Los Angles New Hospital

National Labor Relations Board - Board Decisions

Sep 11, 1979

244 N.L.R.B. 960 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Los Angeles New Hospital and Hospital and Service
Employees Union, Local 399, SEIU, AFL-CIO.
Case 31 CA 8181
September 11, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENE.IIO
On May 8, 1979, Administrative Law Judge James
T. Rasbury issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief. The Respondent filed an
answering brief and, in addition, filed cross-excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs'
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, as
modified herein, and to adopt his recommended Or-
der, as modified herein.
1. We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(1) of the Act
by engaging in numerous acts of coercive interroga-
tion and by threatening employees. In particular, we
agree with his finding that Supervisor Randall unlaw-
fully threatened employee Cooke with discharge if he
persisted in discussing and reading union literature
during his nonworking time and in a nonpatient care
area. In view of the Supreme Court's recent decision
in N.L.R.B. v. Baptist Hospital, Inc., supra, however,
we shall elaborate on the Administrative Law Judge's
findings in this regard.
In Baptist Hospital, the Supreme Court reaffirmed
its recent holding in Beth Israel Hospital v. N.L.R.B.,
I Subsequent to the issuance of the Administrative Law Judge's Decision
herein and the filing of exceptions and briefs by the parties. the Supreme
Court issued its decision in N.LRB. v. Baptist Hospital, Inc.. 442 U.S. 773
(1979). a case involving the Board's rules regarding restrictions on employee
solicitation and distribution in health care institutions. Thereafter. Respon-
dent filed a request for special leave to file a supplemental brief arguing the
effect of this decision on the Administrative Law Judge's findings. The
Board's associate executive secretary denied this request as untimely. Upon
reconsideration, and in view of the Supreme Court's decision in Baptist Hos-
pital, we have decided to consider Respondent's statement. a copy of which
was retained in the Board's files. In view of our findings set forth more fully
hereafter, however, nothing in Respondent's statement convinces us that a
different result is warranted in this case.
2 In the absence of exceptions, we adopt. pro forma,. the Administrative
Law Judge's dismissal of the complaint with respect to statements attributed
by employee Fox to Supervisors Cam, Stratton, and Siolek
437 U.S. 483 (1978), that the Board's adverse pre-
sumption regarding employer proscriptions against
solicitation and distribution in areas other than im-
mediate patient care areas strikes an appropriate bal-
ance between the legitimate interests of hospital em-
ployees, patients, and employers. The Court,
however, expressed concern about the propriety of
applying the adverse presumption to restrictions on
solicitation in hospital corridors and public sitting
rooms located on patient floors. The Court noted that
discussion of nonpatient care topics in these areas
might conceivably interfere with the "necessity of cre-
ating and maintaining a tranquil atmosphere
throughout the hospital for patients and visitors." 442
U.S. at 780. Nonetheless, the Court held that the pre-
sumption was valid as applied to certain public areas
in hospitals, such as cafeterias, gift shops, and first
floor lobbies. Implicitly, the Court also held the pre-
sumption valid with respect to those areas which are
accessible only to hospital staff, not patients or visi-
tors. See id.
As found by the Administrative Law Judge, there
is credible testimony that Respondent threatened an
employee with discharge if the employee persisted in
reading union brochures to several employees in an
enclosed room used by the employees as a break area.
Noting that the record shows that the room was used
regularly by the employees for lunches and breaks
and contains a couch and two chairs for that purpose,
the Administrative Law Judge rejected Respondent's
contention that the room was not a break area but
rather was part of an adjacent operating room. In
addition to those factors relied on by the Administra-
tive Law Judge, the record shows that at one time
there was a sign on a door leading into this room
designating it the "Doctors' Lounge." The room con-
tains a bulletin board,3 and although the room is ad-
jacent to a corridor leading to an operating room, the
room is not generally accessible to patients or visitors.
Thus, although on occasion a doctor might use the
room to confer with a patient's relatives or friends,
there is a separate waiting area for visitors on the
same floor. In view of the foregoing, we find that un-
der any reading of the Court's opinion in Baptist Hos-
pital the breakroom involved here is a nonpatient care
area. See 442 U.S. 784-785 (Chief Justice Burger,
concurring). Accordingly, we adopt the Administra-
tive Law Judge's conclusion that Respondent's at-
tempt to restrict Cooke's activities therein violated
Section 8(a)( 1) of the Act. See St. Joseph Hospital, 228
NLRB 158, 160 (1977).
2. Contrary to the Administrative Law Judge, the
record amply supports a finding that Respondent cre-
See also Beth Israel Hospital . N L. R B. supra at 490.
244 NLRB No. 157
960
LOS ANGELES NEW HOSPITAL
ated the impression it was keeping its employees' pro-
tected activities under surveillance. In dismissing the
General Counsel's allegations of actual surveillance
and creating the impression thereof, the Administra-
tive Law Judge concluded that the record would not
sustain a finding that either Respondent's president
and chairman of the board, Stanley Diller, or Super-
visors Sol Goldner and Margaret Stratton engaged in
actual surveillance on June 19, 1978. In agreement
with the Administrative Law Judge, we find that the
record does not create more than a mere suspicion
regarding the actions of the foregoing supervisors. Al-
though Diller was observed standing next to his auto-
mobile on Respondent's premises about the time a
union organizational meeting was scheduled to take
place at a hotel located across the street, there is no
testimony that he did more than simply stand there.
Similarly. Goldner and Stratton, who were seen in the
hotel's bar at the time of the above-mentioned meet-
ing, regularly stopped at that bar after work, accord-
ing to credited testimony. Thus, it would be specula-
tive at best to infer that their presence in the bar at
the time the organizational meeting was being con-
ducted in another room in the hotel was for the pur-
pose of surveilling that meeting. Cf. Fox & Jacobs,
Inc., 221 NLRB 1159(1975).
