Manhattan Eye, Ear And Throat Hospital

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 113 (N.L.R.B. 1986)

MANHATTAN HOSPITAL 113
Manhattan Eye, Ear and Throat Hospital and Dis-
trict 1199 , Hospital and Health Care Employees
Union, Retail Wholesale and Department Store
Workers Union, AFL-CIO. Cases 2-CA-20501,
2-CA-20671, 2-CA-20590, and 2-CA-207 10
30 May 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 16 August 1985 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The General Counsel and the Charging Party
Union filed exceptions and supporting briefs and
the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,1 and
conclusions only to the extent consistent with this
Decision and Order.
The judge dismissed the complaint in its entirety,
finding that the Respondent did not violate Section
8(a)(1) as alleged and did not violate Section
8(a)(5) and (1) by withdrawing recognition from
the Union and thereafter unilaterally instituting
changes in employees' terms and conditions of em-
ployment. The judge dismissed the 8(a)(5) and (1)
allegations based on his finding that the Respond-
ent had a good-faith doubt of the Union's majority
status at the time of the withdrawal of recognition
and that it occurred in a context free of unfair
labor practices. The judge concluded that the Re-
spondent was thereafter privileged to change uni-
laterally employees' terms and conditions of em-
ployment. As explained below, we disagree with
the judge 's dismissal of the allegation that the Re-
spondent, through Supervisor James, violated Sec-
tion 8(a)(1) by soliciting employees to resign their
union membership, and further disagree with his
dismissal of the allegations that the Respondent
violated Section 8(a)(5) and (1) by withdrawing
recognition from the Union and thereafter unilater-
ally changing certain terms and conditions of em-
ployment. 2
' The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings The Board 's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products , 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir. 1951). We have carefully exanuned the record and
find no basis for reversing the findings.
2 While the judge dismissed all the 8 (aXl) allegations , exceptions were
filed only to his dismissal of the allegations that Supervisor James solicit-
ed employees to resign their union membership , that the Respondent un-
The record shows that the Union had represent-
ed a unit of approximately 101 registered nurses at
the Respondent's hospital since 1980. The parties'
most recent collective-bargaining agreement ex-
pired on 13 June 1984,3 and the Union commenced
an economic strike on 13 July. On 18 July Farideh
Ajdari, a registered nurse, filed a petition seeking
to decertify the Union. An election was scheduled
for 30 August, but it was postponed because of the
filing of the unfair labor practice charges. Subse-
quent to the postponement of the election, Ajdari
gathered new cards from 51 nurses which indicated
that they no longer wished to be represented by
the Union. Ajdari presented these cards to the Re-
spondent's director of nursing, Herbert, on 6 Sep-
tember and on the following day the Respondent
notified the Union that it was withdrawing recog-
nition based on the following factors: a majority of
nurses had crossed the picket line and returned to
work; the Respondent's belief that many, if not all,
nurses who did so had resigned from the Union; a
petition signed by a majority of the nurses request-
ing management to withdraw recognition. Around
12 September the Respondent implemented a wage
increase and pension, health, and insurance plans
and in October instituted a new grievance proce-
dure.
At the hearing, four of the Respondent's nurses
testified concerning the allegation that the Re-
spondent's admitted supervisor, James, had solicit-
ed employees' resignations from the Union. Thus,
nurse Soriano testified that James phoned her at
her residence in July and indicated that she was
calling on behalf of the Respondent's director of
nursing, Herbert, and director of education, Rudan,
to ask the Filipino nurses to return to work. Sor-
iano testified that James said, inter alia, "Before I
could go back to work, I have to write to Joann
Marshall4 resigning from District 1199 and then I
can join the New York State Nurses Association."
Soriano replied: "I'll just let you know when I feel
like going to work." Nurse Young testified that
James phoned her around 26 July and said that "a
lot of nurses had signed a petition that they were
resigning from the union because the union is not
assisting any more and it's not a professional
union." Young added that James "told me to write
to Joann Marshall if I wanted to resign also from
the union . . . [and] send it by certified mail."
lawfully distributed a union decertification fact sheet, and that the Re-
spondent unlawfully granted its nurses paid time off to attend a union de-
certification meeting . We note additionally that no exceptions were filed
to the judge's dismissal of the allegation that the Respondent violated
Sec. 8(a)(5) and ( 1) by restricting the access of union representatives to
the hospital
2 Hereafter, all dates refer to 1984
4 Marshall is an official of District 1199.
280 NLRB No. 11
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Young responded: "I'm just going to wait until the
strike is over and that's all." Young testified that
James phoned her again a week later and told her
that "almost all the nurses are resigning already
... that they were coming back to work and if
you want to be interested to come back, you can
come back any time . . . but you have to resign
first from the union before you can come back to
work." Young replied, "I'm not coming back to
work until the strike is over." Nurse Merka testi-
fied that James phoned her at home around 27 July
indicating that she "had been asked by Mr. Rudan
to call the Filipino nurses to return to work."
Merka responded that, "I could not answer you
right now. I don't understand what's going on."
James called Merka a second time about a week
later. Merka testified that James remarked that
"you're still not back to work" and told Merka to
"write to Ms. Joann Marshall." Merka testified that
James said that "if I need some help to write, she
could help me to write the letter that I will no
longer be a member of 1199." Merka said that she
and James did not discuss the possibility that the
Union might try to fine or punish workers if they
crossed the picket line. Nurse Simmons testified
that she called the hospital toward the end of the
strike because she wanted to know the procedure
for returning to work. Simmons spoke with James
who told her "that I should write a letter to Joann
Marshall . . . that I resign from 1199 and send it
certified letter." James gave Simmons the format
for the letter resigning her membership . Simmons
also testified that James did not mention anything
about being fined if she did not resign from the
Union. Simmons said she did not remember who
raised the topic of resignation.
The judge found that "to the extent that James'
denials conflict with the testimony of Soriano,
Merka, and Young, I tend to credit the testimony
of the nurses because I found many of James' re-
sponses to questions evasive."s In those other in-
stances where the judge did not specifically credit
the employees' testimony over that of James, he
found either that "their credibility seemed evenly
balanced or the point itself was immaterial." Thus,
at no point was James herself affirmatively credited
by the judge. Nevertheless, as noted above, the
judge concluded that the Respondent, through
James, had not violated Section 8(a)(1) by solicit-
ing resignations from the Union. He found the tes-
timony insufficient to establish this allegation in
several respects.
Preliminarily , the judge concluded that the Gen-
eral Counsel failed "to establish the precise mean-
s James ' testimony is detailed in the judge's decision
ing of James' remarks in the conversations where
resignation was discussed ." He found it unclear
whether James "was pushing for defection from
the Union or simply explaining that, in order for a
nurse to cross the picket line and return to work
without becoming subject to a union fine, the pro-
cedure she had to follow was to resign from the
Union before coming back to work." The judge
also concluded, erroneously, that Soriano and all
the other nurses who testified were all concerned
with incurring a fine if they crossed the picket line.
In this regard we note first that neither Merka,
Simmons, Young, nor Soriano testified that James'
remarks concerning resignation from the Union oc-
curred in the context of a discussion of the proce-
dure for returning to work without incurring a
union fine. In fact, Merka and Simmons each testi-
fied that the possibility of fines was not discussed
in their conversation with James. The testimony of
Young and Soriano is devoid of any indication that
James' remarks were raised in this context. More-
over, James herself denied having discussed the
topic of resignation with Soriano. We further note
that, contrary to the judge's assertions, there is no
evidence that Soriano and all the other nurses who
testified were concerned with incurring a fine if
they crossed the picket line. In light of the nurses'
clear testimony regarding James' statements to the
effect that they had to resign their union member-
ship before returning to work and the absence of
any testimony that James' remarks occurred in the
context of a discussion about the avoidance of
union fines, there is no basis for concluding that
James merely was explaining the procedure for
avoiding union fines.6
The judge additionally concluded that the Gen-
eral Counsel failed to establish the existence of co-
ercion by a preponderance of the evidence. In this
regard, we note that an employer does not violate
the Act merely by providing employees with infor-
mation on how to resign from the union "as long
as the employer makes no attempt to ascertain
whether employees will avail themselves of this
right nor offers any assistance, or otherwise creates
a situation where employees would tend to feel
peril in refraining from such revocation." R. L.
White Co., 262 NLRB 575, 576 (1982). Contrary to
the judge, we find that James' conversations with
the employees went beyond the mere providing of
6 The judge characterized Sorumo's testimony in this manner : "I detect
no uncertainty [in Soriano's testimony] whatsoever: she testified that
James told her she 'could ' write to Marshall and 'could not' come back
to work without having done so." And , the judge described Young's tes-
timony in a similar fashion. "Young's testimony was a coherent, consist-
ent and credible account to the effect that James called her and told her
that other nurses were returning to work and that she could return if she
quit the Union "
MANHATTAN HOSPITAL
information and constituted unlawful solicitation of
resignation from the Union. Thus, as noted above,
it is clear from the testimony here that James solic-
ited resignations from the Union and conditioned
return to work on resignation from the Union. Ad-
ditionally, James evidenced a continuing interest in
knowing whether or not the nurses intended to
resign and return to work and in some instances of-
fered assistance. James explicitly stated that she
was calling on behalf of her superiors. James there-
by created a situation wherein employees would
tend to feel imperiled in maintaining their member-
ship. Erickson's Sentry of Bend, 273 NLRB 63
(1984). In so doing, James' conduct, aimed at caus-
ing disaffection from the Union, clearly tended to
interfere with the employees' free exercise of Sec-
tion 7 rights and was unlawful interference, con-
trary to the judge, regardless of whether there is
evidence that James actually achieved a coercive
effect. Amason, Inc., 269 NLRB 750 fn. 2 (1984),
enfd. mem. 758 F.2d 648 (4th Cir. 1985). Thus,
contrary to the judge, we find that James' conduct
was not merely "ministerial" assistance proffered to
the nurses7 and that the Respondent, through
James ' conduct, violated the Act.
Having found this violation, we further find that
the Respondent's asserted good-faith doubt of the
Union's continued majority was not raised in a
context free of unfair labor practices of the type
aimed at causing disaffection from the Union.
Therefore, the withdrawal of recognition, as well
as the Respondent's later unilateral changes in em-
ployees' terms and conditions of employment, vio-
lated Section 8(a)(5) and (1). See Craftool Mfg. Co.,
229 NLRB 634 (1977), and cases cited therein. We
also shall provide an Order which remedies the
violations found herein. 8
7 The judge also noted that only 4 of the approximately 100 nurses in
the unit testified concerning James' remarks. We note that, although
James may have confined her unlawful conduct to only four employees,
this does not make the conduct any less unlawful Nor does it satisfy the
Respondent 's burden of establishing that its asserted objective consider-
ations arose in an atmosphere free from coercion in support of its affirma-
tive defense of good-faith doubt of the Union's majority status . We note
also in this regard that the judge apparently did not consider the testimo-
ny of nurse Parvan Valentina which was proffered in support of another
allegation Valentini testified that she called James on 19 August and
asked about the strike situation . Valentini testified that James told her
that "if you wish to come back to work, you have to resign from the
Union."
