Middletown Hospital Association

National Labor Relations Board - Board Decisions

Dec 29, 1986

282 N.L.R.B. 541 (N.L.R.B. 1986)

MIDDLETOWN HOSPITAL ASSN. 541
Middletown Hospital Association and Ohio Nurses
Association. Cases 9-CA-14866, 9-CA-15195,
and 9-RC-13186
29 December 1986
DECISION AND ORDER
By CHAIRMAN DOTsoN AND MEMBERS
JOHANSEN AND BABSON
On 8 January 1982 Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Respondent, Middletown Hospital Association (the
Hospital), filed exceptions and a supporting brief,
and the General Counsel and the Charging Party,
Ohio Nurses Association (ONA or the Union),
filed briefs in support of the judge's decision. On
14 July 1982 the Board issued an Order remanding
the case to the judge for the purpose of receiving
additional evidence and reconsidering the issue of
the appropriate bargaining unit in light of the
Board's decision in Newton- Wellesley Hospital, 250
NLRB 409 (1980).1
On 25 July 1983 the judge issued the attached
supplemental decision. The Hospital filed excep-
tions and a supporting brief, and the General Coun-
sel and ONA filed answering briefs. On 27 Septem-
ber 1984 the Board issued an Order remanding the
case to the judge for further consideration in light
of the Board's intervening decision in St Francis
Hospital, 271 NLRB 948 (1984).
On 24 May 1985 the judge issued the attached
second supplemental decision.2 The ONA filed ex-
ceptions and a supporting memorandum, the Hospi-
tal filed a brief in support of the judge's second
supplemental decision, and the General Counsel
filed a statement of position.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decisions and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified by this Decision and
Order.
This case arises from an election campaign that
resulted in the Hospital's registered nurses voting
against representation by the ONA by a tally of 65
for the Union and 121 against, with 7 challenged
ballots. In his initial decision, the judge found the
petitioned-for unit of all registered nurses em-
ployed by the Hospital to be an appropriate unit
I On 12 October 1982 the Hospital filed a motion to clarify or expand
the order reopening the record . On 29 October 1982 the Board issued an
order granting the Hospital 's motion in part and denying it in part.
for collective bargaining. He also found that the
Hospital had committed numerous violations of
Section 8(a)(1) of the National Labor Relations Act
and had engaged in objectionable conduct that af-
fected the election, and he concluded that a bar-
gaining order was necessary to remedy the Hospi-
tal's unlawful conduct. He also found that the Hos-
pital had not engaged in certain other alleged in-
stances of unfair labor practices and objectionable
conduct.
In his supplemental decision, the judge applied
the standard set forth in Newton- Wellesley Hospital
and adhered to his initial fording that the peti-
tioned-for registered nurse unit was appropriate. In
his second supplemental decision, the judge applied
the standard set forth in St. Francis Hospital and
found the petitioned-for unit of registered nurses to
be inappropriate for collective bargaining. The
judge declared the election to be a nullity, as it was
conducted in an inappropriate unit, and he dis-
missed the ONA's objections to the election and
declined to issue a bargaining order. The judge re-
iterated the unfair labor practice findings set forth
in his initial decision and ordered the Hospital to
remedy the violations that he found it had commit-
ted.
The Hospital excepts to all the violations found
in the judge's decision. (These violations were reit-
erated in the judge's second supplemental decision.)
The ONA excepts to the judge's conclusion that
the petitioned-for unit was inappropriate and his
failure to sustain the ONA's election objections and
to issue a bargaining order. The General Counsel
filed no exceptions but urges the Board to issue a
bargaining order if the Board finds a bargaining
unit to be appropriate in which the ONA has a suf-
ficient interest.
We agree with the judge's unit determination,
and we adopt the judge's decision as modified by
his second supplemental decision, 3 except as set
forth below.