However, the Administrative Law Judge evidently
failed to consider additional evidence which we be-
lieve supports the General Counsel's allegation that
Respondent created the impression of surveillance.
According to the credited testimony of employee Fox,
Administrator Jeffrey Steadman told Fox that he
"felt sorry for me because I was under a lot of pres-
sure and that I had to watch every move I made be-
cause Mr. Diller was watching me." Later, according
to Fox, he told Diller that he had ceased his involve-
ment with the Union and Diller responded: "That's
good, because he's still watching me." The Adminis-
trative Law Judge found these statements, constituted
"derogatory and repressive antiunion comments." We
find instead that they amounted to threats of reprisal
and, further, particularly considering evidence of Re-
spondent's interrogation of employees about the
union activities and sympathies of fellow employees,
clearly created the impression that employees' union
and other protected, concerted activities were under
surveillance. See King Acres Stores, Inc., 220 NLRB
925 (1975); The Dayton Tire & Rubber Company, a
Division of the Firestone Tire & Rubber Company, 207
NLRB 624 (1973).
3. Finally, we disagree with the Administrative
Law Judge's finding that Respondent did not violate
Section 8(a)(1) of the Act when Diller and Goldner
questioned Theresa Siminski, Goldner's secretary,
about her union activities and the activities of other
employees, requested that she not attend a scheduled
union meeting, and, later, suggested that she attend
the meeting and report back to management what
transpired. The record, in our view, fails to support
the Administrative Law Judge's finding that Siminski
was a confidential secretary and not entitled to pro-
tection under the Act.
The Administrative Law Judge found that at all
times relevant Siminski was a "personal and confi-
dential secretary" to Goldner. Goldner's duties at the
time involved such matters as budgeting, accounting,
payroll, employee evaluation, raises, and data pro-
cessing. Additionally, he attended regular manage-
ment meetings and was Respondent's representative
at negotiations with insurance carriers concerning
Respondent's group insurance plans. Siminski's du-
ties included typing and filing of all of Goldner's
memoranda and correspondence, some of which re-
lated to the Respondent's personnel and other man-
agement matters. In finding Siminski to be a confi-
dential secretary, the Administrative law Judge
relied specifically on eight documents typed b
Siminski for Goldner. They included memoranda to
employees regarding changes in employee benefits.
evaluations of particular employees and supervisors,
an employee's termination letter, and other internal
management memoranda regarding payroll and other
matters.
Contrary to the Administrative Law Judge. we do
not believe that Siminski's access to confidential in-
formation, some of it relating to labor relations, or
her having typed the above-described documents, is
sufficient to have constituted her a confidential em-
ployee. As the Board stated in The B. F. Goodrich
Company, 115 NLRB 722, 724 (1956), the category of
confidential employees is limited to persons "who as-
sist and act in a confidential [relationship] to persons
who formulate, determine, and effectuate manage-
ment policies in the field of labor relations." This
category is a narrow one. Dun & Bradstreet, Incr., 240
NLRB 162 (1979). Mere access to confidential mate-
rial, albeit confidential labor relations material, is not
sufficient to confer confidential status. Ernst & Ernst
National Warehouse, 228 NLRB 590, 591 (1977). Fur-
ther, the typing of confidential labor relations memo-
randa does not, without more, imply confidential sta-
tus. United States Postal Service, 232 NLRB 556
(1978). Accordingly, we find that Siminski was not a
confidential employee and that Goldner's and Diller's
interrogation of her, their attempt to dissuade her
from engaging in union activity, and their requests
that she report on the protected activities of other
9hl61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were all in violation of Section 8(a)(1) of
the Act.4
AMENDED CONCIUSIONS ()F LAW
Substitute the following for Conclusions of Law 3
and 4 of the Administrative Law Judge:
"3. Respondent, through the activities of Supervi-
sors Diller, Steadman, Randall, and Zafrani, has in-
terrogated and threatened employees, and created the
impression that its employees' protected activities
were under surveillance, thereby interfering with, re-
straining, and coercing its employees in the exercise
of their rights guaranteed by Section 7 of the Act in
violation of Section 8(a)(1) of the Act.
"4. The Respondent has not engaged in actual sur-
veillance of its employees' protected activities, nor
has it acted with an illegal discriminatory motive in
instituting a number of changes in its employees'
fringe benefits."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the recom-
mended Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Los Angeles New Hospital, Los Angeles, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph (a):
"(a) Interrogating employees about their union ac-
tivities or sympathies or the activities or sympathies
of other employees; requesting employees to attend
union meetings in order to inform on the union activi-
ties or sympathies of other employees; suggesting that
employees refrain from engaging in union or other
protected concerted activities; telling employees that
they are being watched thereby creating the impres-
sion of surveillance; or threatening employees with
reprisals for engaging in union or other protected
concerted activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
4 Additionally, we would note that the Administrative Law Judge's finding
that confidential employees do not enjoy protection under the Act, although
consistent with the decisions of several courts of appeals, is, with all respect
to those courts of appeals, inconsistent with current Board law. See Hen-
dricks County Rural Electric Membership Corporation, 236 NLRB 1616
(1978). It is well settled that it is the duty of an administrative law judge "to
apply established Board precedent which the Supreme Court has not re-
versed." Iowa Beef Packers, Inc., 144 NLRB 615. 616 (1965).
Because Member Penello is finding here, as he did in Hendricks, that the
individual in question was not a "confidential employee." Member Penello
does not regard the issue of whether such persons are protected by the Act as
being before him.
NOTICE I) EMPI.()YES
POSTED BY ORDER OF IIil
NATIONAL LABOR REILATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice.