8 In ordering the Respondent to make whole the employees for losses
suffered by reason of its implementing new pension , health, and insurance
plans, we note that the record is unclear whether the new plans were
substitutes for preexisting benefit plans and whether any losses were in-
curred by this conduct We shall order that the employees be made
whole for such losses, if any, they may have incurred , and that the Re-
spondent make the contributions to benefit trust funds, if any, which
would have been made but for the Respondent's unilateral institution of
pension , health , and insurance plans. Because the provisions of employee
benefit fund agreements are variable and complex, the Board does not
provide at the adjudicatory stage of a proceeding for the addition of in-
terest at a fixed rate on unlawfully withheld payments. We leave to the
115
ORDER
The National Labor Relations Board orders that
the Respondent, Manhattan Eye, Ear and Throat
Hospital, New York, New York, its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from District 1199,
Hospital and Health Care Employees Union,
Retail, Wholesale and Department Store Workers
Union, AFL-CIO, as the exclusive collective-bar-
gaining representative of its registered nurses.
(b) Unilaterally instituting wage increases, pen-
sion, health, and insurance plans, and a new griev-
ance procedure.
(c) Unlawfully encouraging or soliciting employ-
ees to resign from the Union.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement:
All full-time and regular part-time registered
nurses employed by Manhattan Eye, Ear and
Throat Hospital at its facility located at 210
East 64th Street, New York, New York, but
excluding all other employees, guards and su-
pervisors as defined in the Act.
(b) On request, restore the terms and conditions
of employment in existence prior to the unlawful
unilateral changes and make whole the employees
for any losses suffered by reason of the unlawful
unilateral changes and make contributions to the
benefit trust funds, if any, which would have been
made but for the Respondent's unilateral institution
of the pension, health, and insurance plans.
(c) Post at its facility in New York, New York,
copies of the attached notice marked "Appendix."9
compliance stage the question of whether the Respondent must pay any
additional amounts into benefit funds in order to satisfy our "make
whole" remedy These additional amounts may be determined , depending
on the circumstances of each case , by reference to provisions in the docu-
ments governing the funds at issue and, where there are no governing
provisions , to evidence of any loss directly attributable to the unlawful
withholding action, which might include the loss of return on investment
of the portion of funds withheld, additional administrative costs , etc., but
not collateral losses Merryweather Optical Co., 240 NLRB 1213 (1979).
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the allegations not
specifically found herein are dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT withdraw recognition from Dis-
trict 1199, Hospital and Health Care Employees
Union, Retail, Wholesale and Department Store
Workers Union, AFL-CIO as the exclusive collec-
tive-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time registered
nurses employed by Manhattan Eye, Ear and
Throat Hospital at its facility located at 210
East 64th Street, New York, New York, but
excluding all other employees, guards and su-
pervisors as defined in the Act.
WE WILL NOT unilaterally institute wage in-
creases, pension , health , and insurance plans, and a
new grievance procedure.
WE WILL NOT unlawfully encourage or solicit
you to resign from the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit.
WE WILL, on request, restore the terms and con-
ditions of employment in existence prior to our un-
lawful unilateral changes, and WE WILL make you
whole for any losses you may have suffered by
reason of the unlawful unilateral changes and WE
WILL make the contributions to the benefit trust
funds, if any, which would have been made but for
our unilateral institution of pension, health, and in-
surance plans.
MANHATTAN EYE, EAR AND THROAT
HOSPITAL
Judy Minette Sandier, Esq., for the General Counsel.
Francis Carling and Nancy G. Milburn, Esqs., of New
York, New York, for the Respondent.
Richard Betheil, Esq., of New York, New York, for the
Union.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was heard by me in New York City 4-8 March
1985. The frequently amended consolidated complaint is
founded on charges filed on various dates between 2
August and 6 December 1984 by District 1199, Hospital
and Health Care Employees Union, Retail, Wholesale
and Department Store Workers Union, AFL-CIO (the
Union). Some 20 violations of Section 8(a)(1) and (5) of
the National Labor Relations Act (the Act) are charged
against Manhattan Eye, Ear and Throat Hospital, Re-
spondent , consisting in the main of prompting and assist-
ing employees to abandon and decertify the Union, ex-
clusion of union representatives from access to the prem-
ises and to unit employees, and refusal to discuss and ne-
gotiate certain changes with the Union. Respondent
denies commission of most of the acts alleged as wrong-
doing and statutory violation. Some of the alleged con-
duct is admitted subject to affirmative defenses, which I
have discussed in connection with the allegations to
which they pertain.
The parties were afforded full opportunity to be heard,
to call , to examine and cross-examine witnesses, and to
introduce relevant evidence. Posthearing briefs have
been filed on behalf of the General Counsel and on
behalf of Respondent.
On the entire record, including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed by the General Counsel and Respondent, I
make the following
MANHATTAN HOSPITAL 117
FINDINGS OF FACT
1. JURISDICTION
There is no issue about jurisdiction, the pertinent facts
with respect thereto having been admitted in Respond-
ent's answer. Respondent is a New York corporation
which operates a hospital at 210 East 64th Street, New
York City. It grosses more than $250,000 annually and
receives products valued in excess of $50,000 annually
from points outside New York State. Respondent admits
and I accordingly find that Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and a health care institution
within the meaning of Section 2(14) of the Act, and that
the Union is now and has been , at all times material in
this case, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background
All the registered nurses employed by Respondent
constitute an appropriate collective-bargaining unit, for
which Respondent has recognized the Union as the ex-
clusive collective-bargaining representative under collec-
tive-bargaining agreements since 1980.1
On 13 June 1984,2 the most recent such agreement ex-
pired without renewal and the Union commenced an
economic strike. The testimony establishes that the most
intractable issues of the strike, such as the Union's
demand for every second weekend off, were matters of
concern to ancillary service workers, but not to the reg-
istered nurses. The nurses were upset that they were
compelled to lose work for that reason and matters were
not helped by the Union's insistence that the nurses not
return to work until Respondent and the Union had
signed a contract, even if the Union reached an agree-
ment with the League of Voluntary Hospitals. In fact,
the picket line continued in front of Respondent's hospi-
tal after the Union reached agreement with the League
in late August or early September and Respondent, as of
the date of the hearing, still had not been notified that
the strike was officially ended. Thus, nurses could not
return to work, even though agreement between the
Union and the League seemed to have been reached, be-
cause the picket line continued in front of the hospital. In
the few negotiating sessions which had been held prior
to the commencement of the strike , nurses' concerns had
received minimal attention.
On 18 July, Farideh Ajdari, a registered nurse , filed a
petition to decertify the Union. A Stipulation for Certifi-
cation on Consent Election was approved by the Region
on 1 August. The cards requesting decertification, which
the nurses signed, were typed by a secretary employed
by the hospital on cards that came from the hospital sta-
1 The matters narrated without evidentiary comment are those facts
found by me on the basis of admissions in the answer, data contained in
the exhibits, stipulations between or concessions by counsel, undisputed
or uncontradicted testimony, and, in instances where conflicts in the testi-
mony did not warrant discussion, the testimony which I have credited
9 All dates hereinafter mentioned are in 1984 except as otherwise
stated
tionery stock. The election was scheduled for 30 August,
but has never been held because of the pendency of the
unfair labor practice charges filed by the Union against
Respondent, which are the subject of the instant pro-
ceedings.
Both the General Counsel and Respondent deem the
strike to have ended on 29 August, although the Union
has never officially declared an end to the strike. Eleanor
Herbert, director of nursing, testified that she considered
the strike over as of 29 August and counsel for the Gen-
eral Counsel, in her posthearing brief, cites Herbert's tes-
timony in support of an assertion to that effect. The
picket line remained.
On 6 September, Ajdari delivered a letter dated that
date to Eleanor Herbert, director of nursing, which read
as follows:
Dear Mrs. Herbert:
Because a majority of the registered nurses at this
hospital no longer want to be represented by Dis-
trict 1199 as our bargaining agent , I'm submitting
the enclosed signed index cards which state that
he/she no longer wants District 1199 as his/her bar-
gaining agent at Manhattan Eye, Ear & Throat
Hospital.
Therefore, I ask management of this hospital not
to negotiate anymore with District 1199 as our bar-
gaining agent.
Yours very respectfully,
Farideh Ajdari, RN
On 7 September Respondent withdrew recognition
from the Union, contending, as it does in these proceed-
ings , that it had a good-faith doubt whether the Union
represented a majority of the nurses in the unit. It fol-
lowed suit on 10 October by canceling authorization pre-
viously granted for union-membership meetings on the
premises scheduled for the three shifts on 16 October be-
cause the RN division was listed in the meeting flyer
along with the Guild Division and the Hospital Division,
which the Union continued to represent. Union repre-
sentatives who persisted in remaining on the premises on
16 October were directed to leave the premises and were
arrested when they refused. New rules were promulgat-
ed limiting access to the premises.
Issues are thus presented whether Respondent unlaw-
fully encouraged and assisted a decertification move-
ment, whether it withdrew recognition of the Union on
the basis of a bona fide belief that the Union no longer
represented a majority of the nurses in the bargaining
unit, and whether its withdrawal of recognition was
tainted by commission of unfair labor practices that com-
promised the Union's ability to represent the nurses.
B. Supervisory Status of Certain Personnel
Respondent admits in its answers that during pertinent
times Carol Handfus was acting director of human re-
sources; Eufemia James was a per diem relief supervisor;
Fransuhi Partikoglu (also known in the hospital as
Frances Partik) was head nurse; Bercuhi Oksucoglu (also
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known in the hospital as Suzy Oksus) was an assistant
head nurse; and Catherine McDonnell was a supervisor.
McDonnell testified that she had been acting as the
evening supervisor since 19 February 1984 . James ap-
pears, from testimony in the record , to have worked all
shifts . Respondent admits that they were supervisors
within the meaning of Section 2(11) of the Act but
denies that James , Partikoglu, McDonnell, or Oksucoglu
were acting in their roles as supervisors or on the Hospi-
tal's behalf in connection with any conduct alleged in the
complaint. This denial is of little avail to Respondent, for
it is well settled that an employer is bound by the acts
and statements of his supervisors, whether specifically
authorized or not, and therefore is responsible for unfair
labor practices committed by low-level supervisors.
Southern Stevedoring Co., 230 NLRB 609, 615 (1977);
Collectramatic, Inc., 267 NLRB 866, 871 (1983).
