Massillon Community Hospital

National Labor Relations Board - Board Decisions

Jan 9, 1987

282 N.L.R.B. 675 (N.L.R.B. 1987)

MASSILLON COMMUNITY HOSPITAL
Massillon Hospital Association - d/b/a Massillon
Community Hospital and International Union of
Operating Engineers, Local Union 589, AFL-
CIO. Cases 8-CA-13541, 8--CA-13790, 8-CA-
14306, 8-CA-14545, 8-CA-14705, and 8-CA-
14705-2
9 January 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 September 1981 Administrative Law
Judge George F . Mclnerny issued the attached de-
cision . The General Counsel and the Respondent
each filed exceptions and supporting briefs.
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,' fmdings,2
and conclusions only to the extent consistent with
this Decision and Order.
1. The complaint alleges that after the Respond-
ent and the Union3 reached agreement on all con-
tract provisions but the contract term, the Re-
spondent demanded to impasse that the contract be
terminable at will, and that by , such conduct the
Respondent has failed and refused to bargain in
good faith in violation of Section 8(a)(5) and (1) of
the Act . The judge dismissed this complaint allega-
tion, finding that the Union had in equal or greater
measure created the impasse , that the Respondent's
proposal for a terminable -at-will contract could not
be found a controlling factor in the impasse, and
that, in any event , the facts here do not come
within the ambit of Chicago Typographical Union
Local 16 (Chicago Newspaper Publishers).4 The
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law ,fudge'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 examined the record and find no basis for reversing
the findings.
2 Chairman Dotson would not adopt the judge's finding that the Re-
spondent, through its director of engineering services, Robert G. Kauff-
man, violated Sec, 8(a)(1) by asking employee Jay Charlton, after com-
pleting a review of Charlton's evaluation, whether Charlton had any idea
what the "other guys wanted with bringing a union into the shop." In his
view, Kauffman's single casual inquiry into why the employees wanted
the Union, coming 6 months after the Union had been certified as the
employees' bargaining representative and during the course of negotia-
tions for a collective-bargaining agreement, was not coercive.
8 The Union is the certified, collective-bargaining representative of the
Respondent's maintenance and powerhouse employees employed at its
Massillon, Ohio facility
4 86 NLRB 1040 (1949)
675
General Counsel excepts, essentially contending
that the issue is not what part the Union played in
creating the impasse, but whether the Respondent
proposed, and insisted on, a terminable-at-will con-
tract. According to the General Counsel, by de-
manding to the point of impasse that the contract
be terminable at Will, 5 the Respondent thereby in-
sisted on a provision repugnant to a basic policy of
the Act,6 and thus failed in its duty to bargain in
good faith. For the reasons set forth below, we
fmd merit to the General Counsel's contentions.
At a 3 June 19807 bargaining session, the parties
resolved all outstanding issues but that of the term
of the contract. The Union took the position that
based on the Hospital's initial 3-year wage propos-
al, previously rejected by the Union, the parties
had agreed on a 3-year term and that no discussion
or further negotiation on the subject occurred. The
Hospital responded that either the parties had a
contract with no fixed term, as indicated by the
draft under discussion that contained no termina-
tion date, or they had no contract at all.
In a followup letter dated 4 June, the Hospital
reviewed the history of negotiations regarding the
contract's term. The letter states, in pertinent part,
that other than the Hospital's rejected wage pro-
posal, no reference 'was made during negotiations
to the term of the contract or the expiration date,
and that "there is absolutely no evidence of any
agreement on this point." The letter goes on to
state:
In the absence of any agreement [on the term
of the contract], the contract is terminable at
the will of either party, subject to compliance
with applicable statutory' notice requirement.
Thus, the Hospital's position is that the con-
tract is effective upon signing and is termina-
ble at will . . . . If the union disagrees with
this position,' then we have no contract at all
since this is a mandatory subject of bargaining
and there is an apparent impasse.
On 5 June the Union responded with a mailgram
reiterating its belief that the parties had agreed on a
5 The General Counsel has excepted to the judge's refusal to admit
into evidence a letter dated 5 November 1980, sent by the Respondent's
counsel to the- Region setting forth the Respondent 's position concerning
the issues raised by the charge in Case 8 -CA-14306, and admitting, in
pertinent part, that during contract negotiations the Hospital was firmly
committed to an agreement terminable at will The Respondent has never
disavowed this letter, the substance of which is clearly material to the
unfair labor practice issues being litigated . In these circumstances, it is
the Board's policy to admit proffered position papers of parties into evi-
dence. Florida Steel Corp„ 235 NLRB 1010, 1011-1012 (1978) We shall
therefore admit the letter into evidence.
6 Chicago Typographical Union, supra, Armour & Co., 48 NLRB 1412
(1943)
T All events herein are in 1980 unless otherwise indicated
282 NLRB No. 98
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract term of 3 years. The Hospital, in response,
sent a letter dated 9 June, which states:
It appears as though we are at impasse over
the issue of the term of the agreement, all
other terms having been agreed upon. The
Hospital's final offer on this issue is for an
agreement terminable at will. I feel that this is
an appropriate term for the agreement, since
the major economic benefits contained in the
other proposals are general in nature . . . and
are not limited to any specific time reference.
The letter goes on to refute the Union's contention
that a 3-year term had been agreed on. In closing,
the letter again "proposes that the contract be ter-
minable at the will of either party subject to appli-
cable statutory notice, provisions," and suggests
that the Union contact the Hospital's counsel
should it decide to accept the Hospital's proposal
on this point, or have some suggestion for breaking
the impasse.8
The Union did not respond to the Hospital's 9
June letter, but thereafter filed the charge in Case
8-CA-14306, which resulted' in issuance of the in-
stant complaint.9
The judge, while acknowledging that the Re-
spondent demanded a terminable-at-will contract,
found the ensuing impasse arose not only from this
demand, but from the Union's contrary insistence
that the parties had previously agreed to a 3-year
contract. The judge therefore found, as noted
above, that the Respondent's proposal for a termi-
nable-at-will contract was not a controlling factor
in the impasse that followed, that Chicago Typo-
graphical Union does not govern these facts, and
that the Respondent did not unlawfully insist that
the contract be terminable at will.