1. In adopting the judge 's unit determination, we
rely an our decisions in North Arundel Hospital
Assn., 279 NLRB 311 (1986), and Keokuk Area Hos-
pital, 278 NLRB 242 (1986), finding units com-
posed of all professional employees to be appropri-
ate, rather than units composed only of registered
nurses . In his supplemental decision, the judge
made a finding that there was "no significant func-
tional integration between the registered nurses and
other professionals" employed by the Hospital.
(Infra at 577.) His second supplemental decision in-
cludes a statement that "[e]ach professional em-
2 On 31 May 1985 the judge issued an erratum correcting a typo- 8 The judge's second supplemental decision implicitly adopts the dis-
graphical error in his second supplemental decision. cussion of the unfair labor practices contained in his decision
282 NLRB No. 79
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee of this employer, possesses special knowl-
edge and skills that are essential to the performance
of duties functionally integrated into the Hospital's
patient care system." (Infra at 582.) The ONA con-
tends that the former statement contradicts the
latter one and tends to undermine the judge's unit
determination . We disagree . The latter statement
merely mentions that the professionals' duties were
functionally integrated into the patient care system,
while the former statement declares that the em-
ployees themselves were not significantly function-
ally integrated . Additionally, the judge's supple-
mental decision acknowledges that there is some
functional integration between the registered nurses
and the other employees . Moreover, the judge was
conducting a different inquiry in his second supple-
mental decision from that in his supplemental deci-
sion.
In the supplemental decision , the judge was de-
termining whether the Hospital 's registered nurses
shared a community of interest sufficient to find
that they composed a unit appropriate for collec-
tive bargaining . In his second supplemental deci-
sion, the judge was determining whether there was
such a disparity of interests between the Hospital's
registered nurses and its other professional employ-
ees to warrant a finding that the Hospital 's regis-
tered nurses and other professional employees to-
gether could not compose a unit appropriate for
collective ' bargaining . Thus, it was logical for the
judge in his supplemental decision to focus on how
far from complete was the functional integration of
the registered nurses and the other professionals,
and in his second supplemental decision to focus,
instead, on whether there was present at least some
functional integration between these groups.
Finally, the judge's conclusion in his second sup-
plemental decision-that there was 'not a disparity
of interests between the Hospital 's registered nurses
and its other professional employees sufficient to
warrant fording a unit composed solely of regis-
tered nurses appropriate for collective bargaining-
was premised largely on factors other than the
degree of functional integration between the two
groups, such as similarity of pay and benefits and
centralized labor relations and personnel policies.
Thus, 'even if the judge had been somewhat off the
mark in his assessment of this factor , it would not
be enough to warrant a reversal of his ultimate
conclusion.
The ONA also excepts to the judge 's finding, in
his second supplemental decision , that the frequen-
cy of contact between the Hospital 's registered
nurses and other professionals was as great as that
between maintenance and service employees in St.
Francis Hospital, supra. The ONA notes that the
judge's supplemental decision characterized the
registered nurses' contact with other professionals
as being "routine and intermittent," while the
amount of contact between service and mainte-
nance workers was characterized as being "signifi-
cant and frequent" by the Board in St. Francis. We
are not persuaded, however, that the differences
between these characterizations is enough to war-
rant reversal of the judge's conclusion that "the
level of contact between registered nurses and
other professional employees of Respondent is not
so, negligible that a separate unit of registered
nurses is„thereby justified." (Infra at 581.) It is clear
from the record that there is a meaningful degree
of contact between the Hospital's registered nurses
and other professionals, such as physical therapists,
speech therapists, occupational therapists, social
workers, and medical technologists.
2. The judge concluded4 that during question-
and-answer sessions following speeches to several
groups of nurses Kay Anderson, the Hospital's di-
rector of nursing , made unlawful promises of bene-
fits by stating that she was not Nadine On (an un-
popular former director of nursing whom Ander-
son had recently replaced), she would make
changes if given a chance, and she needed time to
make these changes. For the following reasons, we
do not agree that these statements violated Section
8(a)(1) of the Act.