The Act gives employees the following rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representa-
tives they choose
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT question our employees about
their union membership, activities, or desires, or
about the union membership, activities, or de-
sires of other employees.
WE WILL NOT suggest that employees attend
union meetings and report back to management.
WE WILL NOT request that employees refrain
from attending union meetings.
WE WILL NOT tell employees they are being
watched, thereby creating the impression of sur-
veillance.
WE WILL NO1 prohibit our employees from en-
gaging in union and/or protected, concerted ac-
tivities in nonpatient care areas during their non-
working time.
WE WILL NOT threaten our employees because
of their concerted, protected activities and/or
their union activities or membership.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
Los ANGELES NEW HOSPITAL.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard by me in Los Angeles, California, on December
5, 6, and 7, 1978.1 On September 15 the Regional Director
for Region 31 of the National Labor Relations Board issued
I All dates hereinafter shall refer to the year 1978, unless otherwise indi-
cated.
APPENDIX
962
LOS ANGELES NEW HOSPITAL
a complaint and notice of hearing, based on an unfair labor
practice charge filed on July 12, alleging that Los Angeles
New Hospital (herein Hospital or Respondent) had violated
Section 8(a)( ) and 3) of the National Labor Relations Act,
as amended, 29 U.S.C.. §151, et seq. (herein the Act).
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses. and to file briefs. Based upon the entire record. in-
cluding the briefs filed by the General Counsel and Respon-
dent's counsel, and upon my observation of the demeanor
of the witnesses, I make the following:
FINDINGS OF FA(I
I. JURISI)I( ION
Respondent is now, and at all times material herein has
been, a limited partnership with an office and principal
place of business located in Los Angeles, California, where
it is engaged in the operation of a proprietary hospital. Re-
spondent, in the course and conduct of its business opera-
tions, annually purchases and receives goods or services val-
ued in excess of $50,000 directly from suppliers located
outside the State of California. Respondent, in the course
and conduct of its business operations, annually derives
gross revenues in excess of $500,000. On the basis of these
admitted facts, I herewith find Respondent to be, and at all
times material herein to have been. an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
It. THE LABOR ORGANIZATION
Respondent admits and I herewith find the Union to be,
and at all times material herein to have been, a labor or-
ganization within the meaning of Section 2(5) of the Act.
Ill. THE ISSUES
I. The complaint alleges numerous acts by acknowl-
edged hospital supervisors to be threats, interrogation, sur-
veillance and/or the impression of surveillance of the em-
ployees' union and/or concerted, protected activities and
thus violative of Section 8(a)(1) of the Act. Changes in the
medical and dental plans and reduction in sick leave bene-
fits are alleged to be discriminatory for purposes of discour-
aging union activities and thus violate Section 8(a)(3).
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
On or about May 30 the hospital notified all of its em-
ployees, including supervisors, that the hospital's sick leave
2 The following named individuals were acknowledged by the hospital to
be supervisors and to occupy the positions indicated: Michael Bland-head
of security; Vickie Cam-lab supervisor; Stanley Diller-president and
chairman of the board: Janet Ford--director of purchasing: Lorin French-
assistant supervisor, patient accounts; Sol Goldner-assistant administrator,
fiscal affairs: Ora Randall-operating room supervisor; Mary Siolek-nurs-
ing coordinator; Jeffrey Steadman-administrator; Margaret Sratton-
head of admitting; Ron David-supervisor, X-ray department; and Cy
Zafrani assistant administrator.
policy would be changed effective June 5 (Resp. Exh. 12).
In response to the May 30 memo regarding the change in
sick leave policy, two employees- Richard Fox and Rich-
ard Hopkins-began circulating a petition protesting the
change in policy. Copies of the petition were prominently
displayed on bulletin boards, and Fox and Hopkins circu-
lated the petition during the hospital's daytime hours, mak-
ing no effort to keep their activities secret. and, in fact.
approached numerous supervisory employees and asked
them to read and sign the petition.
Stxon after the petition had been circulated throughout
the hospital the primary petition organizers - Fox and Hop-
kins-requested a meeting with Jeffrey Steadman, the hos-
pital's administrator.' The two employees met with Stead-
man and, after showing him the petition with the numerous
signatures, asked Steadman to help them arrange a meeting
to present the petition to Stanley Diller, the president and
chairman of the board of the hospital. Thereafter a meeting
was arranged which was attended by employees Fox. Hop-
kins. Robert Bailey. Shirley Dizinski, and Megan Edgeton,
with Steadman. Homlberg-personnel director and Dil-
ler. The petition was presented to Diller, and there was
discussion concerning the possibility of forming a hospital
grievance committee. The committee was formed and it met
in a classroom on the seventh floor of the hospital several
days later with management's knowledge and permission.
On June 19 a number of the hospital's emplosees met
with representatives of the Union at the Ramada Inn. a
restaurant, bar, and hotel directly across the street from the
hospital. The June 19 meeting was widely publicized, and
there was no apparent attempt to keep the meeting place
secret.
It was during this period of time that a number of inci-
dents and conversations are alleged to have occurred which
the General Counsel contends establish the violations.
B. Details of the Various Incidentrs
Richard Fox testified that on Friday, June 2, after the
employees had received ntification the day before stating
that the hospital would no longer pay for the first day of'
sick leave, he and Richard Hopkins began circulating peti-
tions to be presented to management protesting this change
of policy. Fox testified that he had received permission
from his supervisor, Vickie Cam, to circulate the petition
because the work was slow, and he was asked by Vickie
Cam to remain available in the event the workload
changed. According to Fox, Cam indicated her sympathy
and approval with what he was doing, but indicated she
would not sign the petition because she was a supervisor, or
member of management. Fox testified that he also spoke to
Margaret Stratton and Mary Siolek. According to Fox.
while each of these supervisors were in sympathy with what
he was doing, they each warned him that he had best be
careful because his job might be in jeopardy. On cross-ex-
amination he was uncertain of what words had been used
by the supervisors.