We agree with the judge that each side insisted
that its position on the contract's term should be
adopted by the other and that therefore no agree-
ment resulted.1 ° Had the Respondent simply pro-
posed a contract with a traditional fixed term dif-
ferent in length from that desired by the Union, it
would have been proper to fmd, as the judge did,
that neither party acted unlawfully in adamantly
pressing its position to impasse. The Act does not
require final agreement or the granting of conces-
s We find that the parties never agreed on a contract terminable at
will. While the Respondent claimed at the 3 June meeting, and again in
its letter of 9 June, that the absence of a termination date in the draft
agreement suggested agreement to a contract terminable at will, the Re-
spondent concedes that the parties never specifically discussed or reached
agreement on the issue of the contract's duration.
9 The Regional Director refused to issue complaint on that portion of
the charge alleging that the parties had entered into a 3-year agreement
on 10 March 1980
to By the Respondent's own admission, it insisted on a terminable-at-
will contract to the point of impasse.
lions, and there is no stigma, of bad-faith bargaining
attached to pressing one's position to impasse."
But here the Respondent, on and after 4 June, in-
sisted on an agreement with no set term at all.
The Board has long held- that absent any unlaw-
ful or reasonable economic justification, a party's
unwillingness to enter into a contract for a fixed
term raises in and of itself a presumption that the
party is not bargaining in good faith.12 This is so
because the primary objective of collective bar-
gaining, as it is envisioned by the Act, is to stabi-
lize labor relations for periods of reasonable dura-
tion.13 The only explanation of record for the Re-
spondent's "final offer" of a terminable-at-will con-
tract is that such would be "an appropriate term"
given the general nature of other contractually
agreed-on economic provisions. This justification is
neither lawful nor reasonable.
The Act will not permit one party to insist, as a
condition precedent to entering into a collective-
bargaining agreement, that the other party to the
negotiation agree to a provision or take some
action_ that is unlawful or inconsistent with the
basic policy of the Act.14 Thus, it violates the Act
for a party to create a bargaining impasse by insist-
ing on an unlawful condition of employment or a
term that contravenes the fundamental principles of
the Act. Here, the Respondent demanded to im-
passe that the Union agree to a contract provision
squarely in conflict with the basic principles of the
Act. Accordingly, we fmd, as the complaint al-
leges, that the Respondent, since 4 June 1980, has
failed to bargain in good faith in violation of Sec-
tion 8(a)(5) and (1) of the Act by persistently pro-
posing to the point of impasse that the contract be-
tween the parties be terminable at will. 1 s
2. The General Counsel urges that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by
unilaterally implementing certain changes in the
terms and conditions of employment of unit em-
ployees where a lawful impasse has not occurred
after good-faith bargaining. Specifically, the Re-
spondent is alleged to have unilaterally improved
the medical insurance program of employees on 15
September 1980; effective 5 January 1981, granted
unit employees the customary annual wage increase
given to other employees; and, also on 15 January
11 Maritime Union (Texas Co.), 78 NLRB 971, 981 (1948).
12 Armour & Co., supra, Chicago Typographical Union, supra, 86 NLRB
at 1040.
18 Chicago Typographical Union, 86 NLRB at 1043
14 Maritime Union, supra at 981-982
15 The judge, in essence, found that the Respondent's conduct is not
unlawful because an agreement might have, been reached had the Union
not insisted on a 3-year contract We disagree. The Union satisfied its
bargaining obligation. The Respondent, on the other hand, as we found
above, failed to do so.
MASSILLON COMMUNITY HOSPITAL 677
1981, increased the shift differential paid to all em-
ployees, including those in the bargaining unit. The
Respondent contends that since its unilateral
changes were initiated after the above-discussed
deadlock in negotiations, and were consistent with
the contract provisions tentatively agreed on by
the parties before impasse occurred, its unilateral
actions are not unlawful. The General Counsel as-
serts that since impasse was reached as a result of
the Respondent's unlawful demand for a termina-
ble-at-will contract, it cannot be relied on to justify
the Respondent's unilateral action. For the reasons
set forth below, we find merit to the General
Counsel's position. 1 6
It is well settled that "there can be no legally
cognizable impasse, i.e., a deadlock in negotiation
which justifies unilateral action, if a cause of the
deadlock is the failure of one of the parties to bar-
gain in good faith." 17 Here, we have found that on
and after 4 June 1980, the Respondent violated its
duty to bargain by insisting that the Union accede
to a contract terminable at will, a provision that by
itself evinces failure to bargain in good faith. Based
on this fact, we find that the Respondent's post-
deadlock unilateral changes in medical insurance,
wage rates, and shift differential were not justifi-
able and that by implementing such changes the
Respondent violated Section 8(a)(5) and (1) of the
Act.
3. We agree with the judge's finding that the Re-
spondent violated Section 8(a)(1) of the Act by de-
nying employee Paul Lab's request for his union
representative to be present during an investigatory
interview that Lab could reasonably have believed
might result in disciplinary action. 18 However,
contrary to the judge, and consistent with Taracorp
Industries,19 we find that the Respondent did not
violate Section 8(a)(1) and (3) by suspending and
discharging Lab based on information obtained
during the unlawful interview and that a make-
whole remedy would be inappropriate. Lab was
not disciplined for asserting his Weingarten rights at
the interview. Rather, as the judge found, Lab was
disciplined for just cause for engaging in defiant
and deliberately insubordinate conduct. Since Lab's
discipline was not itself an unfair labor practice, we
find the remedial restrictions imposed by Section
16 The General Counsel further contends , as to the shift differential,
that the changes made by the Respondent did not conform with any
wage provision of the tentative agreement Based on our finding that no
legal impasse was reached , it is irrelevant whether the Respondent's
changes in this regard were consistent with the tentative agreement of
the parties We therefore find it unnecessary to pass on this contention of
the General Counsel
17 Marine & Shipbuilding Workers (Bethlehm Steel) v NLRB, 320 F 2d
615, 621 (3d Cir 1965)
1e NLRB v. J. Weingarten, 420 U S. 251 (1975)
ie 273 NLRB 221 (1984)
10(c) of the Act preclude us from providing a
make-whole remedy for Lab.20 Consequently, we
shall order the Respondent to cease and desist from
engaging in conduct in violation of the Weingarten
rule.21 In light of our findings, we shall issue an
amended remedy, amended Conclusions of Law,
and a new Order and notice to employees.
AMENDED REMEDY
Having found that Respondent violated Section
8(a)(5) and (1) of the Act by failing in its duty to
bargain in good faith with the Union regarding the
terms and conditions of employment of unit em-
ployees and by unilaterally changing the wages and
other benefits of unit employees, we shall order the
Respondent to cease and desist from such unfair
labor practices.