In National Micronetics, 277 NLRB 933 (1985),
during an election campaign, a supervisor told an
employee that the employer was a small company,
it was still growing, and there was a lot to look
forward to., The supervisor additionally stated that
he was aware that the employer had neglected to
keep up with other companies in the past, and he
asked the employee to give the employer a second
chance to see if they could make things better. In a
similar vein, in that case the employer's vice presi-
dent, at a meeting with employees, told them that
he was new in his position, he was really a decent
individual, and they should give him some time.
The Board concluded that these statements were
too vague to rise to the level of unlawful promises
of benefits.
We find that Anderson's statements are similar to
those made in National Micronetics. Moreover, it
does not appear that Anderson's statements that
she was not Nadine On and would make changes
if given a chance were made in response to ques-
tions raising employee complaints about specific
working conditions. Finally, we note that Ander-
son's speeches that preceded the question-and-
answer sessions were free of unlawful comments,
4 See text accompanying fn. 34 of the judge's decision.
MIDDLETOWN HOSPITAL ASSN.
and nothing else she said during `the question-and-
answer sessions was alleged to have violated the
Act, Accordingly, we reverse the judge's conclu-
sion that Anderson's statement violated Section
8(axl) of the Act.5
3. The judge concluded6 that Nurse Manager
Mary Aim Meredith unlawfully threatened employ-
ees at a meeting by stating that "when you sit
down at a bargaining table, both sides sit down at a
zero point; the hospital doesn't expect work, [em-
ployees] don't expect wages, benefits, etc." Taken
literally, this statement appears to say that when
bargaining starts the employees would cease work-
ing and the Hospital would cease paying employ-
ees or providing benefits to them. This is such a
nonsensical statement that we do not believe that
employees reasonably could have taken it literally.
]Furthermore, whatever its intended meaning may
have been, we conclude that the statement is too
unclear to support the judge's fording that the
statement constituted an unlawful threat of loss of
work and benefits if the employees selected the
ONA to represent them. We therefore dismiss the
allegation that this statement violated Section
8(axl) of the Act.
4. The judge concluded": that Clinical Coordina-
tor Wilma Popplewell engaged in unlawful solicita-
tion of grievances when, after asking nurse Debo-
rah ` Gentry if money was one of the problems,
Popplewell stated to -Gentry that if employees
Would talk their problems over with, their supervi-
sors most of them could be settled within the unit.
Although we agree with the judge that Popplew-
ell's question about money constituted an unlawful
,interrogation, , we ford it was improper for, the
judge to conclude that Popplewell's statement
about employees talking over problems with super-
visors was an unlawful solicitation of grievances.
The General Counsel never alleged that Popple-
well had engaged in solicitation of grievances, and
evidence concerning Popplewell's statement about
employees' talking over problems with their super-
visors came out incidently during Gentry's testimo-
6 The cases cited by the judge in finding Anderson 's statements unlaw-
ful are inapposite . In S E Industriee, 252 NLRB 1058 , 1076 (1980), a
statement by the employer's president asking employees to "give me the
year to prove myself to you" was made in a letter in which the employ-
er's president also told employees that "you will always do better with
me without a union ." The letter also was found to contain a threat of
plant closure . As noted above , Anderson's other remarks made at the
time of the alleged unlawful promises of benefits were free of proscribed
statements. Reliance Electric Co., 191 NLRB 44 (1971), is also distinguish-
'able. There the employer called meetings at which it solicited employee
grievances and promised to "adjust" or "look into" at least some of them.
Although, as discussed in sec. 8 below, solicitation of grievances played a
large role in the Hospital 's campaign against the ONA, Anderson 's state-
ments , at issue here were not made at meetings in which grievances were
solicited.
See sec. WA, 15 of the judges decision.
See text accompanying fn. 56 of the judge's decision.