The facts of the case, as I have found them, show the
communication by these persons to at least several nurses
of a "sufficiently uniform" message, as well as a relation-
ship to management "sufficiently intimate to give an au-
thoritative gloss to their statements and to cause employ-
ees to reasonably believe that they were accurately re-
flecting operative conditions and personnel policy." Li-
ability under the Act therefore exists even without an
actual determination of their supervisory status. See
Crawford Container, 234 NLRB 851, 859 (1978). In this
connection, it is to be noted that Section 2(13) of the Act
expressly provides that in determining whether they
acted as Respondent's "agents," to render Respondent
responsible for their acts, "the question of whether the
specific acts performed were actually authorized or sub-
sequently ratified shall not be controlling." See Collectra-
matic, Inc., supra.
I consider Respondent's reliance on Times-Herald, Inc.,
253 NLRB 524 (1980), to be misplaced . In that case, it
was observed that in order to find liability for communi-
cations such as those in the instant case , there must be
some evidence that the employer has "encouraged, au-
thorized, or ratified the conduct or that the supervisor
acted in such a manner as to lead the employees to rea-
sonably believe that he was acting on behalf of manage-
ment."
However, the situation under discussion in Times-
Herald involved an employee who made an inquiry of
the employer respecting decertification procedure but
who was both a supervisor and a member of the unit.
Because he was a member of the unit, the question of
whether the respondent was responsible for his antiunion
conduct could not be resolved in the absence of evidence
of encouragement and authorization . That duality of
status does not exist in the present case.
C. Catherine McDonnell
The complaint alleges, and Respondent denies, that
about 21 July Respondent, acting through McDonnell,
urged and encouraged an employee in the unit to sign a
card to decertify the Union . In addition to its denial, Re-
spondent asserts certain affirmative defenses.
The first of these is that the conduct alleged is protect-
ed by Section 8 (c) of the Act. The second is that it is
protected by the first amendment to the United States
Constitution. Section 8(c) of the Act provides simply
that expression and dissemination of opinion shall not be
deemed to be, or to be evidence of, an unfair labor prac-
tice under the Act "if such expression contains no threat
of reprisal or force or promise of benefit." An analysis of
the evidence relating to McDonnell 's actions must there-
fore focus on the presence or absence of any coercion or
promise of benefit.
Respondent also alleged as an affirmative defense that
the claim embodied in the allegation was "before the Re-
gional Director" when the original consolidated com-
plaint was issued on 28 November, but it was not includ-
ed. From this it is argued that its inclusion in the order
amending consolidated complaint dated 29 January 1985
is a nullity because the period of the statute of limitations
had run . Respondent arrives at this result by asserting
that "the Regional Director lacked authority to revive a
dismissed claim outside of the period of statute of limita-
tions prescribed in the Act."This is coupled with an af-
firmative defense to the effect that the claim was waived
because the Charging Party did not appeal the Regional
Director 's dismissal of the claim on 28 November. For
good measure , Respondent asserts that the Union is es-
topped by its failure to appeal "and by the doctrine of
laches." These two affirmative defenses (labeled the
Fourth Defense and the Fifth Defense) are dismissed.
The failure of the Regional Director initially to include a
charge in a complaint does not constitute a dismissal of
the charge . Consequently , its inclusion by amendment of
the complaint at a later date does not constitute "reviv-
al" of a charge already found insupportable in evidence
or law.
In a Sixth Defense, Respondent asserts that the charge
filed in Case 2-CA-20501 did not give fair notice of the
claim contained in paragraph 13(b) and the claim is
therefore barred by the statute of limitations prescribed
in the Act. Counsel for Respondent advances this de-
fense though the charge recites that Respondent "urged
and encouraged an employee . . . to sign a card to de-
certify the Union" and the charge sets forth that the Em-
ployer violated Section 8(a)(1) and (3) by discriminating
in regard to terms and conditions of employment "in
order to discourage membership in District 1199 and has
taken other actions, including but not limited to the initi-
ation, direction, coordination and implementation of a
campaign to decertify District 1199 . . . and otherwise
acted to undercut District 1199 's position as bargaining
representative." The allegation contained in the amended
consolidated complaint and the original charge are
couched in practically identical language . The relation-
ship between the two is explicit . Accordingly, the Sixth
Defense is dismissed.
On the merits , the case against McDonnell rested on
the testimony of Soledad Soriano, a staff nurse on the
evening shift. She testified that McDonnell, the evening
supervisor, telephoned her on the evening of 21 July.
Both live in the nurses ' residence quarters at 210 East
64th Street ; Soriano is across the corridor from McDon-
nell and one door down. They do not socialize, though
they are on normally cordial terms. McDomiell asked
Soriano if she was staying in the Union; if not, she had a
MANHATTAN HOSPITAL
card for her to sign . Soriano responded that she would
do whatever she thought was best. About 10 o'clock the
next morning, McDonnell knocked on her door and told
her to sign a card, which she had with her. Soriano re-
fused, saying she was not signing anything, to which
McDonnell responded, "You know the score." Soriano
then said she would think it over, whereupon McDon-
nell said, "You have only until 10 o'clock to think it
over." McDonnell gave Soriano her paycheck and left.
According to McDonnell, she was asked by Brolli
Narciso, a staff nurse who was working with Ajdari on
the decertification drive and had accompanied Ajdari on
a visit to the NLRB office in New York City on 18 July,
to let Soriano know, if she saw her, that Narciso and
Ajdari were stationed at the Barbizon Hotel with decer-
tification cards. McDonnell opted to call Soriano, rather
than leave conveyance of the message to chance. Her
visit the following morning was solely for the purpose of
delivering Soriano's paycheck. The card she asked Sor-
iano to sign was for the paycheck, "which is a custom
when you give a paycheck."
The testimony of neither of these witnesses is free
from doubt, not only because their accounts directly
contradict each other with respect to matters pertinent to
the issues of the case, but because subsidiary details of
their testimony are burdened with doubt. For example,
in McDonnell's case, it appears that the invariable prac-
tice at the hospital was to deliver nurses' paychecks at
the nursing office or on the hospital floor, never in the
residence, and that the nurses normally signed for receipt
of checks on a yellow paper or pad, not on white index
cards. Moreover, according to McDonnell, Soriano with-
dew into her room without signing anything, yet she ap-
pears to have been permitted to retain her paycheck
without accounting complications. By her own testimo-
ny, McDonnell also seems to have been willing to
become far more involved than requested. McDonnell
testified that Narciso asked her to talk to Soriano be-
cause Narciso and Soriano were not on good terms
(Narciso lived on the same floor at the residence.)
Narciso also asked McDonnell to call a nurse named
Matthews, whom she was having trouble reaching.
McDonnell went to the trouble of telephoning Soriano,
rather than waiting for a chance encounter, and under-
took to call Matthews even though that task was expect-
ed to be troublesome.
However, the difficulties with Soriano's testimony, on
which the General Counsel relies, are much more grave.
She never read the card which McDonnell supposedly
asked her to sign. The remarks she attributes to McDon-
nell sound ominous, but Soriano never testified that
McDonnell referred to the card as a decertification card.
The General Counsel contends that Soriano reasonably
inferred that it was a decertification card because of a
telephone conversation that Soriano claims to have had
with Matthews. Soriano testified that Matthews called
her and asked if she had been asked "to sign a card" and
Matthews told her that McDonnell had just called her to
go to the hospital to sign a card, which would then
permit her to go back to work "and whatever the union
is demanding they will give more than what-the rate is
being given."
119
This testimony provides no direct or specific identifi-
cation of the nature of the card which McDonnell is sup-
posed to have asked Soriano to sign. Further difficulty is
presented by Matthews' testimony, which made it
clear-emphatically-that her conversation with
McDonnell had not at all been as described by Soriano
and that Soriano had no basis for quoting it because Mat-
thews never told Soriano about it. Matthews testified
that in her conversation with McDonnell, McDonnell
only asked her to see Narciso at the Barbizon. Matthews
testified that that was the entire conversation; that
McDonnell never told her that if she wanted to sign a
card to get rid of the Union she should come to see
McDonnell; that McDonnell never mentioned anything
like that or anything about a card, and never said any-
thing about decertifying the Union. Matthews further
testified that she never spoke to Soriano about her con-
versation with McDonnell, never told Soriano that
McDonnell had said she had a card for Matthews to
sign , and never told Soriano that McDonnell said she
should get over to the hospital if she wanted to sign it.
She thus gives the lie to Soriano quite directly.
At most, McDonnell is shown to have relayed mes-
sages from Narciso. The General Counsel seeks to prove
that McDonnell attempted to coerce Soriano into signing
a decertification card without evidence that the card
which Soriano was asked to sign was a decertification
card. Soriano's testimony is sharply disputed by testimo-
ny of witnesses with equal or better credibility. Aside
from that, what little is proved regarding McDonnell's
actions seems not to establish conduct of an illegal
nature.
It adds up to a case considerably short of a preponder-
ance of the evidence. Accordingly, I do not find that
McDonnell unlawfully solicited Soriano's signature on a
decertification card. It is therefore unnecessary to con-
sider the constitutional defense raised by the Third De-
fense, which is better raised in the United States district
court in any event. The Second Defense, based on Sec-
tion 8(c) of the Act, is dismissed for the reason that there
is no evidence that McDonnell's activity insofar as it has
been proven, consisted of "[T]he expressing of any
views, argument or opinion, or the dissemination there-
of." The defense is therefore inapplicable. The burden
was on Respondent to establish that McDonnell's actions
consisted of expression of opinion, which Respondent
failed to do.
D. Partikoglu and Oksucoglu
It is contended that about 11 July, during a dinner
conversation, Fransuhi Partikoglu (Partik) and Bercuhi
Oksucoglu (Oksus) urged Monica Mitchell, a staff nurse,
to resign from the Union, to affiliate with the New York
State Nurses Association, and to circulate a decertifica-
tion petition. Mitchell testified that she entered a restau-
rant, saw them sitting there, asked if they were going to
be there long, was invited to join them, and had dinner
with them. They spent 45 minutes to 1 hour together.
According to Mitchell's testimony, after general con-
versation the discussion drifted into the subject of the
strike, which was set for 13 July. Partik commented that
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she thought Mitchell was "too classy" to be in the Union
and that the nurses, being a separate group, should be in
a more professional union than District 1199 . She "sug-
gested that . . . I . . . pass a slip around to other nurses
saying that you want to be out of the union." Mitchell
responded that the Union had obtained benefits for the
nurses, she liked it and would not be interested in passing
a slip around. Oksus said, "What about the New York
State Nurses Association." Mitchell answered that it was
not as powerful as District 1199 and was management-
oriented. The rest of the conversation pertained to mat-
ters not connected with the Union and "there was noth-
ing else said about it. I said I wasn't interested in doing it
and they didn't make any other comment either way, it
was just-after that, it was just table conversation."
At the time of this conversation, Mitchell was a
member of District 1199's negotiating committee, a cir-
cumstance known to both Partik and Oksus and which,
in fact, was mentioned in the course of the conversation.