3 Steadman's employment with the hospital terminated on or about Sep-
tember 25.
963
DF[('ISIONS OF NATIONAL. I.ABOR REI.ATIONS BOARD)
Victoria L. ('am testified that she is no longer employed
by Respondent. She voluntarily resigned effective June 16.
after having submitted her resignation as of May I hut
agreed to stay on f)r an additional period because a num-
ber of other people in her department were scheduled for
vacation. ('am testified that she recalled Fox having come
to her with the petition on Monday. June 5, after the notifi-
cation had been received by all employees the previous
Thursday. Cam testified that she recalled Fox asking her if'
he could pass the letter around to other employees to sign,
and that she gave him permission, but told him to do it at
his breaktime and lunch periods in order not to jeopardize a
job in the laboratory. According to Cam, Fox requested to
circulate the petition on his free time and she gave him
permission, "but I told him, since I believed he was sched-
uled to be in the section at that time, where he was to be in
there most of the time because of the emergency work that
comes in, so I told him to be careful about not missing work
or emergency work when he decides to circulate the letter
around. Then I told him to be careful and to make sure he
doesn't defeat the purpose of this whole thing and to be
open with the administration and talk to them about it."
Cam specifically denied warning Fox that his job was in
jeopardy or that she would discipline him in any way or
report him to anyone else if' he continued to circulate the
petition.
Margaret Stratton testified that she was approached by
Fox and asked to sign the petition. which she declined by
replying that she was part of management and did not feel
that she should sign the petition. Stratton testified that she
told Fox he should bring what he was doing to the attention
of the department head and to the administration, so as not
to jeopardize the effectiveness of' the policy, "that it should
be through the chain-of-command." Stratton stated she also
told Fox she sympathized with the purposes of the petition,
and for that reason felt it was important for him to follow
the proper chain-of-command so that the administration
could understand what the employees were upset about and
act on it. Stratton specifically denied that she told Fox that
he would be fired or that he should be careful that Diller
did not learn about the petition, or that she threatened to
report his activities in any way.
Mary Siolek was not called by Respondent to testify.
According to the testimony of Fox, after the petition had
received the signatures of most of the employees, he and
Hopkins went to Steadman's office for the purpose of re-
questing a meeting with Diller in order to present the peti-
tion and signatures to him. Steadman-who appeared to be
a very sincere and honest witness that had great difficulty in
recalling the details of the incident-recalled that Hopkins
and Fox had come to see him, and that they were very
much concerned about the recent change in the sick-leave
policy. There was little or no testimony regarding what may
have occurred when the petitions were presented to Diller.
However, either through Diller or Steadman, Fox testified
that they obtained permission to have a permanent em-
ployee grievance committee and that this committee re-
ceived permission and did meet in the seventh floor meeting
room of the hospital. According to the testimony of Fox, at
the meeting of the employee grievance committee numer-
ous complaints were discussed, and evidently the tone of
the meeting changed trom just a grievance committee meet-
ing to a union organizational meeting. Fox testified that he
went back to Steadman and advised him that he was not in
sy mnpathy with what the employee grievance committee was
doing. and that ift in fact the employees did resort to a
union, that he would probably resign.
Out of this confusion an organizational meeting with the
Union was set up lfr June 19 to take place at the Ramada
Inn, which was located directly across the street from the
hospital.
Fox further testified that on June 17 and 18. he was in-
volved in passing out "memos" which were "to let the em-
ployees know that it was-- there wias a meeting at the
Ramada Inn and that they needed their support and they
could find out what was happening as far as benefits and
things for the Hlospital." The memos were being passed out
in the cafeteria. and when iller came in, he asked Fox if
he could have one of the memos, after which he commented
that he (Diller) "felt I was working too hard in the matter."
On June 19 Fox stated that he had been working in the
lab when he heard that Diller was there looking for him,
and he went to Diller's office. Diller denied that he had
been looking for Fox. but Fox took advantage of this op-
portunity to explain to Diller that he was working hard on
this matter because he was an asthmatic "and if I need 8
hours off: I can't afford to lose the pay for it." According to
Fox, Diller then said "that a union would something to
the effect that a union would never survive in that Hospital,
and that we were fools and troublemakers for trying to
bring one in." In this conversation Diller asked Fox for the
names of the committee members which Fox freely gave
him because. as Fox stated, "the committee was never an
underground movement." Diller wrote the names down as
they were given to him by Fox. Later. two members of the
committee Theresa Siminski and Richard Hopkins
asked Fox why he had given their names to Diller because
they had been called into Diller's office and questioned.
Later in the day on June 19 after Fox had talked to
Diller, he (Fox) spoke to Steadman in his office. This con-
versation with Steadman appears to have been initiated by
Fox out of his concern that if a union was started in the
hospital that Diller was sufficiently wealthy to just shut
down the hospital for several months and then reopen it
with all new employees. During this conversation in which
Fox expressed some of his fears to Steadman, according to
Fox, Steadman said he "felt sorry for me because I was
under a lot of pressure and that I had to watch every move
I made because Mr. Diller was watching me." Fox testified
that he attended the union organizational meeting on June
19 at the Ramada Inn where he advised the employees, that
if they wanted to avoid having their benefits suddenly
changed, that it might be desirable to have a union con-
tract. A couple of weeks after the June 19 meeting, Fox
testified that he spoke to Di!ler again and told him "that my
involvement with union activities was over." Diller re-
sponded, "that's good, because he's still watching me."