543
fi j' about Popplewell's interrogation of her. The
Hospital lacked notice that any statement by
Popplewell constituted an alleged solicitation of
grievances, and, therefore, this issue was not litigat-
ed. Moreover, the solicitation of grievances was
not so closely related to the interrogation that it
did not need to be separately alleged in order to
provide notice to the Hospital that it was in issue.
Accordingly, we reverse the judge's conclusion
that Popplewell's statement about employees talk-
ing over problems with supervisors violated Sec-
tion 8(a)(1) of the Act.
Similarly, we do not agree that the judge proper-
ly concluded that Personnel Manager Don Barker
violated Section 8(a)(1) by telling employees at a
meeting, that the granting of benefits to part-time
employees had been delayed because of the elec-
tion.8 There was no allegation that Barker or any
representative of the Hospital had made such a
statement, and while evidence about Barker's state-
ment came out incidently in the testimony of nurse
Rhonda Cottingim, the Hospital lacked notice of
any contention that Barker's statement constituted
an alleged violation. Consequently, this issue was
not litigated. Moreover, the General Counsel's alle-
gation that the Hospital illegally granted benefits to
part-time employees after the election was not
closely related to the issue of Barker's statement
that this issue need not have been separately al-
leged. Accordingly, we reverse the judge's conclu-
sion that Barker's statement violated Section 8(a)(I)
of the Act.
5. We agree with the conclusion, in section III of
the judge's decision, that Drs. Henry Floyd, Gil-
bert Gordon, and Anthony Kokenakis were not
general agents of the Hospital, as they had privi-
leges to practice at the Hospital but were not em-
ployed by it and did not serve as officers or direc-
tors of the Hospital. We, however, do not adopt
the judge's further conclusion that the Hospital
condoned, adopted, and ratified the antiunion con-
duct of , these physicians. The judge assumes too
much in concluding, in support of this finding, that
the purpose of three labor relations consultants re-
tained by the Hospital in addressing a regular meet-
ing of the physicians' surgical section was to enlist
the physicians' in the Hospital's campaign against
the ONA. The judge's conclusion in this regard is
speculative and goes beyond the' evidence that was
adduced as to what was said at this meeting or
what the consultants' purpose was in attending.
Additionally, contrary to the judge, we do not
conclude that the statements to a nurse by Wanda
Blade, a first-level supervisor, urging the nurse to
a See text accompanying fn. 71 of the judge's decision.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
read an antiunion letter written by a physician (Dr.
William Langworthy, chief of the medical staff)
whose conduct is not in issue show that the Hospi-
tal adopted and ratified the conduct of physicians
other than Dr. Langworthy. Likewise, contrary to
the judge, we do not find that adoption and ratifi-
cation of the actions of Drs. Floyd, Gordon, and
Kokenakis was shown by the fact that prior to the
election Dr. Langworthy asked Director of Nurs-
ing Kay Anderson and Director of Nursing Spe-
cialties Karen Mehl to ascertain whether the nurses
would 'be interested in the formation of a doctor-
nurse committee and that they apparently did ask
the nurses about this subject and responded to Dr.
Langworthy. We also find equally unpersuasive the
additional facts relied on by the judge to support
his conclusion that the Hospital condoned, adopt-
ed, and ratified the conduct of Drs. Floyd,
Gordon, and Kokenakis. Accordingly, we reverse
the violations of Section 8(a)(1) found in sections
IV,A,1, 2, and 3 of the judge's decision, as they are
premised on the conduct of these physicians.
6. We do not adopt the conclusion, in section
IV,A,15 of the judge's decision, that Nurse Manag-
er Mary Ann Meredith unlawfully interrogated
nurse Mary Hackney Simmons. After Simmons
read a Board decision concerning statements by
employers and some newspaper articles on nurses'
strikes that Meredith had given her, Meredith
asked Simmons if she had any questions and said
she would not ask Simmons' opinion but it would
be fine if Simmons wanted to share her opinion. It
was clear from Meredith's statements that Simmons
was under no compulsion to express her views and
that no inference that Simmons supported the
ONA would be drawn if Simmons declined to
share her opinion. Accordingly, we reverse the
judge's holding that Meredith's comments to Sim-
mons constituted unlawful interrogation.