Counsel for Respondent argues that this makes it implau-
sible that Partik and Oksus would have attempted to
enlist Mitchell in a decertification movement and I agree.
Nevertheless, I credit Mitchell's account of the conversa-
tion. The question is whether it supports the General
Counsel's allegation of violation of Section 8(a)(1) of the
Act. The nature of the suggestion being made is very
clear but it is not clear that there existed any element of
coercion. There certainly was no explicit coercion and
none appears to derive from the surrounding circum-
stances.
The conversation appears to have been good humored
and Respondent argues that the remark about Mitchell
being "too classy" to be in the Union was made in jest.
Reading it in cold print did not reduce me to hysteria
and there is no evidence that Mitchell was greatly
amused by it. Remarks made in jest in the workplace
have been held to be in violation of Section 8(a)(1) of the
Act when they tended to be of a coercive nature. See
Ethyl Corp., 231 NLRB 431, 434 (1977). In the present
case, we are dealing with a conversation among persons
who, according to Mitchell's own testimony, have
known each other for 12 years. Mitchell rejected Partik's
suggestion immediately and reaffirmed her support of the
union discomfort. Unlike Soriano, she did not feel the
need to ask for time to think. Furthermore, Mitchell did
not testify that the matter of the strike or the Union was
first raised by Partik or Oksus; she was uncertain who
raised the subject. The conversation was mostly social,
having opened with inquiries by Partik and Oksus about
Mitchell's children. Mitchell mentioned her union activi-
ties-she was on the negotiating and labor-management
committees-and that her concern was having to go out
on strike with the cleaning people and the other service
workers. She thus practically invited the comments at-
tributed to Partik. The word "decertification" was never
used; though Mitchell had signed an affidavit for a Board
investigator in which the word was used, she testified
that it was not used during the conversation with Partik
and Oksus. Asked if Partik or Oksus threatened her,
Mitchell testified, "In no way."
Consideration of the actual statements made during
Mitchell's conversation with Partik and Oksus and of the
circumstances in which they were made, taking into ac-
count the known backgrounds of all the parties to it,
leads me to conclude that the remarks of Partik and
Oksus did not tend to have a coercive effect. The re-
marks attributed by Mitchell to Partik are of the kind
which fall within the protection of the United States
Constitution and the provisions of Section 8(c) of the
Act, as contended by Respondent in the Second and
Third Defenses set forth in its answer. Though my find-
ing in this respect precludes holding Respondent respon-
sible for the remarks, I note also that the evidence re-
specting the dinner conversation leads me to conclude
that Partik was not, at the time, speaking on behalf of
management . The incident involved nothing more than
expression of her personal opinion and was so under-
stood by Mitchell at the time.
The allegation was not proved by a preponderance of
the evidence and there was no proof of the essential ele-
ment of coercion. I emphasize this point because Partik
was not called by Respondent to testify regarding her re-
marks and no explanation for her absence was furnished.
Moreover, the credibility of Oksus was undermined by
the fragmentary nature of her recollection and by inher-
ent contradictions. She testified on direct examination
that it was Mitchell who raised the subject of the Union,
by asserting that she felt sorry for the nurses because
they could not resign from the Union without losing
benefits. Despite the improbability of such a statement
coming from Mitchell, Oksus also asserted that only
Mitchell could have raised the subject because "I didn't
know there was such a thing that they can resign or get
out of the Union. I didn't know at all." Later, she testi-
fied that she did not recall who made the statement that
it was possible for somebody to resign from the Union
and then, on being pressed, admitted that she herself
made the statement. This lack of credibility does not,
however, supply to the General Counsel's presentation
the evidence necessary to support the allegations of the
complaint. 3
E. Violations of Section 8(a)(1) by Eufemia James
Eufemia James is a part-time clinical nursing supervi-
sor who also had separate private business interests and
worked at a veterans hospital . It is contended that she
violated the Act in the course of conversations with sev-
eral nurses : that on 23 July she urged a nurse to quit the
Union and affiliate with the New York State Nurses As-
sociation; that on 26 July she urged an employee to sign
a card to decertify the Union; that on 27 July she urged
an employee to quit the Union and offered to help the
employee draft a letter of resignation; that on 9 August
she encouraged an employee to resign from the Union
and instructed the employee in the procedure; and that
sometime during the last week of August she told an em-
8 I reject Respondent's theory , set forth in its posthearmg brief, that
because , according to Oksus, Mitchell had never before joined Partik and
Oksus for a meal , her presence on this occasion must have been for the
deliberate purpose of eliciting statements from them which would be vio-
lative of the Act Tins suggestion of something in the nature of entrap-
ment is sheer speculation based entirely on Oksus' testimony that Mitch-
ell first brought up the subject of the Union
MANHATTAN HOSPITAL
ployee on the telephone that to return to work she
would have to send District 1199 a letter resigning from
the Union, and offered to help write the letter. The case
against James rests on the testimony of Soledad Soriano,
Alicia Young, Rosie Merka, and Patricia Simmons.
1. Soledad Soriano
Soriano testified that James called her on the residence
telephone several days after McDonnell spoke to her.
McDonnell had spoken to her on the telephone on 21
July and had seen her the following morning, which
fixes the date of the telephone call from James at 23
July. Soriano did not recall the time of day at which she
received the call, but recounted the conversation as fol-
lows:
She said she was calling all the Filipino nurses to
go back to work because she was asked by Mrs.
Herbert and Mrs. Rudan-Mr. Rudan. And if I
want to go back to work, I should contact Mrs.
Herbert and if-before I could go back to work I
have to write to JoAnn Marshall resigning from
District 1199 and then I can join the New York
State Nurses Association. . . And she finally
stated that if I don't know what to do, I can contact
Ms. Narciso and she will show me what to do... .
So I said to her, "I'll just let you know when I feel
like going to work."
James flatly denied having discussed the strike or res-
ignation from the Union with Soriano. She was emphat-
ic: it was not a matter of not remembering whether such
a conversation had occurred; she knew it had not oc-
curred. The clarity of James' memory with respect to
this conversation stands out in sharp contrast to her in-
ability to remember other conversations of critical im-
portance to the case which are discussed elsewhere in
this decision. James professed to be clear in her mind in
this instance because she had a basis for recalling the
conversation. She asserted that it stood apart in her
memory from hundreds of telephone calls which she
made in connection with her campaign for elective office
in the Philippine Nurses Association because she had
spoken to Soriano by telephone previously and Soriano
had once called her for real estate advice. I found that
explanation irrelevant and unpersuasive. If anything, the
type of conversation she was having with other nurses-
at Rudan's request-made it inevitable that she would
have discussed the strike with Soriano.
Respondent contends that, despite the strong start of
her testimony, Soriano became uncertain afterwards and
was unable to state whether James told her she could or
should resign from the Union. I detect no uncertainty
whatsoever: she testified that James told her she "could"
write to Marshall and "could not" come back to work
without having done so.
2. Alicia Young
Alicia Young testified that James called her at home
on 25 July and left a message to call her back at her
home telephone number. Young returned the call on 26
121
July. In her testimony, Young quoted James to the fol-
lowing effect:
In the conversation she told me that a lot of
nurses had signed a petition that they were resign-
ing from the union because the union is not assisting
any more and it's not a professional union. So she
told me to write to Joann Marshall if I wanted to
resign also from the union . . . . That's all she told
me, that if I'm interested, just to resign from the
union by writing to Joann Marshall and I said that I
will must wait [sic] until the strike is over. . . . She
said to me that maybe the strike will not be over
and it will take time, so she advised me that if you
have decided to send a letter, send it by certified
mail to Joann Marshall. So I answered her that I'm
just going to wait until the strike is over and that's
all.
James called again a week later, at which time she told
Young:
Almost all the nurses are resigning already and this
week, this coming week, she said that they were
coming back to work and if you want to be interest-
ed to come back, you can come back any time and
will arrange you how to come back. But you [sic]
said that you have to resign first from the union
before you can come back to work.
Though Young testified that that was the entire conver-
sation, after reviewing a portion of an affidavit which
she had furnished to a Board investigator, she testified, in
addition , that James said something else: "She said to me
that I had to resign from the Union. I will write the
letter to Joann Marshall or they are going to send the
resignation to Joann Marshall."
When she told James she would sit out the strike,
James' response was, "Well, it's up to you, but if you
want to go back to work you have to make this letter
saying to Joann Marshall or you bring the letter and then
we will arrange for how you do it."
Young testified that on the telephone James used the
word "resign" many times: "Many times, just to write
the letter that you want to resign to the union."
Respondent attacks Young's credibility on the basis of
inconsistencies in her testimony respecting the number of
telephone conversations she had with James and the pre-
cise statements attributable to James in each. Unquestion-
ably, the various recountings of the conversations were
not consistent in all details, but, in the main, Young's tes-
timony was a coherent, consistent, and credible account
to the effect that James called her and told her that other
nurses were returning to work and that she could also
return if she quit the Union and that James expressed her
opinion that the strike might be a lengthy one.
The second order amending consolidated complaint
adds an allegation that about 26 July James urged and
encouraged an employee to sign a card to decertify the
Union. The employee is not named, but I presume from
the alleged date that the reference is to Young. The
matter is academic, for no proof of any kind was ad-
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duced in support of the allegation, whether with respect
to Young or anyone else.
3. Rosie Merka
Rosie Merka , a staff nurse on the night shift, testified
that during the strike James called her at home three
times . On at least one of these occasions , James called
from the hospital . Prior to these telephone calls she had
never spoken on the telephone with James, had never so-
cialized with her, eaten with her, discussed the Philip-
pine Nurses Association with her, seen James outside of
work, or had any conversation with her beyond custom-
ary salutations and greetings.
The first telephone call was on 27 July, when James
telephoned her at home in the evening . She described
the conversation as follows : "She called me and then she
said I 'm Mrs. James, a Filipino nurse . I was asked by Mr.
Rudan to called the Filipino nurses to return to work."
Merka's account of the conversation, like Soriano's, as-
serts that James started with an express statement that
she was calling the Filipino nurses to return to work.
The balance of the conversation with Merka related to
the fact that both women were Filipinos and spoke a
particular dialect and it was taken up with purely per-
sonal affairs . Merka promised to call James back when
she made a decision . A week later, James called her
again, around noontime. She described the conversation
on this occasion as follows:
She said you're still not back to work. She said
write to Ms. Joann Marshall . She's in the nursing
division of 1199. If I could help you to write a
letter if you need some help. . . . So she gave me
the address of Ms. Joann Marshall.
The third conversation took place when James called
her in the evening a week later . On this occasion the
conversation went as follows:
So she called me and then she said that-you know
she said why are these Filipino nurses they are so
hard headed to return to work, you know. She said,
you know I'm calling again for the Filipino nurses
because we're going to open another floor. So she
said they are very nice. She said Mr. Rudan and
Mrs. Herbert were very nice and understanding and
if we ask some days off or long vacations for what-
ever, overtime, private duties, they will give us
favors. Now this time they're asking us to return to
work and we still-we could not cooperate with
them to return to work . . . she said 1199 is asking
too much and you have already good benefits with-
out 1199.