Since the changes in the medical insurance pro-
gram, wages, and shift differential were all im-
provements in terms and conditions of employment
made in violation of the Act, we shall order the
Respondent to rescind these changes only if the
Union, as the employees' exclusive bargaining rep-
resentative, requests the same. Absent such a re-
quest, and to avoid use of the Board's processes to
deprive employees of benefits already conferred,
this Order is not to be construed as requiring the
Respondent to rescind such benefits.
Additionally, to remedy the finding that the Re-
spondent breached its duty to bargain with the
Union, we shall order the Respondent, on request,
to bargain in good faith with the Union and, if an
agreement is reached, to embody such agreement
into a written and signed collective-bargaining
agreement.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge's Conclu-
sions of Law 4 and 10.
"4. By failing and refusing to bargain in good
faith by insisting to impasse on a contract termina-
ble at will, and by implementing changes in wages
and other benefits for its employees where an im-
passe has not occurred after good-faith bargaining,
the Respondent has violated Section 8(a)(5) and (1)
of the Act.
" 10. The Respondent has not violated the Act by
using information obtained during an unlawful in-
vestigatory interview to suspend and discharge em-
ployee Paul Lab, or by any other conduct."
20 Id
21 Member Johansen concurs in the finding that a make-whole remedy
is not appropriate where an employee has been disciplined for lawful rea-
sons
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that
the Respondent , Massillon Hospital Association
d/b/a Massillon Community Hospital , Massillon,
Ohio, its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Interrogating its employees concerning the
union activities of other employees.
(b) Threatening its employees with retaliation be-
cause they engage in union activities.
(c) Failing and refusing to bargain in good faith
with International Union of Operating Engineers,
Local Union 589, AFL-CIO, the certified collec-
tive-bargaining representative of its employees in
the following appropriate unit:
All maintenance and powerhouse employees
employed by the Employer at its Massillon,
Ohio, facility but excluding all registered
nurses, physicians, service employees, profes-
sional employees , guards and supervisors as
defined in the Act, and all other employees.
(d) Changing unit employees' terms and condi-
tions of employment where an impasse has not oc-
curred after good-faith bargaining.
(e) Failing and refusing to provide the above-
named Union, on request, with information rele-
vant to its status as bargaining representative.
(f). Failing and refusing to permit employees to
have a union representative present during investi-
gatory interviews that may result in discipline to
the employees.
(g) In any like or related manner interfering
with, restraining, or coercing its employees in 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) Furnish to the Union the names and addresses
of all employees in the bargaining unit together
with such information as will enable the Union to
correlate these names with job classifications and
other information already furnished.
(b) On the Union's request, rescind the unilateral
changes in the unit employees ' medical insurance
program, wages, and shift differential implemented
unilaterally.
(c) On request, bargain in good faith with the
above-named Union regarding the terms and condi-
tions of employment of unit employees and, if an
agreement is reached, incorporate such agreeement
into a written and signed collective-bargaining
agreement.
(d) Post at its place of business in Massillon,
Ohio, copies of the attached notice marked "Ap-
pendix."22 Copies of the notice, on forms provided
by the Regional Director for Region 8, after being
signed by the Respondent 's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
22 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 "
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.
WE WILL NOT interrogate our employees about
the union activities of other employees.
WE WILL NOT threaten our employees with re-
taliation for engaging in union activities.
WE WILL NOT fail and refuse to bargain in good
faith with International Union of Operating Engi-
neers, Local Union 589, AFL-CIO, the certified
collective-bargaining representative of our employ-
ees in the following appropriate unit:
All maintenance and powerhouse employees
employed by us at our Massillon, Ohio, facility
but excluding all registered nurses, physicians,
service employees , professional employees,
guards and supervisors as defined in the Act,
and all other employees.
WE WILL NOT change the terms and conditions
of employment of our employees where an impasse
has not first occurred after good-faith bargaining.
WE WILL NOT fail and refuse to provide the
above-named Union, on request, with information
relevant to its status as bargaining representative.
WE WILL NOT fail and refuse to permit employ-
ees to have a union respresentative present during
interviews that may result in discipline to the em-
ployees.
MASSILLON COMMUNITY HOSPITAL 679
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 furnish the Union with the names and
addresses of unit employees together with such in-
formation as will enable the Union to correlate the
names with job classifications and other informa-
tion already furnished.
WE WILL, on the Union's request, rescind the
unilateral changes in the employees' medical insur-
ance program, wages, and shift differential.
WE WILL bargain in good faith with the Union
regarding the terms and conditions of employment
of unit employees and, if agreement is reached, in-
corporate such agreement into a written and signed
collective-bargaining agreement.
MASSILLON HOSPITAL ASSOCIATION
D/B/A MASSILLON COMMUNITY HOS-
PITAL
Kathy Wireman, Esq. and Allan Binstock, Esq., for the
General Counsel.
Michael J. Shershin Jr., Esq., and Carol Sue Nelson, Esq.
(Constangy, Brooks & Smith) of Atlanta, Georgia, for
the Respondent.
Gary R. Scadden, of Columbus, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge.
The original charge in this case (Case 8-CA-13541) was
filed on February 6, 1980, by the International Union of
Operating Engineers, Local Union 589, AFL-CIO (the
Union), alleging that Massillon Community Hospital (the
Hospital, or Respondent) had first suspended and then
discharged an employee named Paul Lab on account of
his activities on behalf of the Union. On May 21, 1980,
the Regional Director for Region 8 of the National
Labor Relations Board, issued a complaint alleging that
the Respondent had violated Section 8(a)(1) and (3) of
the National Labor Relations Act, 29 U.S.C. § 151 et
seq.
Case 8-CA-13790 was filed by the Union on April 30,
1980, alleging several violations of Section 8(a)(1) and (3)
of the Act. Thereafter, on June 13, 1980, the said Re-
gional Director issued another complaint against the
Hospital alleging several instances of restraint and coer-
cion in violation of Section 8(a)(1) of the Act. On Octo-
ber 2, 1980, the Acting Regional Director issued an
order consolidating these two cases for hearing.
Then, on October 16, 1980, the Union filed a charge in
Case 8-CA-14306 alleging that the Hospital was in vio-
lation of Section 8(a)(1) and (5) of the Act by its refusal
to sign an agreed-to collective-bargaining agreement. An
amended charge to this same effect was filed by the
Union on November 20, 1980. On November 21, 1980,
the Regional Director issued an order consolidating
these three cases , and a consolidated complaint alleging a
refusal to bargain on the part of the Hospital in that it
had unlawfully bargained to impasse , together with the
alleged unfair labor practices mentioned above.