7. We find it unnecessary to pass on the conclu-
sion in section IV,A,13(c) of the judge's decision
that a letter from the Hospital to its nurses consti-
tuted an unlawful threat of job loss, as this allega-
tion is cumulative with the judge's finding, which
the Board adopts, of an unlawful threat of job loss
in section IV,A, 17(a) of the judge's decision.9
8. We agree with the judge that the Hospital en-
gaged in unlawful solicitation of employee griev-
ances through the Hospital's "One-in-Five" and
"Speak-Out" programs.' ° In so doing, we note that
9 Contrary to his colleagues, Member Johansen, for the reasons stated
by the judge, finds that the Respondent violated s ec. 8(a)(1) of the Act
by condoning, adopting, and ratifying the antiunion conduct of Drs.
Floyd, Gordon, and Kokenakis; by interrogating nurse Mary Hackney
Simmons; and by threatening its nurses, in a letter addressed to them,
with job loss because of their union activities.
10 See text accompanying fn. 68 of the judge's decision.
even if we accepted the Hospital's contention that
for about 12 years before the Hospital began the
"One-in-Five" and "Speak-Out" programs the Hos-
pital had held annual spring employee meetings at
which improvements in employee benefits were an-
nounced and employee complaints were solicited,
we would still reach the ' same result as did the
judge. Contrary to the Hospital's contention that
the "One-in-Five" and "Speak-Out" programs were
merely a continuation of the Hospital's prior ef-
forts, through annual employee meetings and other
means, to solicit and remedy employee complaints,
even Hospital Executive Vice President Walter
Mischley in his letter to employees announcing the
"One-in-Five" and "Speak-Out" programs charac-
terized the programs as new. That assessment was
clearly accurate, as the programs were substantially
different from prior hospital practices.
Unlike the purported annual employee meetings,
the "One-in-Five" meetings were held monthly, and
were for the stated purpose of allowing groups of
employees to discuss ideas with, and ask questions
of, members of top hospital management . Different
employees chosen at random attended each
month's meetings, and their names were posted at
least 10 days in advance so that, coworkers could
"pass along" questions to the chosen employees to
ask at the meetings. Thus, these meetings also dif-
fered from preexisting monthly departmental meet-
ings because the "One-in-Five" meetings did not
include only employees from the same department
and because, unlike the departmental meetings, the
primary purpose of the "One-in-Five" meetings
was to give employees an opportunity to ask ques-
tions of top hospital management.
The "Speak-Out" program differed from the sug-
gestion boxes previously used by the Hospital in
that, under the "Speak-Out" program, "idea boxes"
were placed abundantly throughout the Hospital
and employees systematically received written or
oral responses to the suggestions they placed in the
boxes. As detailed in the judge's decision, the Hos-
pital specifically attributed certain employee bene-
fits it introduced during the election campaign as
resulting from employee input solicited through the
"One-in-Five" and "Speak-Out" programs.
Accordingly, we agree with the judge's conclu-
sion that the Hospital engaged in the unlawful so-
licitation of grievances through these programs. Cf.
Stride Rite Corp., 228 NLRB 224 (1977) (employ-
er's program of soliciting grievances instituted after
filing of representation petition found not to be
mere continuation of prior practice).
9. The judge's decision erroneously states in sec-
tion IV,A,5 that the Hospital's establishment of the
Professional Relations Conference Group was not
MIDDLETOWN HOSPITAL ASSN.
alleged in the complaint. We note, however, that
the establishment of this group was alleged in para-
graph 15(d) of the consolidated complaint. Accord-
ingly, we reject the Hospital's argument that, as
the establishment of the Professional Relations
Conference Group was not alleged, it was improp-
er for the judge to conclude that the Hospital's es-
tablishment of this group violated Section 8(a)(1).