Merka testified that during the telephone conversations
she did not feel threatened or coerced and James did not
make any statements indicating that her failure to come
back to work would have any bad consequences. She ex-
plained the reference to writing a letter to Ms. Marshall
as something James suggested to let the Union know that
she was returning to work, if she so decided. The con-
versations were friendly in tone.
In the course of her initial testimony, Merka indicated
that the remark by James about opening another floor
was made in the first conversation as well . She quoted
James as saying , "She said that I 'm calling for you to
return back to work because I want to open the floor."
In later testimony, however, she asserted that what
James told her was that Herbert and Rudan were simply
looking for reciprocation for their past understanding
and cooperation with the Philippine nurses and their spe-
cial problems. No new promises were being made to
induce them to return . James made statements about how
kind Herbert, the director of nursing, and Rudan, in
charge of education, had been in the past when Philip-
pine nurses requested longer vacations , wanted overtime,
or wanted private duty. The witness agreed with a
spoon-fed question by Respondent's counsel which sum-
marized the matter to the effect that James was in effect
saying nothing more than that in return for past fairness
to Filipino nurses, the nurses should do them a favor and
come back to work. She agreed that no special treatment
was promised to returnees, and James never promised
anything, threatened anything, or made her feel threat-
ened.
4. Patricia Simmons
Patricia Simmons , a day-shift nurse , testified that she
had wanted to return to work several times but did not
want to cross the picket line. In late August, she heard
on the radio that the Union had arrived at an agreement
with the League of Voluntary Hospitals and that it ap-
peared that the strike was almost over. The picket line
was still in front of the Hospital, so she telephoned the
nursing office to find out the procedure for returning to
work. James answered the telephone and told her to
send a letter by certified mail to JoAnne Marshall to the
effect that she resigned from District 1199. James dictat-
ed the format of the letter to her on the telephone. It
was something like, "I, Patricia Simmons am resigning
from 1199." James told her that that was the procedure
she had to follow to come back to work.
According to Simmons , the information given to her
by James was consistent with her own understanding of
what had to be done, and she was not even sure which
of them first mentioned the idea of writing a letter to
District 1199. She readily conceded under examination
by Respondent 's counsel that she was not threatened and
had already decided to return to work when she placed
the telephone call to the Hospital which was answered
by James.
5. James' testimony
Eufemia James testified that she was on very friendly
terms with Rudan, the director of education, who men-
tioned to her that the Hospital was calling nurses to find
out whether they were planning to return to work so
that it would always know how many floors to open up.
During this period in July, she was campaigning for
office in the Philippine Nurses Association and making
hundreds of telephone calls at her own expense from her
home. Rudan asked her to inquire, when she spoke to
any of the Hospital 's own nurses , whether they were
MANHATTAN HOSPITAL
planning to come back to work and let him know. She
did this. That is her explanation for the inquiries she
made.
In the course of making these telephone calls, James
spoke to most of the Respondent 's nurses, but was unable
to say precisely how many. She testified that her prac-
tice was to discuss association business with them first
and then ask if they had any intention of returning to
work. Some of them told her that they were afraid to
cross the picket line. Some said they were coming back
to work. Some said they were not. She reported the re-
sponses to Rudan.
According to James, the subject of resigning from the
Union only came up in conversations with some nurses
and then only because they told her that they wanted to
return to work but were afraid they would be fined for
crossing the picket line. James insisted that on every
such occasion she told them the decision was theirs to
make and that she never told anyone to resign from the
Union or that they could not come back to work unless
they quit the Union. She testified that some of the nurses
said that they would like to go back to work
and they said that they heard that they-they're
afraid to be fined and they said that some of their
co-workers told them that they have to resign from
the union. And I told them that I know of some
nurses that came back to work and have resigned to
protect themselves. But I said it was their decision
to make.
The campaign in the Philippine Nurses Association re-
lated to an election for officers and the board of direc-
tors of the Association which had originally been sched-
uled for the last Friday of July but had been postponed
to November. The General Counsel considers it suspi-
cious that though the rescheduling was accomplished
before 27 July, James continued making the telephone
calls. As they would have undoubtedly been made ulti-
mately in any case, I am not persuaded that her contin-
ued telephone activity is any evidence that the calls were
really being made to induce the nurses to return to work
and to resign from the Union.
6. Analysis and conclusion
The applicable general principle of law is that employ-
ers may not solicit employees to withdraw from union
membership, but they may bring to employees' attention
their right to resign from the union, may supply informa-
tion about the procedure for doing so and may even
supply forms. The employer may provide same in re-
sponse to employee request or furnish it unsolicited. Ace
Hardware Corp., 271 NLRB 1174 (1984); Perkins Machine
Co., 141 NLRB 697 (1963); Cyclops Corp., 216 NLRB
857 (1975). The employer's involvement must be limited
and statements by the employer must be free of threat
and coercion or promise of benefit. The critical factor is
not the actual effect or lack of effect of the employer's
statements on the employees' actions or frame of mind,
but whether the employer's statements are of a type
which tend to interfere with the employees' free exercise
123
of their rights under Section 7 of the Act. Choctawhat-
chee Electric, 274 NLRB 595 (1985).
An employer would not seem to violate the Act if he
makes no attempt to ascertain whether employees will
avail themselves of the rights to which they have been
educated by the employer, does not assist in more than
purely ministerial fashion , "or otherwise creates a situa-
tion where employees would tend to feel peril in refrain-
ing from such revocation." R. L. White Co., 262 NLRB
575, 576 (1982). The kind of conduct proscribed is that in
which an employer does the mailing, supplies stationery
and postage, retains copies of the letters of resignation in
its files, prepares the letter, and summons employees to
executive offices to sign the letters. KDI Precision Prod-
ucts, 176 NLRB 135, 138 (1969). The conduct must not
amount to solicitation by the employer, by words and ac-
tions , of union resignations or to such a marked indica-
tion of the employer's favor of such action that a situa-
tion would be created in which "employees would tend
to feel peril in refraining from signing the petition."
Erickson's Sentry of Bend, 273 NLRB 63, 64 (1984).
Questions about employee strike intentions unaccom-
panied by threats, promises, or other coercive conduct
are not per se unlawful, "but must be judged in light of
all of the relevant circumstances ." Mobile Home Estates,
259 NLRB 1384 (1982) (interrogation respecting employ-
ee's willingness to cross picket line in event of strike ac-
companied by statement that without union employer
could afford to pay better wages).
Applying these criteria to the most extreme conduct
by James about which there is credible testimony, it is
apparent that there are some respects in which it may
fairly be argued that she overstepped the bounds of per-
missible conduct. A review of her testimony and that of
the four nurses who testified to their conversations with
her leaves no doubt that she called and made inquiries
respecting their intentions with respect to the strike at
the behest of Respondent 's management ; made references
to resignation from the Union and in at least some in-
stances associated resignation with their return to work;
made followup telephone calls to ascertain what they in-
tended to do; and began some of the conversations with
the flat statement that she was calling them back to
work.
The most serious questions about James' conduct are
raised by the evidence respecting her conversations with
Soriano and Merka. Though Respondent asserts, in its
posthearing brief, that "the choice was clearly left up to
Merka whether to accept James' help" in drafting a
letter to the Union, it is not always so clear from the tes-
timony how much of an option was given to her by
James or with respect to what aspect of the matter she
was told an option existed. In the case of both Soriano
and Merka, James placed the telephone calls and began
the conversations with the flat statement that Rudan
wanted the nurses to come back or that she was calling
the Filipino nurses back to work. In the case of Soriano,
express mention was made of resignation from the Union
and it was made in connection with the procedure for re-
turning to work. In the conversation with Merka, only
letter writing was suggested (according to Merka's testi-
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony) without mention of resignation from the Union.
James offered assistance in writing the letter.
Furthermore, to the extent that James' denials conflict
with the testimony of Soriano, Merka, and Young, I tend
to credit the testimony of the nurses because I found
many of James' responses to questions evasive. For ex-
ample, when asked if she used Joanne Marshall 's name in
her conversation with Merka, she replied that she could
not remember; she conceded that she uttered Marshall's
name once or twice, but could not remember which con-
versations were involved because she had spoken to hun-
dreds of nurses. She had the same memory problem for
the same reason with respect to critical facets of her con-
versation with Simmons.
James' testimony was disputed by the nurses on a
number of points. On cross-examination about who first
mentioned resignation from the Union in the telephone
conversations, James testified, with some lack of clarity,
that one Filipino nurse, whose identity she could not
recall, mentioned that she had been told by others that
some nurses were avoiding union fines by quitting the
Union before returning to work. James did not claim that
any such information was volunteered by Soriano,
Young, Merka, or Simmons, though both Simmons and
Soriano testified that they had that information when
they called the Hospital and spoke to James. In Sim-
mons' case, the matter of who first brought up the ques-
tion of writing a letter cannot be resolved, for both Sim-
mons and James professed to lack any sure recollection.
James testified that she remembered nothing except that
she left the decision entirely to Simmons, as she had with
all of the nurses to whom she had spoken. That is
strange testimony , because Simmons was one person who
demonstrably had no irresolution about what she wanted
to do.
James ' stated reason for making the inquiries was that
Rudan had told her that a lot of nurses were crossing the
picket line and returning to work but, because the Hospi-
tal did not know who was coming in, it was difficult to
plan and open a floor. She testified that he asked that she
make the survey so that they could plan. The nurses
who testified indicated that it was the other way around:
James told them they were needed because Respondent
wanted to open another floor of the Hospital.
However, in most other instances of conflict between
James' testimony and that of other witnesses, either their
credibility seemed evenly balanced on the particular
point or the point itself was immaterial. For example, at
least one nurse said she got Marshall 's address from
James, although James denied knowledge of the address
of District 1199; never the less, if she had furnished the
address it would have been within the permissible limits
of employer assistance to employees seeking to withdraw
from or decertify a union . In addition, it has to be noted
that James' testimony regarding the reasons for her
making the inquiries not only presents a highly plausible
explanation, but is corroborated by Herbert's testimony
that it was necessary to find out who was coming in be-
cause of the erratic behavior of some nurses, who came
in for a day or two and then dropped from sight on ac-
count of the picket line.
I find that, on the entire record, all that has been es-
tablished by a preponderance of the credible evidence is
that James made numerous telephone calls during July
and August; that some of the calls were placed by her to
members of the unit; that she asked those nurses whether
they planned to come to work despite the strike; and that
she spoke to some of them more than once. No other
fact is established by a preponderance of the evidence in
the record which, together with the foregoing, would
support a finding that James' conduct placed Respondent
in violation of the Act.