On January 16, 1981, and again on February 2 and 23,
and on March 18, 1981, in Case 8-CA-14545, the Union
filed charges against the Hospital , this time alleging that
the Hospital had unlawfully refused to bargain with the
Union concerning wages , hours, and conditions of em-
ployment. As a result of these charges , a second amend-
ed complaint was issued by the Regional Director on
March 20, 1981.
However, a new charge was filed by the Union on
March 18 , in Case 8-CA-14705, alleging that the Hospi-
tal had unlawfully failed to supply information . This last
charge was amended on April 7, 1981, and led to the is-
suance of a third amended complaint by the said Region-
al Director on April 27, 1981.
The Hospital , through its attorneys, filed answers to
all of these complaints , denying the commission of any
unfair labor practices.'
Pursuant to notice set forth in the third amended com-
plaint , a hearing was held before me at Massillon, Ohio,
on May 11 and 12 , 1981,2 at which time all parties were
t In its answer to the third amended complaint the Hospital denied
that the unit alleged therein was an appropriate unit . The record in this
case shows that the Hospital and the Union entered into a Stipulation for
Certification upon Consent Election, that the Union won the election and
was certified as the bargaining representative for the employees in a unit
identical to the unit alleged in the complaint as appropriate ; and that the
Hospital never thereafter questioned the appropriate nature of the unit,
while engaging in a number of bargaining sessions I therefore find that
the Hospital's answer denying the allegations that the unit is appropriate,
that the Union has been designated as exclusive bargaining representative
for the employees in the unit , and that the Union is the exclusive repre-
sentative for those employees is frivolous, and I order that the answer to
paragraphs 8, 10, and 11 of the complaint be stricken.
2 At the opening of the hearing the General Counsel moved to amend
the complaint further by revising that paragraph of the third amended
complaint dealing with Respondent's alleged failure to provide informa-
tion to the Union as required by law Over Respondent 's Objection, I al-
lowed this amendment
Then, under date of June 27, 1981, at the same time as her brief was
submitted, the General Counsel moved again to amend that complaint,
this time alleging an additional alleged threat made to an employee by a
representative of Respondent The Respondent filed an opposition to this
motion
The Rules and Regulations of the National Labor Relations Board,
Sec 102 17 provides that a complaint , "may be amended on such terms
as may be deemed just . by the administrative law judge designated to
conduct the hearing." In this case the incident that gave rise to the ad-
mendment occurred when a witness called by the General Counsel testi-
fied about a statement by one of Respondent's supervisors It was evident
that all parties were surprised by this testimony, but that is not unusual in
a trial , when testimony is often contrary and unpredictable , and docu-
ments may frequently become two-edged weapons What is unusual here
is that the General Counsel did not amend the complaint during the hear-
trig, but chose to wait until the briefs were due to make the amendment
Under these circumstances it is possible that Respondent may have been
misled into failing to litigate the issue, or to treat the matter in its brief It
is also true in this case that the incident covered by the proposal amend-
ment exactly duplicates another allegation in the complaint where exactly
the same alleged threat was made by the same supervisor to another em-
ployee Thus the remedy would not be varied or enlarged by a finding
based on the proposed amendment.
For these reasons I find that the motion to amend the complaint filed
on June 27 , 1981, would not serve the interest of justice and this motion
is denied
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented, and had the opportunity to present testimo-
ny and documentary evidence, to examine and cross-ex-
amine witnesses, and to argue orally. Following the con-
clusion of the hearing the Hospital and the General
Counsel submitted briefs, which have been carefully con-
sidered.
On the entire record in this case, including my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, Massillon Hospital Association,
doing business as Massillon Community Hospital, is a
not-for-profit corporation established under the laws of
the State of Ohio, with its principal office and place of
business in Massillon, Ohio, where it is engaged in the
operation of a hospital providing health care. The com-
plaint alleges, the answer admits, and I fmd that the Re-
spondent is an employer engaged in 'commerce within
the meaning of Section 2(6) and (7) of the Act.
The facts also show, and I fmd that the Respondent is,
a health care institution within the meaning of Section
2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I fmd
that International Union of Operating Engineers, Local
Union 589, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union, as noted above, was certified on July 10,
1979, as the exclusive bargaining representative for the
employees in a unit described as:
All maintenance and powerhouse employees em-
ployed by the Employer at its Massillon, Ohio facil-
ity but excluding all registered nurses, physicians,
service employees, professional employees, guards
and supervisors as defined in the Act, and all other
employees.
The Union then drew up a list of proposals (in the form
of a single sheet of paper, rather than in the form of an
entire proposed contract) and commenced negotiations
with representatives of the Hospital in the latter part of
August 1979. A number of negotiation sessions were held
from August 1979 to January 3, 1980, between the Hos-
pital, represented by Herb Rogers, director of personnel,
and Christopher Mitchell, a lawyer associated with the
firm of Constangy, Brooks and Smith; and the Union by
Assistant Business Manager Gary R. Scadden and an em-
ployee committee. 3
8 The facts concerning the negotiations, the strike, and the poststrike
history of bargaining are not in dispute I have drawn the facts on these
issues from the testimony of Scadden and Mitchell and from a series of
joint exhibits agreed to by the parties.
At the January 3 meeting, according to a letter from
Mitchell to Scadden dated January 10, 1980, there were
five issues dividing the parties. These were ( 1) union
shop, (2) unlimited arbitration, (3) limitations on union li-
ability for unauthorized strikes, (4) 100-percent payment
by the Hospital for dependent hospitalization coverage,
and (5) wages based on parity to other hospital employ-
ees in 1980 and 1981. Mitchell stated that the Union's po-
sition was that if these proposals were accepted, the
Union would agree to other proposals made by the Hos-
pital and they could "conclude the negotiations with a
three-year agreement." This letter concluded by stating
that the Hospital agreed to items 3 and 5, but not to
items 1, 3, and 4.
This was not agreeable to the Union and, on March 3,
presumably after giving appropriate notice, the Union
struck.
During the strike, negotiations continued between
Mitchell, the Union's business manager Norman O.
Malinke, and its regional director, Duane W. Mayo. Nei-
ther Malinke nor Mayo testified in this proceeding, but
agreements were reached on the three remaining issues
in a telephone conversation between Mitchell and Mayo
on March 19, 1980. Malinke sent a telegram to Mitchell
on March 20 outlining his understanding of those agree-
ments, without, however, specifying the term of the con-
tract.
