, deciding which skills are to be developed. The
occupational therapists follow their patient plans, making
their own decisions as to which equipment to use and,
normally, as to the duration of the therapy program. They
prepare periodic progress reports which become part of the
patients' files.
As the foregoing facts demonstrate that the physical,
speech, and occupational therapists have met specialized
educational requirements and possess advanced degrees of
knowledge and, further, demonstrate that they perform
intellectual and varied work, requiring consistent exercise
of discretion and subjective judgment, I find that they are
professional employees within the meaning of Section 2(12)
of the Act. The Mason Clinic, 221 NLRB 374, 377 (1975).
2. The effect of adding professional employees to
a unit including nonprofessional employees
As found above, in December 1975 the contracting
parties agreed to modify article III so that it would include
nonmember physical, speech , and occupational therapists
- almost all of the employees in these three classifications
- in the bargaining unit .5 Although these professional
employees had been historically excluded from the bargain-
ing unit, no election was afforded them nor did a majority
of them indicate in any other manner either a desire to be
unit historically, recommended that the proposal be adopted. Such a
recommendation , to the extent that it determines the scope of the unit, is not
binding on the Board . See Local 814, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Morgan and Brother-
Manhattan Storage Co., Inc.), 223 NLRB 527 (1976), and cases cited therein
KAISER FOUNDATION HOSPITALS, ET AL. 481
represented by Respondent Union or a desire to be
included in a unit with the nonprofessional employees
whom Respondent Union had historically represented. On
March 13, 1975, Respondent Employers distributed or
posted an interoffice memorandum to all therapists, advis-
ing them of their obligations under the now modified article
III and attaching a copy of that article, including the
portion providing for replacement of employees who failed
to observe the financial requirements. On May 13, 1975,
Respondent Union made the latter crystal clear when its
secretary-treasurer, Timothy J. Twomy, authored a letter to
all therapists, stating, inter alia:
I hereby demand that you meet your obligation under
Article III, Section 3, and remit the appropriate dues or
fees within 15 days. Your failure will result in our
notification to Kaiser Hospitals of your failure to
comply with this section, demanding your termination.
Consequently, the situation presented in the instant case
is virtually identical to that which occurred in St. Luke's
Hospital Center, 221 NLRB 1314 (1976), where a violation
was based upon efforts to enforce a union-security clause in
a contract combining professional with nonprofessional
employees in the unit, without having accorded the former
an opportunity to vote on whether they desired to be
included. As the situation is the same in the instant case, so
also would be the results.
C. Whether Section 10(b) of the Act Precludes
Finding a Violation Against Respondent Employers
The violations found above are all rooted in the expan-
sion of the bargaining unit in December 1974 to include all
therapists. Consequently, it was the act of recognition
which constitutes the unlawful act and all conduct which
followed - the formulation of the precise language for the
union-security clause, the execution of the agreement, the
implementation and enforcement of the agreement -
becomes unlawful only in light of that act of recognition.
Thus, the 6-month limitation of Section 10(b) of the Act
commences in December 1974. Paper Products and Miscel-
laneous Chauffeurs, Warehousemen and Helpers, Local 27
(Combined Container Industries), 209 NLRB 883 (1974).