James Cooke, a currently employed anesthesia technician
in the surgery department, testified that he was active in
handing out union brochures and about 125 union authori-
zation cards on behalf of Hospital and Service Employees,
Local 399. Cooke testified that during the first week of July,
964
.OS ANG(FIS NEW IHOSPITAL.
while on his break period, he vw as in the employees lounge
reading the union brochures to employees Agnes Mademna,
Betty Green, and Barbara ()berg. when he was told h his
supervisor. Ora Randall, that he was not supposed to have
the union literature in the lounge. According to Cooke.
Randall stated that that was not really a breakroom and
that he (Cooke) was not on a scheduled break. When Cooke
continued reading the literature and discussing salaries and
benefits with the other employees. Randall returned to the
area and asked that he report to her office. Randall advised
Cooke that there was no such thing as a scheduled break,
but according to Cooke, who had worked at the hospital obr
a year and a half, he had customarily taken his break at
approximately that hour of the day ever since being em-
ployed. Randall repeated to Cooke that he was not sup-
posed to have literature in the lounge area and that he
could be replaLed by having the literature there, and that he
was not on a scheduled break.
Ora Randall. the operating room supervisor, acknowl-
edged that she had talked to Cooke concerning some litera-
ture that he was passing out to other employees and had
asked him to report to her in her office. Randall denied
threatening him with discharge, but contended that she had
discussed his work attitude and advised him that he must
give greater priority to the safety of the patients. Addition-
ally, Respondent's counsel elicited testimony from Randall
tending to show that the "lounge area" where Cooke was
involved in his discussion of the Union with other employ-
ees was not a lounge area hut, instead, was a part of the
operating room. Randall acknowledged, however. that
there is a sofa and two chairs located in the room: that
doctors, nurses, and technicians used the room as a place
for resting; that some employees eat their lunches and have
coffee or soft drinks there; and that it is a place where
normal conversation might frequently take place (see Resp.
Exh. 21).
Jacqueline Myles. who was employed by Respondent as
a secretary in the engineering department from April 1977
until October 20. 1978. testified that she attended the union
meeting at the Ramada Inn on June 19, where she was
given a union authorization card which she signed. Myles
testified that on the following day, between 9 and 10 a.m..
Diller had asked her how the meeting was last night and
then asked her "if anyone from my department had at-
tended and I gave him the names." Myles also testified that
she had requested a transfer to the X-ray department dur-
ing August or early September. Her transfer was accom-
plished on September 23. However. a few days later she was
advised by Ron David, supervisor of the radiology depart-
ment, that Zafrani had requested that she be returned to
engineering or that it would be necessary to terminate her.
According to David. he said that the secretary hired to take
Myles' place in the engineering department had left and it
would be necessary for Myles to return to engineering. Ac-
cording to Myles, she went immediately to Zafrani's office
where she reported to Zafrani why she did not want to
work in the engineering department. Zafrani told her. "that
Mr. Diller had been made aware of that transfer to X-ray,
and he was upset and told Mr. Zafrani they were going to
be laying off because of a low census." (Low census refers
to a low patient count.) During this conversation, according
to My les. Zafrani asked her. "hov, do ou feel about the
Union"
Theresa Siminski. secretary to Sol G(oldner, assistant ad-
ministrator in charge of fiscal affairs. testified that on June
19 Diller questioned her about the invitation to the meeting
at the Ramada Inn and asked if she knew ansthing about it.
or what other employees were going. I)iller also asked her
to let him know if she heard anything. On the following dav
Diller again questioned Siminski about her attendance at
the union meeting and asked if she had signed a union card.
Theresa Siminski testified that prior to the time of the meet-
ing on June 19 her boss. Goldner, questioned her concern-
ing the meeting and asked her as a personal favor not to go
Later Goldner suggested that she might go and attend the
meeting and then report back what had happened. Simninski
also testified that she was asked by Cy Zafrani. Janet Ford,
Margaret Stratton, and .orin French at various times dur-
ing the day on June 19 to cease her interest and activit on
behalf of the Unitn.
Goldner acknowledged having had conversaitions with
his secretary Theresa Siminski. on June 19, but denied that
he had instructed her not to attend the meeting or that he
had requested her to go and report back to management.
Margaret Stratton denied having told Siminski to cease or
curtail her union activities. Neither Diller. Zafrani. Ford. or
Lorin French were called by Respondent to testify.
Ruben Ibarra, who had formerly worked in surgery and
X-ray, but at the time with which we are here concerned
was employed as a cook in the kitchen, testified that on
June 19 at approximately 4:30 he left the hospital bh way of
the main entrance to attend the union meeting at the
Ramada Inn. He testified that as he was walking across the
street he saw Diller standing by his car, which was directl
in front of the hospital. parked in an area sometimes used
for emergencies, and that there were two or three other
people in his car. He said he passed within 4 or 5 feet of
Diller.
Both Kevin Siminski and Theresa Siminski testified that
they had seen Sol Goldner and Margaret Stratton with
some other people seated around a table in the bar at the
Ramada Inn on June 19 located only about 10 feet from a
doorway that looked out directly onto the lobby. Neither
Goldner nor Stratton denied that they were at the Ramada
Inn but indicated that this was a normal and usual thing to
do following the dav's work.
C. Allegatlions Regarding Changes in EniploL'ee Renefits
Respondent does not deny. and there is some written evi-
dence in the record clearly proving. that there were some
changes made in the employee benefit plans after June . It
was the May 30 memorandum to all employees advising
that the employees would no longer be paid for the first day
of sick-leave absence that first initiated the employee unrest
(see Resp. Exh. 12). A reading of the sick-leave policy as set
forth in the new employees' handbook that was distributed
in mid-July clearly reflects a change from the policy an-
nounced in the May 30 memo to all employees and also
reflects a change in the cash reimbursement policy for ex-
cessive in-the-hank sick leave accrued time. (Compare
96S
DE('ISIONS OF NATIONAL LABOR RELATIONS BOARD
pages 24 and 25 of the new employee policy---G.C. Exh.