Bearing in mind that the nurses to whom James spoke
knew that management would have liked nothing better
than a mass defection from the Union, James' communi-
cation to them that management wanted them back at
work said nothing that they did not already know. The
practical realities and the context in which the conversa-
tion took place cannot be ignored. It has been observed
that "any notification by a company to its employees of
their right to withdraw from a union carries with it at
least the notion that the company `wants' the employees
to withdraw." Cyclops Corp., 216 NLRB 857, 858 (1975).
There are two major respects in which the charges
have not been proved by a preponderance of the credible
evidence.
The first is a failure to establish the precise meaning of
James' remarks in the conversations in which resignation
is shown to have been discussed. In those conversations,
it is not at all clear whether James was pushing for de-
fection from the Union or simply explaining that, in
order for a nurse to cross the picket line and return to
work without becoming subject to a union fine, the pro-
cedure she had to follow was to resign from the union
before coming back to work. None of the statements
proved to have been made by James were so explicit
that, on their face, they required one or the other of
these two possible constructions.
The burden was therefore placed on the General
Counsel to adduce proof which would have invested
James' statements with a meaning which would have
made them unlawful . The burden was not met.
In Soriano's case, James told her that before she could
come back to work, if she wanted to, she would have to
resign from the Union. There is no evidence in the
record whether this remark is to be construed as an as-
sertion that no return to work would be permitted by the
employer except on resignation from the Union, or that
return to work was impossible because the Union had a
picket line in front of the Hospital and a fine for crossing
it could, as a practical matter, be avoided only by quit-
ting the Union. Such clues as are contained in the record
are not helpful to the General Counsel's case. At one
point, in response to a direct question , she testified that
James told her she could resign from the Union. The
conversations were held against a backdrop of nurses
quitting and returning to work through the picket line,
with many of them angry at the Union. James' remarks
may easily and reasonably be construed as a followup on
the picket line situation, for Soriano testified that she had
already heard, prior to receiving the call from James,
that some nurses who had crossed the picket line had re-
MANHATTAN HOSPITAL
signed from the Union first. It was a matter of common
knowledge . Soriano and the other nurses who testified
were all concerned with the danger of incurring a union
fine if they crossed the picket line, and resignation from
the Union had become an increasingly well known
means of avoiding the penalty, even on the part of some
who favored union representation. In any event, the fact
remains that the worst reading of James ' statement the
evidence supports would be that to come back to work
they had to resign from the Union, if they wished to
come back to work before the end of the strike without
paying a fine to the Union. The decision was clearly left
to the nurses , without coercion.
James' suggestion that Soriano join the New York
State Nurses Association has not been shown to be any-
thing other than suggestion to her by James of an alter-
nate professional association if Soriano elected to quit the
Union. There is no evidence to support construction of
the statement as recommendation of a different and pref-
erable collective-bargaining representative. (I did not
credit James' denial that she had made the suggestion
and I do not believe that the evidence submitted by Re-
spondent that James has not been a member of the Asso-
ciation since October 1982 is probative whether she
made the suggestion to Soriano.)
Taking Young's testimony at face value, the most ex-
treme statement James is found to have made is the as-
sertion that the strike could possibly be lengthy. That is
a statement protected by Section 8(c) of the Act as a
statement of opinion containing no threat of reprisal,
force, or promise of benefit and, moreover, was made
with respect to a point which is essentially ancillary to
the issues of this case.
In Young's testimony , it is not made clear whether
James simply told her to write to Joanne Marshall if she
wanted to resign , or told her she had to resign, or that
she had to resign to come back under any circumstances,
or even whether James only had reference to the prob-
lem of getting across the Union's picket line without in-
curring a union fine.
In Simmons ' case, as I have noted, the matter of who
first raised the question of writing a letter cannot be re-
solved. However, nothing in Simmons ' testimony sug-
gests culpable conduct.
In contrast to Young's testimony that James used the
word "resign" many times, Merka testified that James
never told her to resign from the Union in any of the
three telephone conversations that they had. She testified
as follows:
JUDGE LAWRENCE: Did you ask her why you
had to write to Ms. Marshall?
THE WITNESS: No, she told me. She just told me,
you know, to-she just give me the name of Ms.
Marshall to write to her in order to return to work.
It is possible to interpret that testimony only as a state-
ment clearly inferring some kind of linkage between
writing to the Union and returning to work. The nature
of the linkage, however, is altogether unproven. Return-
ing to work was the only possible subject a letter could
be written about, but whether that entailed a statement
125
of resignation from the Union by Merka and the true ob-
jective of such a resignation are matters on which there
is no decisive credible evidence in the record.
The second respect in which I find failure of proof on
a critical issue is the failure to establish the existence of
coercion by a preponderance of evidence.
In none of the communications between James and
any of the four nurses whose testimony I have just re-
viewed is there any statement which can reasonably be
construed as coercive in tone, intent, or probable effect.
I am excluding from consideration their unanimous testi-
mony that they felt no coercion or pressure as well as
the fact that, except for Simmons, who, on her own initi-
ative had called the Hospital and reached James, they
did not, in spite of James' statements, quit the Union and
return to work. The statements made were devoid of co-
ercion. James told the nurses that the Hospital adminis-
tration would like the nurses to return to work and that
if they wanted to return, which the nurses all knew
could not be done without crossing the picket line and
incurring a fine, the hospital administration would help
them get letters out to the Union. Such assistance would
have been purely ministerial and within the permissible
limits established by Board precedents. There were no
promises and no threats.
I have taken into consideration the emphasis which
James is alleged to have placed on the probable duration
of the strike and on the return of many nurses to work
after quitting the Union, and I have considered the fact
that James made more than one telephone call to two of
the nurses. Nevertheless, it is clear from the witnesses'
testimony that throughout the conversations the option
was left with them whether to quit the Union and return
to work or sit out the strike.
Merka testified that her conversations with James
were friendly in tone.
Simmons' testimony patently demonstrated the absence
of coercion on the part of James in her case.
As a final note, the absence of testimony from anyone
else should be noted. There were approximately 100
nurses in the unit, but the General Counsel's case rested
on unclear testmony from only a few of them. Accord-
ingly, I find no violation of Section 8(a)(1) of the Act by
reason of James' conversations with any of the four
nurses who testified.4
F. Aid to the Decertification Movement
1. The union decertification fact sheet
Respondent prepared a fact sheet laying out the proce-
dures for union decertification. Respondent contends that
it was not prepared for circulation among the nurses, but
for the edification of Herbert. Herbert testified that on
the commencement of the strike on 13 July she began re-
ceiving telephone calls from irate nurses asking her about
4 Respondent 's Second and Third Defenses are dismissed as inapplica-
ble to the alleged violations involving James . James' remarks were not in
the nature of "views, argument, or opinion" within the protection of Sec.
8(c) of the Act and the first amendment to the Constitution of the United
States
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decertification and she asked Carol Handfus to "research
it."
The document supposedly produced by Handfus, a 2-
page memorandum entitled "Union Decertification Fact
Sheet," reads like a call to arms. It begins with a declara-
tion that employees who no longer wish to be represent-
ed by the Union and want to remove it "have the right"
to do certain things. There followed four paragraphs out-
lining the procedure. Methods of preserving anonymity
on the part of signers are set forth and reassurance is
given that the NLRB keeps such names secret. It is
noted, in a tone of alarm augmented by emphasis, that
the signatures must be submitted "to the NLRB before a
new contract for the RN's is signed. Once a new con-
tract is in effect, decertification will be impossible."
The memorandum concludes in the following fashion:
(4) The law (National Labor Relations Act) says
you are not required to have a union representing
you if you do not wish to be represented by the
union.
You can be sure that the federal labor law stands
behind you and that you are protected in a decerti-
fication effort by the power of the Federal Govern-
ment and the courts.
Herbert testified that the pronoun of the second person
was employed in the memorandum to facilitate her an-
swering telephone inquiries by simply reading from it. I
do not credit that explanation because it is belied by the
bellicose tone of the memorandum . All that is proved,
however, is that Handfus prepared a memorandum for
Herbert's use which on its face exceeds the permissible
limits of employer assistance to employees seeking infor-
mation about decertification and which sounds like a
summons to combat. There is no proof that the memo-
randum was distributed or its contents read over the tele-
phone or otherwise disseminated . The only evidence that
it ever found its way outside of Herbert's office is her
testimony that she momentarily forgot an envelope con-
taining it in a meeting room and testimony by Mary
Callan, a staff nurse, that she found a copy of it under
her door. Callan testified that she made no inquiries
about how it got there. Her testimony is suspicious. If
credited, however, it suggests that the memorandum was
intended to be, and to some extent was, distributed, but
does not prove that it was in fact distributed by Re-
spondent. Ajdari did not see it until later. It is possible
that someone, knowing Callan's antiunion feelings, to
which she testified, felt that delivering a copy to her
would be more effective than a wholesale distribution. In
fact, it was. Callan testified that she was delighted to get
it and went right down to the Board office to file a peti-
tion, only to discover that Ajdari had already been there.
The identity of that person and his or her connection to
Respondent, however, are unproved.
The circumstances of the delivery of the memorandum
to Callan remain a mystery, which means that the Gen-
eral Counsel has not established a violation by a prepon-
derance of the evidence. Speculation cannot be substitut-
ed for evidence. There is no evidence that any persons
other than Handfus, Handfus' secretary (who typed it),
Herbert, Callan, and, later, Ajdari ever read it. There is
no evidence that it was read over the telephone to
anyone by Herbert. There is no evidence that Respond-
ent acted on it, whatever the intentions may have been.
There was no evidence to explain why Respondent
would have instigated Callan to file a decertification pe-
tition if Ajdari had already done so. And all of this re-
mains true if Callan's testimony is not credited.
2. Meeting of 28 August
On 28 August, at 1 o'clock in the afternoon, Francis
Carling, an attorney for the Hospital, addressed a meet-
ing of 25 or 30 nurses in the doctor's lounge. The com-
plaint alleges that Respondent "discriminatorily granted
aid ... to those of its employees seeking to decertify the
Union by granting paid time off from work to its em-
ployees in the unit ... to facilitate their attending" the
meeting "wherein decertification of the Union was dis-
cussed."
The organizer of the meeting was Farideh Ajdari, the
staff nurse who had filed the petition for decertification
on 18 July (having been one of the nurses who inquired
of Herbert respecting the procedure). She testified that
she got permission to use the doctor's lounge on 28
August and invited Carling to address the meeting.
With respect to the object of the 28 August meeting,
Respondent asserts in its posthearing brief that it was a
meeting of, by, and for the nurses to discuss the recent
blocking of the election. The General Counsel contends
that it was a meeting called by antiunion nurses for the
purpose of asking Carling about decertification and their
other legal options. That is, in effect, a concession that it
was the nurses' own meeting. The evidence shows that
the nurses did not draw fine legal distinctions, but sought
assistance on the whole problem of getting back to work.