While this poses no problem for the charge in Case 20-CB-
3483, it means that the charge in Case 20-CA-10516, which
was not served until August 13, 1975, clearly does not
encompass events occurring in the month of December
1974. Nor does the Charging Party's July 3, 1975, commu-
nication to the General Counsel, appealing the dismissal of
Case 20-CB-3483 and seeking "to amend said charges to
include charges of unfair labor practices against" Respon-
dent Employers, assuming that this communication serves
as a charge under the Board's Rules and Regulations, Series
8, as amended, Sections 102.10 through 102.14 and 102.33 .6
This being the case, the charge against Respondent Em-
ployers is barred under Section 10(b) of the Act. The
6 I reject the Charging Party 's argument that by naming Respondent
Employers in Case 20-CB-3483 and by serving them with a copy of that
charge, therefore , Case 20-.CB-3483 serves as a charge against Respondent
Employers . That charge is clearly limited to Respondent Union and, though
it attributes unlawful conduct to the latter, it makes no assertions of any
underlying unfair labor practices occurred more than 6
months prior to the filing of both the July 3, 1975, letter and
the charge in Case 20-CA-10516. All conduct occurring
during the 6 months immediately prior thereto was lawful
on its face and could only be held unlawful by reliance on
the fact of the unlawful expansion of the unit in December
1974. In this posture, the charge against Respondent
Employers can only be held time-barred under Section
10(b) of the Act. Combined Container Industries, supra.
At the commencement of the hearing, in responding to
Respondent Employer's motion to dismiss Case 20-CA-
10516, counsel for the General Counsel pointed out that
consideration should be accorded to the possibility that
"the employees affected did not know and had no way of
knowing" about Respondents' agreement to expand the
unit to include all therapists. However, there is no evidence
that Respondents undertook any effort to conceal this fact.
Moreover, by the end of January 1975, it was abundantly
clear to virtually every one of the therapists who appeared
in this hearing what had occurred, although they might not
have completely understood the terms of the union-security
clause to which they would be subject. Consequently, there
was ample time for them to have filed a timely charge
against Respondent Employers just as was done against
Respondent Union. That they failed to do so is hardly
justification for attempting to obtain an exemption from
the accommodation which Congress has struck between the
competing factors of employee self-determination and of
burying stale disputes. Local Lodge No. 1424, International
Association of Machinists, AFL-CIO [Bryan Manufacturing
Co.] v. N.L.R.B., 362 U.S. 411,428 (1960).
Therefore, I shall recommend that Case 20-CA-10516 be
dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Union set forth above,
occurring in connection with the operations of Respondent
Employers set forth 3in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Kaiser Foundation Hospitals, The Permanente Med-
ical Group, and Kaiser Foundation Health Plan are a joint
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Hospital and Institutional Workers Union, Local
250, is a labor organization within the meaning of Section
2(5) of the Act.
3. By accepting exclusive recognition as the representa-
tive of all physical therapists, speech therapists, and
unlawful conduct on the part of Respondent Employers and could hardly
serve as notice to Respondent Employers, Respondent Umon, or the Board
of assertions of unlawful conduct by any person other than Respondent
Umon.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occupational therapists employed by Kaiser Foundation
Hospital, The Permanente Medical Group, and Kaiser
Foundation Health Plan in their Northern California
facilities , at a time when a majority of these professional
employees had not designated Respondent Union as their
collective-bargaining representative , had not been included
historically in the bargaining unit for which Respondent
Union has served as the representative , and had not been
afforded an opportunity to express a choice as to whether
they wished to be included in a unit with nonprofessional
employees , Respondent Union has violated Section
8(b)(1)(A) of the Act.
4. By entering into a collective-bargaining agreement
with Kaiser Foundation Hospitals , The Permanente Medi-
cal Group, and Kaiser Foundation Health Plan, which
required all therapists to either join and remain a member
of Respondent Union or alternatively pay a monthly fee
equivalent to the established monthly dues of Respondent
Union , Respondent Union thereby violated Section 8(bX2)
of the Act.
5. By threatening to cause Kaiser Foundation Hospi-
tals, The Permanente Medical Group , and Kaiser Founda-
tion Health Plan to discharge physical therapists, speech
therapists , and occupational therapists for failure to either
become and remain members of Respondent Union or to
pay a monthly fee equivalent to monthly dues , Respondent
Union thereby violated Section 8(b)(2) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The charge in Case 20-CA- 10516 alleges conduct
occurring outside the 6 -month limitation period prescribed
in Section 10(b) of the Act.