3 with the policy as set fbrth in the old employee hand-
book at pages 17 and 18 G.('. Exh. 2.) Kevin Siminski
also testified that h- had made an inquiry at the personnel
office of some unidentified person regarding his "cashable"
excessive accrued sick leave time and was advised that that
policy was no longer in effect. Kevin Siminski also testi-
fied rather vaguely and with considerable uncertainty
that after the April insurance change (see G.C. Exh. 4). he
was not sure if the $200 deductible applied to Blue Cross or
Phoenix Mutual and that he had also heard rumors that
Respondent was paying for the employees' deductible. Re-
spondent does not seriously deny that some changes in em-
ployee benefits took place during the first 6 months of 1978,
but presented several pieces of written evidence indicating
that these changes were the result of hospital committee
action specifically set up in the fall of 1977 to accomplish
the task of revising their employee policies (see Resp. Exh.
3. 4. and 5).
Analysis and Conclusions
I am not convinced that the remarks of the supervisors
Cam, Stratton, or Siolek did in fact interfere with, restrain.
or coerce employee Fox in the exercise of any rights guar-
anteed him by Section 7 of the Act. I am convinced, not
only from the testimony of Fox, but also from the testi-
mony of Cam and Stratton. that Fox was in no danger from
them for his activities in circulating the petition to restore
the I day of sick leave. Their remarks were intended to
warn him that, in the event Diller found him engaged in
activities other than his own work, his job might then be in
jeopardy. Cam actually gave Fox permission to circulate
the petition during his "off-work time," and Stratton ex-
pressed her sympathy and interest in what the petition was
seeking to accomplish. After talking to each of the supervi-
sors and asking them to sign the petition, Fox continued in
his activity. Obviously their comments-regardless of their
precise choice of words-were not in any manner intimidat-
ing to Fox and did not interfere with his activity. I find the
remarks attributed to Cam, Stratton. and Siolek to have
been nothing more than friendly warnings to the effect that,
while they might be in sympathy and approve of what Fox
was doing, they were each warning him that some of the
higher level management people might disapprove of his
"time away from the job."
However, Jeffery Steadman was vague in his testimony
and obviously had great difficulty in recalling, with any
degree of accuracy, the meetings and conversations with
Fox during the first part of June. Steadman's statement to
Fox that "Diller would never stand for a union" would
certainly interfere with and restrain Fox's activities on be-
half of a union and thus violate his Section 7 rights. Also,
Diller's comment to Fox that he was "working too hard in
the matter" on the occasion when Fox was passing out
pamphlets regarding the union meeting would certainly
tend to interfere with and restrain Fox in his union activi-
ties. When Fox talked to Diller on June 19 and Diller told
him "that a union would-something to the effect that a
union would never survive in that hospital and that we were
fools and troublemakers for trying to bring one in" it was a
derogatory and repressive remark intended to interfere
with, restrain, and coerce an employee in the exercise of his
Section 7 rights. On June 19 the warning given to Fox by
Steadman in which Steadman stated "he felt sorry for me
IFox] because I was under a lot of pressure and that I had
to watch every move I made because Mr. Diller was watch-
ing me" would likewise interfere with, restrain, and coerce
an employee in the exercise of his Section 7 rights. As al-
ready indicated in reaching these results. I have credited
Fox's testimony over that of Steadman because Steadman
appeared to be very vague and uncertain as to the exact
time, place, or content of the conversations between he and
Fox. Although obviously a critical witness with several alle-
gations and considerable testimony placing blame at Dil-
ler's feet, he was not called to testify, nor was there any
explanation for his absence. Under these circumstances, it
is a fair inference that had he been called by Respondent,
his testimony would not have been favorable to Respon-
dent's cause. Colorflo Decorator Products, Inc., 228 NLRB
408 (1977): International Union, United Automobile, Aero-
space and Agricultural Implement Workers of' America
(UA W), Grodine Co. of America] v. N.L. RB., 459 F.2d
1329, 1335 38 (D.C. Cir. 1972). I shall find the derogatory
and repressive antunion comments as made by Steadman
and Diller. indicated hereinabove, to be violative of Section
8(a)( I1) of the Act.
The questioning of Jacqueline Myles by Diller the day
after the June 19 meeting in which he asked her if she had
attended the meeting and asked her for the names of those
employees in her department who attended the meeting
stand in the record undenied. Zafrani, the assistant hospital
administrator, was not called to testify and Myles testified
that she was asked by him how she felt about the Union.
Because Zafrani was not called to testify and there was no
explanation as to his absence, it is also reasonable to infer
that his testimony would not have been favorable to Re-
spondent. (See the Colorflo and U,4 W cases cited immedi-
ately heretofore.)'
Although there is no basis upon which to discredit the
testimony of Ruben Ibarra, I find it wholly inadequate to
prove an allegation of surveillance on the part of the hospi-
tal. Ibarra testified that he saw Diller standing beside his
car, in which there were two or three other people, located
directly in front of the hospital as he was on his way to the
union meeting at the Ramada Inn. Although it was not
Diller's usual parking place, he certainly had a perfect right
to be waiting beside his automobile in front of the hospital,
and I find nothing either sinister or antiunion in his pres-
ence there. The same is true regarding Goldner and Strat-
ton being in the Ramada Inn bar on June 19. They fre-
quently went there and had a perfect right to do so. I shall
recommend dismissal of any allegations of surveillance.