Decertification inevitably was mentioned. The election
had been blocked. According to Ajdari,
[W]e wanted to do something else because we were
so desperate that there's nothing being done and
they already delayed the election, and the majority
of nurses already crossed the picket line. They
wanted to know what is their options and if the law
would permit them to do something else to proceed
in their-because they were very dissatisfied with
the union.
So, we started to do something else. I called
some of my friends and we talked about it together
and that's what we did. We started collecting more
signatures.
In short, with the election blocked by reason of the
filing by the Union of the unfair labor practice charges,
the nurses were advised by Carling to request withdraw-
al of recognition of the Union.
Counsel for all parties stipulated at the hearing that
Respondent permitted the nurses to attend the meeting at
1 o'clock, did not dock them for overstaying the lunch
hour, and the subject of decertification of the Union was
discussed at the meeting . Parvan Valentini, a staff nurse
who attended the meeting, described it. She testified that
MANHATTAN HOSPITAL
approximately 20 nurses attended. Ajdari introduced
Carling and stated that he was there to answer any ques-
tion they had. Carling stated that he had been invited by
Ajdari and that management had nothing to do with the
meeting, and that he was there to answer any questions
they had about the strike. Valentini attributes a statement
to Carling to the effect that they could get the Union out
if 51 percent of the nurses came back and resigned from
the Union. He repeated the statement when Valentini
pointed out that not all the nurses who had resigned to
return to work without being fined actually wanted the
Union out. He also stated that he expected the strike to
last for a long time because Marshall had not kept an ap-
pointment for a negotiating session . He then left. The
meeting ended about 2 o'clock.
Valentin also testified that the morning of 28 August
James conferred with Partik and they rearranged the
lunch hour of the registered nurses whom Partik super-
vised to enable them to attend the meeting. Her testimo-
ny in this regard is uncontroverted, for Partik was not
called as a witness by Respondent and James , who testi-
fied both before and after Valentin, was not asked about
it. Herbert's explanation was that at the time there was
no normal scheduling . Schedules were disrupted by the
strike and the nurses took their lunch and breaks as and
when they were able to while they worked the exces-
sively long hours necessitated by the strike, and none
was actually excused from duty to attend the meeting. In
a way, Valentin's and Herbert's testimonies are in
accord that no nurse was released from duty to attend
the meeting , for had they been released there would
have been no need to rearrange the lunch hour.
I find that James and Partik made arrangements to fa-
cilitate nurses ' attendance at a meeting called by antiun-
ion nurses to find out what they could do legally about
getting rid of the Union. In doing so, however, James
and Partik were not inducing any persons to attend the
meeting nor seeking to influence decisions on issues
which were on the agenda of the meeting. They were
making it easier than it might otherwise have been for
the persons who wished to attend the meeting during
their lunch hour to exercise the rights guaranteed them
by Section 7 of the Act. The fact that some nurses may
have overstayed the lunch hour and were not docked is
immaterial , for in failing to clock the nurses to the
minute, Respondent has not been shown to have given
disparate treatment to them as compared to the treatment
which it had customarily accorded to persons attending
union meetings . Under the circumstances, I perceive no
violation of the Act.
G. Alleged Offenses Under Section 8(a)(5) and (1)
The General Counsel contends that Respondent violat-
ed the Act by express withdrawal of recognition of the
Union on 7 September and by actions which it thereafter
took inconsistent with the recognition to which the
Union was entitled.
1. Withdrawal of recognition
On 7 September, Dr. George A. Sarkar, the executive
director , sent a letter addressed to Joanne Marshall, the
127
executive vice president of District 1199, withdrawing
recognition of District 1199 as bargaining agent for the
registered nurses and advising that Respondent would
not attend the negotiating session scheduled for 10 Sep-
tember. The letter set forth the following bases for the
withdrawal of recognition: (1) as of 27 August, while the
strike was still in progess, a majority of the registered
nurses had crossed the picket line and returned to work;
(2) the belief that many, if not all, of the nurses who did
so had resigned from the Union; (3) receipt by Sarkar, on
7 September, of a "petition signed by a majority of the
bargaining unit nurses" requesting management to with-
draw recognition; (4) the belief based on the foregoing
facts that District 1199 no longer represented a majority
of the registered nurses employed at the hospital.
At least one statement contained in the letter appears
to be technically contrary to fact, for there appears not
to have been one document signed by the nurses in the
form of a petition, but rather a submission to Herbert by
Ajdari of index cards signed by nurses which she had
been collecting under cover of the previously quoted
letter dated 6 September setting forth that because a ma-
jority of the nurses no longer wished to be represented
by District 1199, she was submitting the cards and re-
questing that management not negotiate further with the
Union.
The General Counsel attacks Respondent's action on
the grounds that it was taken without foundation in any
reasonable belief based on objective considerations and
that the withdrawal was tainted because it was done in a
context of unfair labor practices committed by Respond-
ent. The General Counsel's position is based more on ar-
gument than on evidence. The General Counsel raised
questions regarding a number of details, some of which
were immaterial, but resolved none of them by presenta-
tion of evidence supporting the allegations of the com-
plaint. She pointed to the fact that the presence of four
or five per diem nurses who were on duty at the Hospi-
tal may have had some effect of calculation of a majori-
ty, without offering proof as to what the effect was. She
pointed out that Herbert may not have had all the cards
in her possession on 6 September, when Herbert and
Sarkar conferred and the decision to withdraw recogni-
tion was made. There was uncertainty in Herbert's testi-
mony regarding the actual number of cards that were in
her possession, on that date and the next day, when the
letter went to the Union. There was also evidence that
she received cards thereafter, one of which was dated as
late as 30 September. These questions were raised incon-
clusively and do not affect the thrust of the weight of
the evidence. At the same time the General Counsel
raises questions such as these, and asserts, in the posth-
earing brief, that Respondent acted too hastily, it is also
set forth that "Respondent was anticipating the presenta-
tion of the cards by Ajdari and wasted no time with-
drawing recognition. When Herbert was presented with
the cards she told Ajdari, `I was very surprised that this
had been accomplished."' Italics was supplied by the Gen-
eral Counsel for emphasis. What it emphasizes, in my es-
timation, is the glee and sincerity with which Herbert ac-
cepted Ajdari's count of the cards and took them to Sar-
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kar's office. In doing so, she patently acted in the belief
that the fervently desired majority in favor of withdraw-
al had been achieved. She happily issued a memorandum
to all the nurses announcing what she regarded as good
news . Herbert's elation at Ajdari's "accomplishment" is
the most eloquent evidence of her sincere conviction that
the Union had lost its majority.
Ajdari testified that she had worked under great anxie-
ty that she might not get enough signatures before nego-
tiations were scheduled to resume on 10 September. She
stopped collecting as soon as she thought she had a ma-
jority. When she had collected the decertification cards
and filed them with the Board, she had stopped at 30.
She testified that in the period before the election (sched-
uled for 30 August) she and her friends did not try to
persuade anyone else how to vote "because we had al-
ready majority of the nurses . . . expressing their feel-
ings that they do not want to stay in the Union and they
had crossed the picket line already and they wanted to
come back to work." After the election was postponed,
she estimated 54 or 55 nurses were back at work, though
she was uncertain as to the exact number. She began col-
lecting signatures on cards requesting withdrawal of rec-
ognition when nurses began calling her and pressing for
some action before negotiations resumed on 10 Septem-
ber. (This time she bought the index cards and Mary
Callan typed them.) Five other nurses helped her get sig-
natures. She testified they collected signatures over a
period of 2 or 3 days, stopping at 51 because that was a
majority and 10 September was drawing close.
Ajdari testified she was committed to the cause of get-
ting rid of the Union deeply enough to have paid the
cost of the meeting room at the Barbizon Hotel out of
her own pocket. She and Herbert both believed that a
majority of the nurses had signed cards requesting with-
drawal of recognition. (I note that in this instance she re-
ferred to 51 cards as a majority whereas she had referred
to 30 cards as a majority in connection with the decerti-
fication petition, but I ascribe this to loose use of the
word, "majority." She obviously was referring to the
legal numerical requirements in each of these two sepa-
rate situations.)
I credit Herbert's and Ajdari's testimony respecting
their belief and reject the General Counsel's contention
that it was incumbent on Herbert to check the current
payroll to make sure of the majority. I am not dissuaded
from this conclusion by Herbert's admission of uncertain-
ty about the exact number of cards in hand when Sarkar
signed the letter to the Union. The evidence is substan-
tial that Ajdari, Herbert, and Sarkar, who relied on Her-
bert when he signed the letter withdrawing recognition,
believed that a majority for withdrawal of recognition
had been achieved by Ajdari. Their behavior-Sarkar's
inquiry of Herbert as to the existence of a majority, her
assurance that it was there, the discussion of where to
keep the cards, the decision to put them in the safe and
the telephone call to counsel, who at the time was in
London-all of these actions were behavior consistent
with their asserted belief that the majority had been
achieved, regardless of what the number was. Sarkar
took the kind of precautions which would have been ex-
pected to be taken by a person in his position who con-
templated such an important and legally momentous step.
I find that Respondent's withdrawal of recognition was
based on a bona fide belief that a majority in favor of
withdrawal of recognition existed among the nurses and
that a majority of the nurses were already back at work.
There is no evidence, in fact, that as of 7 September a
majority had not been achieved.
Since I have not found that unfair labor practices were
committed prior to 6 September, no question is presented
whether Respondent's withdrawal of recognition was
"tainted" thereby.
2. Actions by Carol Handfus on 12 September and 9
October
Respondent, in its answer , admits allegations that "Re-
spondent, by Handfus, on or about September 12, 1984,
instituted wage increases, pension , health and insurance
plans" and that Respondent "on or about October 9,
1984, instituted a new grievance procedure." In each
case , Respondent has alleged that at the time, recogni-
tion of the Union had been withdrawn. Because no col-
lective-bargaining agreement was in effect covering the
nurses, and Respondent had withdrawn recognition of
the Union in the bona fide belief that a majority of the
nurses in the unit favored such action, there was no legal
impediment to unilateral implementation of wage and
benefit arrangements or to the promulgation of new
grievance procedures. The alleged actions by Respond-
ent were not in violation of the Act.
3. Cancellation of union meetings scheduled for 16
October
On 1 October, Respondent sent District 1 199 a letter
confirming reservation of the second floor conference
room "for your Chapter Meeting for the Hospital and
Guild Division being held on Tuesday, October 16, from
8:00 a.m. to 5:00 p.m." Written confirmation was request-
ed.
On 10 October, Handfus sent the Union a second
letter, referring to the first letter and to conversations
which had preceded it. Recalling that the authorization
which had been granted had been limited to meetings of
the Hospital and Guild Division employees, whose bar-
gaining units were still represented by the Union, the
letter concluded, "Despite these very specific conditions,
I learned today that leaflets were distributed throughout
the Hospital announcing a meeting including th R.N.'s.