THE REMEDY
Having found that Respondent Union has engaged in,
and is engaging in, certain unfair labor practices, I shall
recommend that it be ordered to cease and desist therefrom
and that it take certain affirmative action to effectuate the
policies of the Act.
In order to dissipate the effects of Respondent Union's
unfair labor practices , I shall recommend that it be ordered
to cease maintaining or giving effect to its current recogni-
tion and the 1974-75 collective-bargaining agreement with
Kaiser Foundation Hospitals , The Permanente Medical
Group, and Kaiser Foundation Health Plan to the extent
that the recognition and agreement covers physical thera-
pists , speech therapists , and occupational therapists, or any
modification , extension , renewal, supplement, or successive
agreement, until such time as Respondent Union shall have
been certified by the Board as the exclusive representative
of the employees in question.
As shown above, on May 13, 1975, Respondent Union
threatened to seek the termination of therapists who failed
to tender the equivalent of monthly dues pursuant to the
union-security clause contained in the collective -bargaining
agreement which emanated from Respondent Union's
acceptance of unlawful recognition as the bargaining
representative of all therapists. Prior to May 13, 1975, a
r 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 102 48
substantial number of therapists protested, in writing, their
addition to the unit for which Respondent Union had been
serving as the bargaining representative . Following receipt
of the letter, at least eight therapists accompanied their
tender of fees with letters protesting strenuously the need to
make such payments. In these circumstances, Respondent
Union's conduct, while not so extreme , is similar to that
which occurred in Haven Manor Health Related Facility,
226 NLRB 329 (1976). That is, the therapists were coerced
into paying these fees initially and into continuing to pay
these fees, or, alternatively, into becoming members of
Respondent Union and remaining members of Respondent
Union, depending upon which of the alternatives presented
by the collective-bargaining agreement were chosen by the
individual therapists, as a result of Respondent Union's
coercion. Accordingly, I shall recommend that all dues and
fees received by Respondent Union pursuant to the
December 1974 agreement from physical, speech, and
occupational therapists be returned, with interest at the rate
of 6 percent per annum. F. W. Woolworth Company, 90
NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER?
Respondent Union, Hospital and Institutional Workers,
Local 250, its officers , agents, and representatives , shall:
1. Cease and desist from:
(a) Continuing to accept exclusive recognition as the
representative of physical therapists, occupational thera-
pists, and speech therapists employed at Northern Califor-
nia facilities of Kaiser Foundation Hospitals, The Perman-
ente Medical Group, and Kaiser Foundation Health Plan
or entering into any collective-bargaining agreement affect-
ing those employees, unless and until it has been duly
certified by the National Labor Relations Board as the
exclusive bargaining representative of a unit including
physical therapists, speech therapists, and occupational
therapists.
(b) Maintaining or giving effect to the collective-bargain-
ing agreement of December 1974 with Kaiser Foundation
Hospitals, The Permanente Medical Group, and Kaiser
Foundation Health Plan, or to any modification, extension,
renewal, supplement, or successive agreement thereto, or to
any checkoff cards executed pursuant to said contract to
the extent that they pertain to physical therapists, speech
therapists , and occupational therapists.
(c) Maintaining, enforcing , or attempting to maintain or
enforce in any manner the union-security clause of the
aforementioned collective -bargaining agreement with re-
spect to physical therapists, speech therapists, and occupa-
tional therapists of Kaiser Foundation Hospitals, The
Permanente Medical Group, and Kaiser Foundation
Health Plan, who have refused to comply with said clause.
(d) Including in any collective -bargaining unit consisting
of nonprofessional employees, any professional employees,
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.
KAISER FOUNDATION HOSPITALS, ET AL.
including physical therapists, speech therapists, and occu-
pational therapists, who have not indicated a desire to be
represented in a bargaining unit with nonprofessional
employees.