Although Ora Randall's testimony sought to establish the
"lounge" area as part and parcel of the operating room-
and thus not a permissible place to engage in union conver-
' The testimony of Myles may have been solicited to show some overtones
of antiunionism causing her transfer as secretary in the engineering depart-
ment to a secretarial position in the X-ray department to be canceled, how-
ever. this was not alleged as an unfair labor practice. Based on Myles' own
testimony. I am convinced that she was returned to the engineering depart-
ment only because her replacement in engineering was either unsatisfactory,
or had quit, and that she was needed in engineering.
966
LOS ANGELES NEW HOSPITAL
sations the evidence overwhelmingly refutes her testi-
mony. One does not regularly eat lunch, drink cokes and
coffee, and engage in social conversation in an operating
room. That these things were done in the "lounge" area
where James Cooke was "selling" the Union's cause is un-
denied. It may very well be that this particular "lounge"
area is not well suited for a lounge area because of its prox-
imity to the operating room. Nevertheless, it has been so
used by the employees for at least the past year. I credit
James Cooke's testimony and herewith find that Ora Ran-
dall did prohibit Cooke from discussing unionism on his
breaktime and did threaten that he "could be replaced for
having [union] literature there .... "
Goldner testified that as assistant administrator in charge
of fiscal affairs he is deeply involved in such matters as
budgeting, accounting, payroll, employee evaluations and
raises, and data processing, plus some line responsibility for
admitting and purchasing. He reports directly to the chair-
man of the board and attends weekly upper management
administrative meetings. He served as Respondent's repre-
sentative in the negotiations concerning the hospital's group
insurance plans. Theresa Siminski served as Goldner's per-
sonal and confidential secretary; she typed and filed all of
Goldner's correspondence, including all personnel-related
documents and proposed employee relations memoranda or
bulletins; she opened and received all of Goldner's mail and
frequently determined which mail need not come to his at-
tention; she had access to Goldner's files and to his office at
all times, including Goldner's notes taken at the manage-
ment meetings. Based on the record before me. including
the testimony of Theresa Siminski, I find that she was at all
times material hereto the confidential secretary to Mr. Sol
Goldner.
The Board has long held as a matter of policy rather
than statutory directive-that employees who "assist and
act in a confidential capacity to persons who formulate.
determine, and effectuate management policies in the field
of labor relations" are properly excluded from a bargaining
unit because of their status of "confidential employees."
The B. F. Goodrich Company, 115 NLRB 722, 724 (1956);
Ford Motor Company, 66 NLRB 1317, 1322 (1946). The
root of this exclusionary policy is the Board's recognition
that "management should not be required to handle labor
relations matters through employees who are represented
by the union with which the [employer] is required to deal
and who, in the performance of their duties, may obtain
advance information of the Company's position with regard
to contract negotiations, the disposition of grievances, or
other labor relations matters." The Hoover Companv, 55
NLRB 1321, 1323 (1944). However, the Board restricts only
those employees whose involvement in their employer's la-
bor relations policies is regular and sbustantial. In this in-
stance I find Theresa Siminski's duties concerning the hos-
pital's employee relations policies regular and substantial
and feel that she should be treated as an exluded confiden-
tial employee. (For examples of the types of employee in-
formation with which she was regularly concerned, see
Resp. Exhs. 14 through 20.)' It seems perfectly clear that, if
s See West Chemical Products, Inc.. 221 NLRB 250 (1975): Siemens Corpo-
raion., 224 NLRB 1579 (1976).
we were here concerned with a determination as to whether
or not Theresa Siminski should be included within an ap-
propriate bargaining unit, the answer would be no. And the
General Counsel in this case argues rather persuasively that
it is the Board's position that:
. .denying to such employees the right to be repre-
sented in the same unit with other employees. the
Board has never held . .. that they were excluded en-
tirely from the protection of the Act. On the contrary.
.. the Board earlier stated that the Act does not with-
hold from confidential employees "as a class' the right
to engage in concerted activities.
The quote was taken from Wheeling Electric Company. 182
NLRB 218, 220 (1970), which. however. was denied en-
forcement by the Fourth Circuit in 444 F.2d 783 (1971). In
reversing the Board in the Wheeling case, the court stated.
"On the basis of clear legislative intent we hold that 'super-
visors' within the context of the statute included confiden-
tial secretaries so as to leave their concerted activity for the
benefit of rank-and-file employees unprotected by the Act."
The court went on to say, "There is admittedly nothing in
the amended Act which explicitly indicates that confiden-
tial employees are to he excluded from its coverage. But
there is a Congressional expressed reason for that omission.
plus a clear expression of a legislative intent to exclude
them from the Act. That is enough." Also see Peerless of
America. Incorporated. 198 NLRB 982. 987 (1972), enforced
in relevant part. 484 F.2d 1108. 1112 (7th Cir. 1973).
In a case decided by the United States Supreme Court
after the Wheeling Electric Compatn' case* in a footnote at
page 284. the Court said. "The discussion of 'confidential
employees' in both the House and Conference Committee
reports, however, unmistakably refers to that term as de-
fined in the House bill, which was not limited just to those
in 'labor relations.' Thus. although Congress may have mis-
construed recent Board practice, it clearly thought that the
Act did not cover 'confidential employees' even under a broad
definition of that term." [Emphasis supplied.] Thus. it seems
clear that. even though the Bell Aerospace case was dealing
with the question as to whether or not "managerial emplo-
ees" were covered by the Act, nevertheless the Court has
definitively answered the question regarding confidential
employees. I find, therefore, that any and all of the con\er-
sations between Theresa Siminski and members of manage-
ment were not violative of the Act, because they occurred
between employees who are excluded from the Act. The
rationale for reaching such a decision was more fully set
forth by the court in the Wheeling Electric case, supra, when
it said:
A confidential secretary who plights her troth with the
union differs in form, but not in substance, from one
who holds a union card. Since she cannot formally join
the unit, there is nothing incongruous in holding that
she cannot "plight her troth" with the unit. Indeed, it
seems more consistent to say that if she cannot act in
concert by participating in the unit. the she cannot act
I N.L.R.B. v. Bell Aerospace Compranv, Division of Teron, Inc. 416 : S.