Mitchell, in turn, wrote to Malinke on March 20, in re-
sponse to Mahnke's telegram, enclosing, draft language of
the previously disputed points, and indicating his assump-
tion that the language of the telegram meant that all
other portions of the contract were accepted by the
Union "as they stood at the last meeting prior to the be-
ginning of the strike on March 3." Mitchell concluded
by advising that he would "proceed to prepare a copy of
the Agreement for signature by all parties." Again, there
was no reference to, the term of the agreement. Mitchell
proceeded to prepare a draft agreement, which was
transmitted some time later to the Union. The document
contained no expiration date.
B. The Alleged Refusal to Bargain
1. The terminable-at-will proposal
On reviewing the proposed agreement , Gary Scadden
noticed what he decribed in his testimony as seven
errors. Scadden called the Hospital and set up a meeting
with Rogers and Mitchell on June 3. All the matters in
question, with the exception of the expiration date of the
contract, were resolved at that meeting. On the latter
point, Scadden took the position that a 3-year term had
been agreed on, and that there was to be no discussion
or further negotiation on that subject. He based this view
on the fact that the Employer's first wage offer in nego-
tiations had been a 3-year proposal. Mitchell responded
that the parties had either a contract with no fixed term,
as indicated 'in the draft then under discussion, or they
had no contract at all. He further advised Scadden to
check the point with his own lawyer.
Mitchell followed up on this meeting by writing to
Scadden under the date of June 4 noting those areas on
MASSILLON COMMUNITY HOSPITAL
which the parties had agreed at the June 3 meeting. Re-
ferring to the question of duration, Mitchell reviewed the
history of the negotiations, stating that the Hospital had
indeed initially made a 3-year wage proposal, but that
proposal had been "totally rejected" by the Union. The
Union's subsequent wage proposal, tied to the wage rates
granted other nonunion employees, was accepted by the
Hospital, but this proposal had no term of years. In fact,
in Mitchell's view, there was no further mention of the
subject of duration in all the subsequent negotiations, and
no "evidence of agreement on this point."
Up to this statement, Mitchell's June 4 letter accords
with the facts in the case. There had been an offer by the
Hospital of a 3-year wage package. The rejection of this
by the Union removed both the wage portion and the 3-
year portion of the offer from the table: From there the
evidence shows no further consideration of the element
of duration by the parties. It does not follow from this
state of facts that the absence of agreement translated
into a terminable-at-will contract, as stated by Mitchell. in
his June 4 letter. There being no agreement on the term,
the parties had no contract at all. Mitchell himself hinted
at this conclusion after outlining the Union's position that
the parties had agreed to a 3-year contract, finally stating
that as the Union disagreed with the Hospital's position,
they had no contract and were at an impasse . He again,
as he had at the June 3 meeting, urged Scadden to con-
sult the Union's attorney and to advise the Hospital re-
garding whether the Union would sign the Hospital's
proposed terminable-at-will contract.
Scadden's reply to this letter took the form of a mail-
gram dated June 5, in which he restated the Union's po-
sition that Mitchell's January 10 letter and the exchange
of telegrams between Michell and Malinke on March 20
showed that the parties had agreed to a 3-year term. To
this Mitchell replied by letter dated June 9, recapitulat-
ing his position and requesting that the Union communi-
cate with him if Scadden had "some suggestion for
breaking the impasse."
The Union never responded to this June 9 letter,
choosing instead to file the charge in Case 8-CA-14306
on October 16, 1980, alleging that the parties had entered
into a 3-year agreement on March 10, 1980. The Region-
al Director for Region 8 declined to issue a complaint on
this portion of the charge but did issue a complaint alleg-
ing that the Hospital had "demanded to impasse a con-
tract which is terminable at will and has refused the
Union's request that said contract have a lawful fixed
period of duration."4
The facts do not present the issue in such stark terms.
It is true that the Hospital did demand a terminable-at-
will contract, but the impasse that ensued arose not only
from this demand, but from the Union's contrary insist-
ence that the parties had previously agreed to a 3-year
contract. This contention, as'I have noted, was found to
be without merit by the Regional ' Director and is not at
issue here. But by insisting ` on its view of the facts and,
by Scadden's own admission, refusing to discuss any al-
ternative, the Union created the impasse in equal or
greater measure than did the Hospital. An impasse, after
' Third amended consolidated complaint, par. 12(B).
681
all, is a state of things in which both parties to a bilateral
negotiation have taken positions from which they say
they will not recede. There is no indication here beyond
the statements in Mitchell's letters of June 4 and 9 of
what the Hospital's position would have been ' if the
Union had agreed to any discussion at all of the duration
of the, contract on June 3 or thereafter.
In these circumstances, while I consider Mitchell's
proposal at the June 3 meeting and his letters on June 4
and' 9 somewhat disingenous in view of the facts in this
case, I cannot find that Respondent's proposal for a ter-
minable-at-will contract to be the controlling factor in
the impasse that followed and I do not fmd that the facts
here come within the ambit of Chicago Typographical
Union, 86 NLRB 1041 (1949). Thus I find that Respond-
ent has not violated Section 8(a)(1) and (5) by proposing
a terminable-at-will contract.
2. The unilateral changes
At the hearing the parties entered into a stipulation of
fact stating that the Hospital had changed its medical in-
surance program on September 15, 1980; effective on
January 5, 1981, granted a wage increase to all of its em-
ployees as it had for each of the past 4 years; and also on
January 5, 1982, had increased the shift differential for
all of its employees. The changes in health insurance and
wage increases were alleged by 'the General Counsel to
constitute violations of Section 8(a)(1) and (5) of the Act
because they were implemented unilterally and without
consultation with the Union.
Scadden testified that the Union had not been notified
of any of these changes. His testimony was credible and
was not denied.
The collective-bargaining agreement between the par-
ties had been entirely agreed to with the exception of the
duration, as discussed above. The contract provided that
the employees covered would receive the same wage in-
creases and the same health benefits as all other hospital
employees. Because the parties' stipulation shows that all
employees did receive, increased wages and health bene-
fits, it appears that the Hospital's actions conformed with
the tentative agreements it had made with the Union.
Thus, the changes made by the Hospital do not them-
selves constitute violations of law. Mission Mfg. Co., 128
NLRB 275 (1960).
However, the existence of these parity clauses in the
proposal contract does not give the Hospital the right to
implement them unilaterally and without discussion with
the, bargaining representative of the employees. Even in
cases when wage increases are mandated by another stat-
ute, the Board had held that there remains a duty to dis-
cuss such increases with the bargaining representative.