Further, we adopt the judge's rationale that this
group was established as the fulfillment of an un-
lawful promise of benefits and is unlawful on that
basis, regardless of whether the group addressed
matters that were terms and conditions of employ-
ment . See Tipton Electric Co., 242 NLRB 202
(1979), enfd. 621 F.2d 890 (8th Cir. 1980); Smith-
town Nursing Home, 228 NLRB 23, 30 (1977). Ac-
cordingly, our Order departs from that recom-
mended by the judge in that it makes no reference
to the group being a forum for resolving employee
complaints and grievances with respect to wages,
hours, and working conditions.
10. We adopt the judge's conclusion, in section
IV,A,6 of his decision, that the Hospital's solicita-
tion rule in effect from February 1979 to March
1981 was unlawful. We further agree with the
judge's fording of no violation with respect to the
no-solicitation rule promulgated by the Respondent
after the commencement of the hearing because the
Respondent was not put on notice that the lawful-
ness of that rule would be a subject of litigation.
We also note, however, that in discussing the new
rule the judge cited T.R. W., Inc., 257 NLRB 442
(1981), which subsequently was overruled in Our
Way, Inc., 268 NLRB 394 (1983).
11. In adopting the judge's conclusion in section
IV,A,17(a) of his decision that Nurse Manager Ada
Newby's question to nurses Larry Turner and
Anita Waddles about why they wanted a union
constituted unlawful interrogation, we do not rely
on PPG Industries, 251 NLRB 1146 (1980), cited by
the judge. The Board's subsequent decision in Ross-
more House, 269 NLRB 1176 (1984), overruled
PPG to the extent that PPG held unlawful an em-
ployer's questioning of open and active union sup-
porters about their union sentiments. Although
Turner was an open union supporter, Waddles was
not. Accordingly, Newby's question directed to
both of them violated Section 8(a)(1).
12. The Hospital repeatedly asserts that a 13
March 1980 letter written by Dr. William Lang-
worthy was not received into evidence. On this
basis the Hospital urges reversal of the judge's con-
clusion in section IV,A,9(a) of his decision that
Clinical Coordinator Wanda Blade made an unlaw-
ful promise of benefits to nurse Mae Fox. The Hos-
pital's assertion is incorrect. Although the letter
545
was rejected by the judge when first proffered, it
later was received into evidence. Accordingly, we
find without merit the Hospital's argument that the
judge's conclusion should be reversed on the
ground that the judge improperly relied on a docu-
ment not in evidence.
13. The Hospital urges reversal of the judge's
conclusion in section IV,A,9(c) of his decision that
Blade illegally threatened employees by telling
them that the ONA always strikes hospitals. The
Hospital contends that it was prevented from
showing that Blade's statement that the ONA
always strikes hospitals was a true statement be-
cause the ONA failed to comply with the Hospi-
tal's subpoena for a list of ONA strikes since 1974,
which the judge ordered the ONA to produce. Al-
though the record shows that the ONA failed to
produce collective-bargaining agreements subpoe-
naed by the Hospital, it is silent about whether the
ONA produced the subpoenaed list of strikers. Ac-
cordingly, the Hospital's argument lacks a basis in
the record.
14. 'With the exceptions of the matters noted
above, we agree with the second supplemental de-
cision of the judge. We, therefore, will issue the
Order set forth below that reflects our findings and
other minor modifications of the judge's recom-
mended Order."
ORDER
The National Labor Relations Board orders that
the Respondent, Middletown Hospital Association,
Middletown, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) ] nterrogating employees with respect to their
union sympathies or activities or those of other em-
ployees.
(b) Telling employees that strikes are inevitable.
(c) Threatening to refuse to bargain with the
Union if the employees select it as their bargaining
representative.
(d) Warning employees they could be hurt by
testifying in a Board proceeding.
(e) Soliciting employees to abandon the Union
and pursue their concerns through a doctor-nurse
committee.