267 (1974).
967
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
in concert on an informal basis, or more accurately,
that if she does so, it will be without the protection of
the Act. Management is entitled to security of its con-
fidential information and may insist upon the loyalty
of those employees who have access to it. For this rea-
son, confidential employees cannot be granted the pro-
tection afforded ordinary employees under the Act.
1444 F.2d at 788.1
There is positive proof in the record (Resp. Exh. 3) that
Mr. Diller named a committee on November 3, 1977. to
review, study, and prepare a complete new employee hand-
book reflecting updated employee fringe benefits. (Also see
Resp. Exhs. 4 and 5). As various aspects of the updated
benefits program were approved, bulletins were issued re-
flecting the changes and employees were informed (see
Resp. Exhs. 6. 7, 8, 9. 10, 11 and G.C. Exh. 4). All of these
changes took place during the months between Novem-
ber-the date of the committee appointment to revise the
employee benefits and June 2, the date the employees first
acted in concert to protest a change in the sick leave policy.
It is true the sick leave policy, as set forth in the new em-
ployees' handbook, differed from that which was an-
nounced on May 30. However, I find this change to have
been the result of the employees' petition to management,
expressing their dissatisfaction with the loss of the first
day's sick leave and not because of any illegal intent or
motivation on the part of the Respondent to frustrate, inter-
fere with or discriminate against the employees because of
their concerted and/or union activity. Kevin Siminski's tes-
timony was much too indefinite and vague to be convincing
that the health insurance policies and benefits as set forth in
the new employees' handbook differed from the practices
that had been instituted prior to June I.
Based on the credited testimony of Sol Goldner, as sup-
ported by the written evidence, I herewith find that the
changes that were instituted by Respondent, as reflected by
their new employees' handbook issued on or about the mid-
die of July, were all undertaken prior to the advent of any
union activity and were made without illegal discriminatory
motivation. The General Counsel has failed to prove a dis-
criminatory motive.'
CON('I.USIONS OF L.AW
I. Respondent Los Angeles New Hospital, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Hospital and Service Employees Union. Local
399, SEIU, AFL-CIO. is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent, through the illegal activities of its Super-
visors Diller, Steadman, Randall, and Zafrani, has interro-
gated and threatened employees in a manner that has inter-
fered with, restrained, and coerced said employees in the
exercise of their rights as guaranteed by Section 7 of the
Act, and thereby violated Section 8(a)(l) of the Act.
4. Respondent has not, as alleged in the complaint, sur-
veilled or created the impression of surveillance of its em-
Industrial Brownhoist Division, American Hoist & Derrick Cornpaon, 214
NLRB 1016 (1974).
ployees, nor has it acted with an illegal discriminatory mo-
tive in instituting a number of changes in the employees'
fringe benefits.
\. IE EFI:F( IS ()F 1'11t UNFAIR I.ABO)R PRA(CII(E ULPON
( ()MMER('
The activities of Respondent as set forth in section IV,
above. occurring in connection with its business operations
as set forth in section I, above. have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States. and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of com-
merce.
VI. IH Ri)Y
Having found that Respondent has committed certain
unfair labor practices. I shall recommend that it be ordered
to cease and desist therefrom, and from like and related
unfair labor practices, and that it take the affirmative action
provided for in the recommended Order below, which I find
necessary to eflfectuate the policies of the Act.
Upon the foregoing findings of fact. conclusions of law,
and the entire record, and pursuant to Section IO(c) of the
Act. I herebh issue the following recommended:
ORD[)RK
The Respondent. Los Angeles New Hospital, Ios Ange-
les. California. its officers, agents. successors, and assigns.
shall:
1. ('ease and desist from:
(a) Questioning. threatening or in any manner making
derogatory and disparaging remarks regarding unions and/
or the employees' union activities which in any manner in-
terferes with, restrains, or coerces the employees in their
lawful right to engage in concerted, protected. and/or
union activity.
(b) Prohibiting employees from discussing. reading
union literature, or otherwise engaging in union, and/or
protected, concerted activity during their nonworking time
in nonpatient care areas.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Fake the following affirmative action which is deemed
necessary in order to effectuate the policies of the Act:
(a) Post at its place of business in Los Angeles. Califor-
nia, copies of the attached notice marked "Appendix."'
In the event ino exceptions are filed as provided bh Sec 102.46 f the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted bh the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived or all purposes.
' In the event that this Order is enflirced h a Judgnent of a nited States
Court of' Appeals, the words in tIhe notice reading "Posled B Order of the
National abor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of A,ppeals Enforcing an Order of he National
I.abor Relations Board."
968
I.OS AN(;I-.E-S NEW HOSPITAL
Copies of' said notice on forms provided h the Regional
[)irector for Region 31, after being dub signed h Respon-
dents' representative shall he posted hb it imnmediatelN upon
receipt thereof and hbe maintained bh it tor 60 consecutis e
days thereafter, in conspicuous places. including all places
where notices to emploeces are customariN posted. Reason-
ahble steps shall be taken hb Respondent to insure that said
notices are not altered defaced or covered b an' other
smateial.
(b} Notif' the Regional D)irector fr Reion 31. in rit-
ing-. kithinl 20 day, froll the date of this Order. what steps
Respondent has taken to comipl? herewith.