Union Mfg. Co., 95 NLRB 792 (1951); Southern Trans-
port, 145 NLRB 615 (1963). I fmd that by failing to
notify the Union of the changes in wages, shift differen-
tials, and health benefits in 1980 and 1981, the Hospital
has violated Section 8(a)(1) and (5) of the Act.
In separate but related allegations, the complaint stated
that in or, about May and again in December 1980 the
Respondent unilaterally changed the work assignments
of unit employees. The only evidence presented on this
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject by the General Counsel consisted of testimony
by an employee named Ted Stockham, who was hired as
a boiler operator on May 5, 1980. Stockham testified that
between May and December 1980 he did not work out-
side the boiler room, but in December there was a
change in the system for after-hours plant maintenance.
The new system required employees such as Stockham
to take calls regarding maintenance and, from time to
time, leave the boiler room to check on problems in
other parts of the Hospital. Stockman also testified that
starting in the fall of 1980 steam heat plumbing mainte-
nance work was done by employees other than those
boiler room employees who had customarily done this
work. He had never himself observed that work being
done by others.
On the basis of this testimony that, while credible
enough, was rather vague and unspecific, and that dealt
only with minor aspects of the work of the unit employ-
ees, I cannot find that the General Counsel has estab-
lished by a preponderance of the credible evidence that
Respondent violated the law by making unilateral
changes in the work assignments of unit employees.
3. The refusal to furnish information
The third amended complaint in this case contained an
allegation that the Union requested certain information,
the names and addresses of all unit employees from the
Hospital, and that since February 18, 1981, the Hospital
had refused to furnish such information. The amend-
ments to the complaint that I allowed on May 11, 1981,
allege a further request for information including not
only names of employees, but also job classifications,
wage rates, hours' of employment, and numbers of em-
ployees. The amendments to the complaint allege that
since April 28 the Respondent has refused to furnish the
requested information.
The facts of these matters are not in dispute and may
be summarized briefly. The Union had asked for and re-
ceived information and wage rate in July 1979 following
on the Union's certification of July 10, 1979. During the
strike, from March 3 to 21, 1980, a number of employees
were replaced. Scadden testified that of 24 unit employ-
ees before the strike, only 7 returned to work after
March 21. On a list furnished by Mitchell on April 28,
1981, the number of employees was given as 25 with 3
relief employees. Of these, Respondent had supplied the
names and address of 19: In explanation of its refusal to
give the names of the other employees, the Hospital,
through its attorney, Mitchell, on April 28, 1981, ex-
plained that it was protecting the "privacy rights of
those employees who objected to the disclosure of this
information." The Hospital did offer three alternatives to
the Union in lieu of the names and addresses of the re-
luctant employees. It would furnish a room at the Hospi-
tal where the Union could meet the employees, or it
would supply bulletin board space to the Union, or it
would obtain a neutral third party to transmit communi-
cations from the Union to the employees. The Union re-
jected all these alternatives. '
At the outset it is clear that the information sought;
the names and addresses of employees, the total number
of employees in the department, a list of job classifica-
tions, job descriptions, wages, and names of employees
hired or terminated after March 21, 1980, are relevant to
the Union's mission as collective-bargaining representa-
tive. Indeed the Hospital did supply all the information
other than the names and addresses of the employees
who requested that this information not be supplied. But
this gap in the information made much of the informa-
tion that was supplied essentially useless.
The missing information, names and addresses of bar-
gaining unit members, has been held by the Board to be
"presumptively relevant" to the Union's role as bargain-
ing agent . Georgetown Holiday Inn, 235 NLRB 485
(1978). Respondent has, introduced no evidence of threats
or violence to nonstriking employees or to replacments,
Shell Oil Co., 190 NLRB 101 (1971). There is no evi-
dence that supplying this information would place any fi-
nancial burden on the Hospital, ,Hecla Mining Co., 248
NLRB 1341 (1980). No reason has thus been advanced
that in any way rebuts the presumption that the names
and addresses are relevant to the Union. Thus I find that
by failing and refusing to furnish this information, the
Respondent has violated Section 8(a)(1) and (5) of the
Act. United Aircraft Corp., 181 NLRB 892 (1970), enfd.
434 F.2d 1198 (2d Cir. 1970).
C. The Alleged Threats and Interrogation
The General Counsel has alleged three separate inci-
dents of unlawful conduct by the Hospital's director of
engineering services, Robert G. Kauffman.
In the first incident an employee named Jay Charlton
testified that he underwent an evaluation in accordance
with the Hospital's customary practice sometime in No-
vember or December 1979. During this evaluation,
Charlton met with Kauffman and Maintenance Supervi-
sor Charles H. Maddern to go over Charlton's evaluation
form. When that was completed, according to Charlton,
Kauffman asked him if he had any, idea what the "other
guys wanted with bringing a union into the shop."
Charlton was concerned about revealing his own
thoughts on this subject, but replied that it was probably
for better benefits, Kauffman then said that Charlton did
not have to belong to the Union. The Hospital would
protect his rights and he could not be forced to join
against his will.
Kauffman denied asking Charlton why the employees
wanted a union, but did admit telling Charlton that the
choice of participation in union activities was his own.
Kauffman denied that he had asked Charlton about the
Union, but could not recall how the subject of the Union
arose in the conversation. Maddern did not testify about
this conversation at all.
The second and third alleged violations occurred in
the last week of February in a conversation between
Kauffman and the then chief boiler operator, Owen J.
Raber.5 Raber testified about a number of conversations
5 There is no question about Raber's status. He was a member of the
bargaining unit who participated in the strike, and was one of the seven
employees who returned after the strike. He left Respondent's employ in
August 1980
MASSILLON COMMUNITY HOSPITAL
he had with Kauffman in which Kauffman asked him'to
find out who the prounion people were . 6 The conversa-
tion at the end of February occurred as part of a meeting
with only Kauffman and Raber present . According to
Raber, Kauffman asked him if he was going to find out
for Kauffman who the people were who were pushing
for the Union . Raber said no. Kauffman also told Raber
in this conversation that anyone who went on strike
would never get back in, they would rot on the picket
line and would not get back in under any circumstances.
Kauffman could not recall this conversation , but did
mention another meeting with Raber in the last week of
February. In this instance Raber was accompanied by
two other employees , Floyd Sawyer and Carl McCalla,
and that Maddern was also -resent . Raber acted as
spokesman for the employees and told Kauffman and
Maddern that they were unhappy about the impending
strike. They expressed the hope that Kauffman and Mad-
dern would not take it, unkindly if they went on strike.
Kauffman responded that they would have to wait and
see on Monday morning.