Under these circumstances, the Hospital has cancelled
your reservation and no space will be made available to
you at this time."
The General Counsel's contention that Respondent
thereby violated article V, section 2, of the collective-
bargaining agreement, which carried forward into the re-
newal negotiation period, and thus violated the Act, is
based on the presupposition that recognition had been
unlawfully withdrawn. As I have found that it was not
unlawfully withdrawn, the section is inapplicable. How-
ever, it would have provided little support for the
Union's position in any event, for the terms of the collec-
tive-bargaining agreement did not allow the Union the
MANHATTAN HOSPITAL
access which was demanded by the Union after its expi-
ration. Article V, section 2, provided as follows:
2. A representative of the Union shall have reasona-
ble access to the Employer for the purpose of con-
ferring with the Employer, delegates of the Union
and/or Employees and for the purpose of adminis-
tering this Agreement. Where the Union representa-
tive finds it necessary to enter a department of the
Employer for this purpose, he/she shall first advise
the personnel office or the head of the department
or his/her designee in person, as the Employer shall
state . A delegate intending to go to a department
other than the one he/she represents shall follow
the above procedure. Such visits shall not interefere
with the operation of the Employer.
The Union scheduled meetings with employees in bar-
gaining units other than that of the registered nurses, for
all the shifts, on 16 October. Arrangements were dis-
cussed with Handfus in advance. They were then con-
firmed in writing. It was clearly understood that the
nurses were not to be involved in the meetings , yet the
Union persisted in circulating flyers inviting them to the
meetings and union representatives began approaching
the nurses in the common areas of the Hospital to solicit
their support. There is no conflict in the evidence re-
specting the Union's patent violation of the understand-
ings reached with respect to the meetings. Under the cir-
cumstances , Respondent did not violate the Act by insist-
ing on the Union's adherence to the understanding previ-
ously reached and withdrawing the authorization for the
use of space in the Hospital.
4. Confrontation on 16 October
I mentioned the fact that the Union did not respond to
Respondent's letter of 10 October. Three organizers
showed up for the meetings on 16 October. They entered
the cafeteria and conversed with both the registered
nurses and members of the units whom they continued to
represent. They were invited to leave the cafeteria, and
did, but they congregated in the lobby and refused to
leave for more than 7 hours despite repeated requests
from hospital personnel and the police, who were sum-
moned by Respondent toward the end of the day. The
police arrested them. Following this imbroglio the Union
filed additional charges , resulting in new allegations that,
without prior notice to the Union and without affording
the Union an opportunity to negotiate as exclusive repre-
sentative of Respondent 's registered nurses , Respondent,
acting through Handfus, instructed the union representa-
tives to leave the cafeteria and promulgated a rule re-
quiring prior permission before they entered the cafeteria
or lobby area of the Hospital; that Respondent "by its
agent" instructed union agents to leave the Hospital and
caused the arrests of "Union organizers" by the police
when they refused to leave; that Respondent, acting
through Barbara DeVito , a personnel department repre-
sentative , promulgated a rule restricting access by union
representatives to the library ; and that these actions were
taken to prevent the union representatives from meeting
with and representing Respondent's registered nurses.
129
The General Counsel contends that Respondent's ac-
tions contravened the reasonable access clause of the col-
lective-bargaining agreement and past practice of the
parties , and that the access provisions survived the expi-
ration of the agreement . At the same time , the General
Counsel argues that the grievance and arbitration proce-
dures are not available to Respondent , and therefore Re-
spondent must answer in these proceedings alleging
unfair labor practices , because those provisions do not
survive the expiration of the collective- bargaining agree-
ment . (The General Counsel raises an additional argu-
ment in the posthearing brief to the effect that Respond-
ent's actions violated "the Master Agreement which was
in effect on October 16, 1984," but there is no allegation
pertaining to same in the complaint and no evidence was
offered respecting the agreement to which reference is
made.)
Respondent does not dispute most of these allegations,
but denied the allegations that the cafeteria is open to
nonemployees of the Hospital, that the Union was re-
quired to get prior permission to enter the lobby, that the
Union represented the nurses , that Respondent 's actions
were taken without prior notice , and that Respondent's
actions violated Section 8(a)(1) of the Act. Although ar-
guing that no collective-bargaining agreement was in
effect at the time and that "an employer is not obligated
to allow a union whatever access if may demand" Re-
spondent argues that the Union should have resorted to
the grievance and arbitration procedures provided for in
the collective-bargaining agreement . In its posthearing
brief, Respondent chastises the Union for concededly
trying to maintain contact with the registered nurses and
trying to compel Respondent to deal with the Union as
their representative, ignoring the Union's contention that
it still represented the nurses and was entitled to recogni-
tion as their bargaining agent.
My finding that Respondent withdrew recognition on
7 September in the bona fide belief that the Union no
longer represented a majority of the registered nurses in
the bargaining unit leads inexorably to the conclusion
that Respondent acted lawfully in promulgating the rules
complained of without prior notice to, or consultation
with, the Union. The union organizers ' entry on the
premises without making prior arrangement with the
hospital administration was a violation of the access
clause of the collective-bargaining agreement , and in the
period following its expiration and the withdrawal of
recognition, the Union had even less right to be on the
premises . The Union's position in this regard is not
helped by the testimony of Lisa Heelan, a union organiz-
er, that she told Handfus at the beginning of October
that more that 51 percent of the nurses had signed a peti-
tion requesting the Union to represent them, for Heelan
also testified that Handfus asked to see it and she refused
to show it to her.
The General Counsel attempted to counter Respond-
ent's argument that exclusion of the union representatives
from the cafeteria was lawful with testimony by Heelan
that she had been subjected to verbal abuse by a hospital
official for using the cafeteria on 28 August. I find no
relevancy therein to the issue of Handfus ' right to ex-
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clude them in October and I note also that there is insuf-
ficient evidence respecting that hospital official 's status
and authority and the overall effects of his conduct to
make Heelan's testimony meaningful and material.
Testimony by Mary Ann Steel, another organizer, to
the effect that she and Heelan were approached by a se-
curity guard in the cafeteria one Friday earlier in Octo-
ber and told that he had been instructed to remove them
from the premises , similarly relates to an event in Octo-
ber, after withdrawal of recognition.
The General Counsel contended that the cafeteria was,
in fact, open to the public. The testimony is in conflict
on that point. However, the only evidence that persons
other than employees used the cafeteria, other than cer-
tain specific persons conceded to have been allowed to
use it by Respondent (contractors and the Hospital's
ladies' auxiliary) consists of Steele 's testimony that on 16
October there were three ladies in fur coats sitting in the
cafeteria at lunchtime. There was no evidence who they
were, so their presence does not support an argument
that the place was a public cafeteria. I credit Herbert's
testimony that the cafeteria is not open to the general
public and that there is a sign on the door saying, "Em-
ployees Only." She further testified that the only persons
who use the cafeteira other than hospital staff were con-
tractors working in the building and the women' s auxilia-
ry and that the nurses have instructions that the patients'
families are to be told that the cafeteria is not a public
facility and is not available for their use.
The hospital lobby is, of course, an area used by pa-
tients, visitors, doctors, hospital personnel, and others
having business with Respondent. Respondent denies
having promulgated any rule excluding its use by union
representatives. The testimony of Steele and Heelan
leads me to credit the denial . Steele's testimony concern-
ing events on 16 October was to the effect that on that
date she met Heelan and Diana Thomas, another orga-
nizer, in the lobby. Between 7 and 7:30 a.m., they went
to Handfus' office to let her know their whereabouts in
the institution, presumbly in accordance with the proce-
dure called for by article V, section 2, which I have pre-
viously quoted. They said they were going to the cafete-
ria and "that if we intended to go or enter any depart-
ment, we would inform her which is customary and
that's per the contract ." Handfus told them again that
she should be informed where they were going, but at
that point they had no plans to enter any particular de-
partment. They went to the lobby to await the arrival of
Joanne Marshall and another union official, and then
they all went to the cafeteria. At lunchtime, Handfus ap-
proached them there and announced "that the cafeteria
was off limits to us."
No statement by Handfus is quoted which prohibits
their use of the lobby. Heelan testified as follows respect-
ing the statement made by Handfus, in the present of
Diana Thomas and Mary Steele:
Q. Did you have a conversation-did Ms. Hand-
fus speak with you in the cafeteria?
A. Yes, she did. She came down and said that in
the future we would need permission to be in the
cafeteria, you know , and that we really should not
be in the lobby.
The distinction between access to the cafeteria and
access to the lobby is explicit in the very statement made
by Handfus. There is a self-evident difference between
the reference to the undesirability of, rather than the
prohibition against, loitering in the lobby. There is,
therefore, no evidence that a rule against union repre-
sentatives ' use of the lobby was announced.
What Heelan's testimony does establish is that loitering
in the lobby was warned against, notwithstanding which
of the union officials returned to the lobby, after unsuc-
cessfully attempting to see Sarkar , and remained there
the entire afternoon . At the end of the afternoon, Hand-
fus came down to the lobby with counsel for Respond-
ent, who demanded that they leave. When they refused,
he called the police. Steele, Heelan, and Thomas were
arrested about 6:30 p.m.
Though the Union still represented other hospital em-
ployees, the testimony leaves no doubt that the organiz-
ers who refused to leave the lobby on the afternoon of
16 October were there for the sole purpose of contacting
the nurses as they entered and left the building. Recogni-
tion of the Union as the representative of the nurses
having been expressly withdrawn about 5 weeks before
and the hospital lobby not being a public place, the
union organizers should have conducted their business
outside the building . They were arrested , not because of
their violation of a rule promulgated to the effect that
they could not enter and remain in the lobby, but be-
cause they were refusing to leave a private building at an
hour when the hospital offices were closing and the re-
sponsible officials of Respondent were leaving for the
day.
I find that no rule was promulgated with respect to
presence of union personnel in the hospital lobby. The
Act was not violated by the promulgation of a rule ex-
cluding union organizers from the cafeteria and the hos-
pital library or by the summoning of police and the caus-
ing of the arrest of the organizers who refused to leave
the lobby. That these actions were not taken to prevent
the union representatives from meeting with and repre-
senting Respondent 's registered nurses in a lawful
manner is apparent from Steele 's testimony that on the
afternoon of the 16 October, when Handfus met with
them and with Joanne Marshall and another union offi-
cial, Handfus offered them the use of office space in the
Hospital. According to Steele, they considered the offer
very generous, but did not accept it pending consultation
with higher union officials.
CONCLUSIONS OF LAW
1. Respondent is now , and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and a
health care institution within the meaning of Section
2(14) of the Act.
2. The Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
MANHATTAN HOSPITAL 131
3. Respondent has not engaged in unfair labor prac- [Recommended Order for dismissal omitted from pub-
tices within the meaning of the Act. lication.]