" In its memorandum in support of its exceptions to the judge's
second supplemental decision , the ONA states that if the Board finds the
petitioned -for registered nurse unit to be inappropriate , the ONA no
longer wishes to proceed to an election in a different unit, and the Board
should dismiss the petition . Accordingly, we do not adopt the judge's
recommendation that Case 9-RC-13186 be severed from the unfair labor
practice cases and remanded to the Regional Director Rather, our Order
dismisses the petition in Case 9-RC-13186.
We have modified par 1(f) of the judge 's recommended Order to more
closely reflect the violation found
546 DECISIONS OF NATIONAL "LABOR RELATIONS BOARD
(1) Threatening employees with loss of employ-
ment, changes in working conditions , loss of
present and future benefits, and other unspecified
retaliation because they support the Union.
(g) Telling employees the Union is to blame for
adverse future changes in working conditions.
(h) Promising and granting benefits or soliciting
the presentation of grievances and adjusting such
grievances to discourage its employees ' designation
of a collective-bargaining representative.
(i) Announcing and implementing adjustments in
the cost-of-living wage base for the purpose of im-
peding or interfering with employees ' union organi-
zational activities; provided, however, that nothing
herein, shall be construed to require the Respondent
to revoke any such adjustments heretofore granted.
(j) Maintaining the "One-in-Five" and "Speak-
Out" programs for the purpose of soliciting, prom-
ising to remedy, and remedying employee com-
plaints and grievances.
(k) Supporting, participating in, or maintaining
the Professional Relations Conference Group.
(1) Maintaining or enforcing rules 1 and 4 of the
"Solicitation" rule appearing in its employee hand-
book during the period 7 August 1979 through 30
March 1981.
(m) 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) Discontinue the "One-in-Five" and "Speak-
Out" programs, and notify its employees of their
discontinuance in writing.
(b) Discontinue the Professional Relations Con-
ference Group, and notify its employees of its dis-
continuance in writing.
(c) Post at its Middletown, Ohio facility copies
of the attached notice marked "Appendix." 12
Copies of the notice, on forms provided by the Re-
gional Director for Region 9, 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.
12 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."
(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 petition in Case
9-RC-13186 is dismissed.
IT IS FURTHER ORDERED that those portions of
the complaint found to be without merit are dis-
missed.
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 employees with re-
spect to their union sympathies or activities or
those of other employees.
WE WILL NOT tell employees that strikes are in-
evitable.
WE WILL NOT threaten to refuse to ' bargain with
Ohio Nurses Association if our employees select it
as their bargaining representative.
WE WILL NOT warn employees of possible ad-
verse consequences for testifying at a hearing con-
ducted by the National Labor Relations Board.
WE WILL NOT solicit employees to abandon the
Ohio Nurses Association and pursue their concerns
through a doctor-nurse committee.
WE WILL NOT threaten employees with loss of
employment, changes in working conditions, loss
of present and future benefits, or other unspecified
retaliation because they support the Union.
WE WILL NOT tell our employees that Ohio
Nurses Association is to blame for adverse future
changes in working conditions.
WE WILL NOT promise or grant benefits or solic-
it or adjust employee grievances for the purpose of
discouraging our employees' designation of a col-
lective-bargaining representative.
WE WILL NOT announce and implement adjust-
ments in the cost-of-living wage base for the pur-
pose of impeding or interfering with employees'
union organizational activities; provided, however,
that nothing herein shall be construed to require us
to revoke any such adjustments heretofore granted.
WE WILL NOT maintain our "One-in-Five" and
"Speak-Out" programs for the purpose of solicit-
ing, promising to remedy, and remedying employee
complaints and grievances.
WE WILL NOT support, participate in, or main-
tain the Professional Relations Conference Group.
MIDDLETOWN HOSPITAL ASSN.
WE WILL NOT maintain or enforce rules 1 and 4
of the "Solicitation" rule appearing in our employ-
ee handbook during the period of 7 August 1979
through 30 March 1981.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of rights guaranteed them by Section 7
of the National Labor Relations Act.