In these instances I have relied on the testimony of
Charlton and Raber . Both impressed me as open and
candid witnesses . Their stories were straightforward and,
as former employees with nothing to gain or lose from
the outcome of this case, I found them to be credible.
Kauffman, on the other hand , impressed me as guarded
and less than candid , In the conversation with Charlton,
be did not recall how the Union was brought up, and he
did not recall the Raber meeting at all . Thus, I fmd him
unreliable as a witness and I find that the conversations
took place as described by Charlton and Raber. Having
so found , I fmd that the interrogation of Charlton, when
viewed in conjunction with the interrogation of Raber,
for no announced purpose, and with no assurances
against reprisals, constituted a violation of Section 8(a)(1)
of the Act. Charlotte Union Bus Station, 135 NLRB 228
(11962). The interrogation of Raber constitutes a second,
separate violation of Section 8(a)(1).
The threat that the strikers would rot 'on the picket
line, and would never get back in,' I fmd to be a further
violation of Section 8(a)(l). Berbiglia,' Inc., 233 NLRB
1476 (1977).
D. The Discharge of Paul Lab
Paul Lab was employed by the Hospital as chief elec-
trician from February 1, 1976, until his discharge on
February 4, 1980. Lab testified that he had opposed a
union during two unsuccessful campaigns at the Hospital,
but had become ' discouraged with management to the
point that when the Operating Engineers were organiz-
ing in 1979 he signed a card, wore a union button, and
attended all the union meetings. He had no conversations
with supervisors about the Union or his involvement in
its activities.
On January 30 , 1980, Lab had some business with a
salesman named Bob Shirey .7 Shirey asked Lab to go
s These were not alleged as unfair labor practices.
9 I find these facts based on Lab's undisputed testimony.
683
out - td " lunch with him as he had many times in the past.
Lab agreed, and as he, had in the past, went to his super-
visor, Maddern , told him he was going out to lunch and
that he would be a little bit longer than normal because
he would be with Shirey . Maddern told Lab that he had
only 30 minutes . Lab replied that Maddern knew he
could not make it in 30 minutes , to which Maddern re-
peated that he had 30 minutes . Lab then said, "I guess I
will have to get sick." Maddern told Lab that if he got
sick he would have to have a doctor 's excuse . Lab said
he did not need a doctor's slip for 4 hours, and left.
Lab had lunch with Shirey and afterwards , as he testi-
fied, felt sick, had a little diarrhea , which he had had
before , and went home. He called the secretary in the
plant operations department at the Hospital and told her
that he would just report off sick.
Maddern had informed Kauffman about his convesa-
tion with Lab, and after Lab had called in to report off
sick Maddern and Kauffman reviewed the situation. Ac-
cording to Kauffman they determined that this was a
matter of insubordination, and that if Lab did not
produce a doctor's certificate he would be suspended
pending discharge .8 Maddern testified that after learning
of Lab's call, Kauffman told Maddern that they would
address the question further when Lab came back to
work the next day . In this case I rely on Maddern's testi-
mony and find that no decision on Lab was made on
January 30.
On the next morning Lab reported to work at 6:45
a.m. and proceeded , immediately to an emergency job in
the boiler room .9 After finishing the job , Lab returned to
the electrical shop . Lab was then paged and he met
Kauffman at the entrance to the latter 's office . Kauffman
said that they had a problem and asked Lab to come into
the office with Maddern and himself. Lab said he was
going to call Paul Taylor . Kauffman asked why and Lab
replied that Taylor was his union steward. Kauffman
said they did not have a union and Lab retorted that the
Union was certified by the National Labor Relations
Board and they did have a union . Kauffman countered
by saying that they did not have a contract and that he
did not want to talk to Taylor but to Lab. Lab then
picked up the telephone and had Taylor paged . Kauff-
man again stated that he wanted to talk to Lab and not
to Taylor, then said to Lab, "Well, you are no longer on
the payroll."
At this point, Lab walked away and was soon joined
by Taylor . They had some discussion with Taylor urging
Lab to go in to see Kauffman alone, and Lab arguing
that he wanted Taylor present at the interview . Finally,
Lab agreed to meet with Kauffman without Taylor or
Maddern being present.
Lab then went into Kauffman's office. Kauffman first
asked for a doctor's slip . Lab said he did not have one,
adding that he thought Kauffman was discriminating
against him because of his union activities , Lab then, by
8 Under the Hospital's policies , discharge could be effected only by
Rogers, the director of personnel.
' As I have noted, I found Kauffman not to be a reliable witness.
Thus, I have relied in these findings of the events of January 31, 1980, on
Lab's testimony.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his own admission, became excited and began shouting
and abusing Kauffman and other management people. He
eventually left the office and went home.
The next day Lab returned to the Hospital and found
his timecard missing . Maddern informed him that he was
suspended and had to see Rogers . Lab went to see
Rogers who again asked for a doctor's slip. On Monday,
February 4, Lab again went to see Rogers, who again
asked for a'doctor's slip, saying that if he just had a doc-
tor's slip it could solve all the problems. When Lab
could not produce the doctor's slip, Rogers told him he
was discharged.
While 1have generally credited Lab's version of these
events, I do not credit his testimony that he was sick on
January 30. Lab's demeanor while testifying, his admis-
sion of his emotional outburst during the interview with
Kauffman on January 31, and his prior disciplinary warn-
ing on March 1, 1979, for another emotional flareup, in-
dicate clearly to me Lab's excitable and impulsive nature.
For this I conclude that he acted on impulse 1 ° and in de-
fiance of Maddern's order to him on January 30, by call-
ing in sick when in fact he was not sick. In doing this he
may well have been relying on the fact that he had
called in sick before and had not been required to furnish
a leave slip. However, Lab did not testify that the previ-
ous policy involved instances when he or anyone else
had been given direct orders to produce a leave slip for
a prospective illness . I therefore conclude and find that
Lab's action in calling in sick on January 30 was defiant
and deliberately insubordinate.