(e) In any other manner restraining or coercing employ-
ees in the exercise of the rights guaranteed them in Sections
7 and 9(b)(1) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Withdraw, rescind, and give no further effect to any
notice, memorandum, letter, or statement which can
reasonably be construed as maintaining or enforcing, or
attempting to maintain or enforce, the union-security
clause of the December 1974 agreement with respect to the
physical therapists, speech therapists, and occupational
therapists who have refused to comply therewith.
(b) Reimburse all physical therapists, speech therapists,
and occupational therapists for dues or for fees equivalent
to dues paid by or withheld from them in the manner
provided in "The Remedy" section of this Decision.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
records necessary or useful to compute the backpay set
forth in "The Remedy" section of this Decision.
(d) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix."8 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent Union's
authorized representative, shall be posted by Respondent
Union immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent Union to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Mail to the Regional Director for Region 20, signed
copies of said notices for posting by Kaiser Foundation
Hospitals, The Permanente Medical Group, and Kaiser
Foundation Health Plan, if willing, in places where notices
to employees are customarily posted. Copies of said notice,
to be furnished by the Regional Director for Region 20,
after being duly signed by Respondent Union's authorized
representative, shall be returned forthwith to the Regional
Director.
(f) Notify the Regional Director for Region 20, in writing,
within 20 days from the date of this Order, what steps
Respondent Union has taken to comply herewith.
IT IS FURTHER ORDERED that Case 20-CA-10516 be and
hereby is, dismissed.
APPENDIX
483
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT continue to accept exclusive recogni-
tion as the representative of physical therapists, occupa-
tional therapists, and speech therapists employed at
Northern California facilities of Kaiser Foundation
Hospitals, The Permanente Medical Group, and Kaiser
Foundation Health Plan, nor will we enter into any
collective-bargaining agreement affecting those em-
ployees unless and until we have been duly certified by
the National Labor Relations Board as the exclusive
bargaining representative of physical therapists, speech
therapists, and occupational therapists.
WE WILL NOT maintain or give effect to the collective-
bargaining agreement of December 1974 with Kaiser
Foundation Hospitals, The Permanente Medical
Group, and Kaiser Foundation Health Plan, nor to any
modification, extension, renewal, supplement, or suc-
cessive agreement thereto, nor to any checkoff cards
executed pursuant to said contract to the extent that
they pertain to physical therapists, speech therapists,
and occupational therapists.
WE WILL NOT maintain, enforce, or attempt to
maintain or enforce, in any manner the union-security
clause of the aforementioned collective-bargaining
agreement with respect to physical therapists, speech
therapists, and occupational therapists of Kaiser Foun-
dation Hospitals, The Permanente Medical Group, and
Kaiser Foundation Health Plan, who have refused to
comply with said clause.
WE WILL NOT include in any collective-bargaining
unit consisting of nonprofessional employees, any
professional employees, including physical therapists,
speech therapists, and occupational therapists, who
have not indicated a desire to be represented in a
bargaining unit with nonprofessional employees.
WE WILL NOT in any manner restrain and coerce
employees in the exercise of rights guaranteed them in
Section 7 and 9(b)(1) of the Act.
WE WILL withdraw, rescind, and give no further
effect to any notice, memorandum, letter, or statement
which can reasonably be construed as maintaining or
enforcing, or attempting to maintain or enforce, the
union-security clause of our December 1974 agreement
with Kaiser Foundation Hospitals, The Permanente
Medical Group, and Kaiser Foundation Health Plan
insofar as they pertain to physical therapists, speech
therapists, and occupational therapists who have re-
fused to comply therewith.
8 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL reimburse all physical therapists, speech Permanente Medical Group, and Kaiser Foundation
therapists, and occupational therapists for dues or fees Health Plan.
equivalent to dues paid by or withheld from them under HOSPITAL. AND
the terms of the December 1974 collective-bargaining
INSTITUTIONAL WORKERSagreement with Kaiser Foundation Hospitals, The
UNION, LocAL 250