The question then becomes whether the refusal of
Kauffman to allow union representation at his meeting
with Lab on January 31 so taints the Hospital 's actions in
suspending and discharging Lab as to override Lab's
own insubordinate conduct and to warrant an order for
Lab's reinstatement and backpay.l I
Lab's conduct, as I have described, was egregious
enough, but Kauffman's words and actions on the morn-
ing of January 31, in denying first the existence of the
employees bargaining agent,, denying that the Union had
a right to be present at the interview, and refusing to
conduct the interview with the shop steward present
were equally egregious . In this case Lab had a right
guaranteed by Section 7 of the Act to request that a
union representative be present at the interview. He
asked specifically for this representation. He could have
reasonably felt that the interview had something to do
with the lunch hour incident of the previous day. There
was no question of any interference with the right of the
Hospital to take any action it chose in the absence of any
interview . Thus, on all counts, the record establishes that
the Hospital, through Kauffman's actions in refusing to
allow shop steward Taylor to be present at his interview
with Lab on January 31, committed a violation of Sec-
10 And resentment at the variance from the previous policy under
which he had been allowed to go to lunch , and to take longer than one-
half hour, with Shirey
11 Bearing in mind that the Hospital was not aware of Lab's state of
mind or intent.
tion 8(aXl) of the Act.12 NLRB v. J. Weingarten, Inc.,
420 U.S. 251 (1965).
Under the Hospital's policies, as described by Maddern
Kauffman, and Rogers, and as set out in the documents
received in evidence concerning the discharges of Lab
and Gary Edmond, the 'existence or nonexistence of a
doctor's excuse, was central, even critical, to the func-
tioning of the disciplinary process. Even as late as Febru-
ary 4, when it must have been abundantly clear to all
concerned that Lab had no doctor's excuse for his ab-
sence on January 30, Rogers was still pointing out to
Lab that if he had such an excuse, the problem could be
solved. As I understood all of this, it means to me, and I
find, that the disciplinary process of suspension and dis-
charge could not and would not have been undertaken
until the Hospital was able to determine whether or not
Lab had a doctor's excuse . The purpose of the interview
was, then, to make that determination, and when the
question was answered, to commence the disciplinary
process.
Here, Kauffman did not know that Lab had no doc-
tor's excuse until after Lab had been denied union repre-
sentation and submitted to the interview under what I
have found to be coercion. The information on which
the later discipline was based was obtained at the inter-
view which I have found to be unlawful.13
Because the information on which the Hospital pro-
ceeded to discipline Lab was obtained at this unlawful
interview, the suspension and discharge are similarly un-
lawful and in violation of Section 8(a)(1) and (3) of the
Act,-Kraft Foods, 251 NLRB 598 (1980).
The General Counsel maintains that Lab's discharge
was motivated by antiunion animus and retaliation for
Lab's union activity. There is no question that Lab was a
union adherent, and I infer and find that this was known
,to Respondent. In ' addition I have found independent
violations of Section 8(a)(1) in the interrogation of, Jay
Charlton in November or December 1979, and in the in-
terrogation of and threats to Owen Raber in February
1980. But I fail to perceive a nexus between these inci-
dents and the actions taken against Lab. Respondent has
not shown that kind articulated hostility or demonstrated
action that would infect all its conduct toward employ-
ees. I thus find that the General Counsel has not shown
by a preponderance of the credible evidence that its ac-
tions involving Lab were motivated by antiunion `animus,
12 The fact that Lab did participate in the interview without Taylor
does not require a different conclusion . Taylor's testimony, as well as
Lab's, shows that Taylor persuaded Lab to submit to the interview out of
fear of what would happen to Lab if he did not. This cannot constitute a
waiver of Lab's statutory rights.
13 1 do not consider Kauffman's remark to ' Lab before the interview
that he was "off the payroll" as significant. Nor do I read into this, as the
General Counsel does, a separate discriminatory motive in this alleged
suspension . Kauffman could as well have been speaking out of frustration
at Lab's refusal to answer his question on the doctor's excuse , or been
acting on a belief that Lab had no doctor 's excuse. In my view this single
remark does not establish a prima facie case for an, independent violation
of the law, particularly as Kauffman subsequently went to such effort to
ascertain the answer to the question of the doctor's excuse , and did not in
fact implement the suspension until he had made that determination (It.
Exh. 2).
MASSILLON COMMUNITY HOSPITAL
or any reason other than the insubordination of January
30, 1980. Wright Line, 251 NLRB 1083 (1980).
THE REMEDY
Having found that Respondent has violated Section
8(a)(1), (3), and (5) of the Act, I shall recommend that it
cease and desist therefrom and that it take ,certain affirm-
ative action designed to effectuate the policies of the
Act. Specifically, I shall recommend that Respondent:
A. Offer to Paul Lab immediate reinstatement to his
former position or, if that position is no longer available,
to a substantially equivalent position , with no loss of se-
niority or other benefits , and remove from all hospital
records any references to the disciplinary actions taken
against him on January 31 and February 4, 1980, and
made him whole for the discrimination suffered by him
by the payment to him of backpay together with interest
thereon to be computed in the manner prescribed in F.
W Woolworth Co., 90 NLRB 289 (1950) and Florida Steel
Corp., 231 NLRB 651 (1977).14
B. Forthwith furnish to the Union the names and
adresses of all bargaining unit employees , together with
such information as will enable the Union to understand
and interpret other information previously supplied to it
and bargain in good faith with the Union as the exclusive
representative here found appropriate for a period of 60
days following the furnishing of the information.
C. On request, bargain in good faith with the Union
concerning any changes in wages or other benefits
awarded ' to employees in the bargaining unit here found
appropriate during the period from March 21 , 1980, to
the date of this Order.
'CONCLUSIONS OF LAW
1. 'Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
14 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
685
4r
- and a 'health care institution within the meaning of Sec-
tion 2( 14) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union is the exclusive bargaining representative
of employees in the following appropriate unit:
All maintenance and powerhouse employees em-
ployed by the Employer at its Massillon , Ohio, fa-
cility but excluding all registered nurses, physicians,
service employees, professional employees , guards
and supervisors as defined in the Act , and all other
employees.
4. By failing to notify or bargain with the Union about
changes in wages or other benefits for its employees, Re-
spondent has violated Section 8 (a)(1) and (5) of the Act.
5. By failing and refusing to furnish relevant informa-
tion to the Union, Respondent has violated Section
8(a)(1) and (5) of the Act.
6. By interrogating its employees about the , union sym-
pathies of other employees the Respondent has violated
Section 8(a)(1) of the Act.
7. By threatening its employees the Respondent has
violated Section 8(a)(1) of the Act.
8. By failing and refusing to allow ,one of its employ-
ees to have union representation at an investigatory
interview the Respondent has violated Section 8(a)(1) of
the Act.
9. By using information obtained at an unlawful inves-
tigatory interview to suspend and discharge one of its
employees, the Respondent has violated Section 8(a)(1)
and (3) of the Act.
10. Respondent 'has not violated the Act in any other
manner.
[Recommended Order omitted from publication.]