WE WILL discontinue the "One-in-Five" and
"Speak-Out" programs.
WE WILL discontinue the Professional Relations
Conference Group.
MIDDLETOWN HOSPITAL ASSOCIATION
Andrew L. Lang and Jeffrey M. Raider, Esgs., for the
General Counsel.
Thomas A. Swope and James J. Grogan, Esqs., for the Re-
spondent.
Joan L. Kalhorn, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This
consolidated proceeding was tried before me at middle-
town, Ohio, on 16 days between January 26 and May 13,
1981. As amended , the consolidated complaint alleges ex-
tensive violations of Section 8(a)(1) of the Act, and re-
quests a bargaining order as part of the remedy . In addi-
tion to these alleged unfair labor practices, objections to
conduct affecting the results of the election in Case 9-
RC-13186 were filed by the Charging Party, Ohio
Nurses Association (ONA or the Union), and were con-
solidated for hearing before me with the complaint. In
most cases the objections are based on conduct also al-
leged as unfair labor practices.
On the entire record' and my careful observations of
the witnesses' demeanor as they testified before me, and
after conideration of the posttrial briefs by the parties, I
make the following
II. LABOR ORGANIZATION
547
Respondent's answer to the consolidated complaint
denied that the Charging Party, Ohio Nurses Associa-
tion , is a labor organization within the meaning of the
Act. Thereafter the parties stipulated that the ONA
exists in whole or in part to represent employees for the
purposes of negotiating concerning their wages and other
terms and conditions of employment, and that ONA
members participate in the operation of the ONA. In re-
sponse to my direct question, the Respondent agreed that
it was not contending that ONA does not act as a labor
organization, but was contending that it should not be
certified as the representative of Respondent's employees
for policy reasons . The Regional Director for Region 9,
in his Decision and Direction of Election of February 21,
1980, in Case 9-RC-13186 rejected similar contentions,
and found ONA to be a labor organization within the
meaning of Section 2(5) of the Act, which may properly
receive Board certification if selected by a majority of
the employees in the collective-bargaining unit involved.
Respondent filed a request for review of that Decision
and Direction of Election and the Board denied it. Noth-
ing argued or presented before me requires a different
conclusion. Accordingly, I fmd the ONA is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. SUPERVISORS AND AGENTS
The complaint alleges and Respondent admits that the
individuals named below held the positions set forth after
their names at all times material and have been and are
statutory supervisors and agents of Respondent:
Walter A. Mischley
T. L. Wiley
Don Barker
Kay Anderson
Judy Kunze
Ada Newby
Betty Phillips
Janet Ford
Jennifer Moore
Wilma Popplewell
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a health care institution maintaining fa-
cilities in Middletown, Ohio, where it is engaged in the
business of providing hospital care services. In the
course and conduct of its business operations, Respond-
ent annually purchases and receives goods and materials
valued in excess of $5000 directly from points outside the
State of Ohio. It is admitted, and I fmd, that the Re-
spondent 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.
1 The record contains many errors in transcription , but none of them
are sufficiently serious to effect evidentiary weight
Executive Vice President
Vice President, Personnel
and Ancillary Services
Manager of Personnel
Director of Nursing
Nurse Manager
Nurse Manager
Nurse Manager
Clinical Coordinator
Clinical Coordinator
Clinical Coordinator
The parties stipulated that all of Respondent's clinical
coordinators were supervisors within the meaning of
Section 2(11) of the Act and agents of Respondent
during the times covered by the complaint. I therefore
fmd the following named clinical coordinators were stat-
utory supervisors and agents during the times of their
conduct alleged in the complaint: Wanda Blade, Amy
Linden, Helen Converse, and Judy Gardinelli.
On the evidence before me I also find Darlene Deck,
nurse manager ; Mary Ann Meredith , manager of the op-
erating room and recovery rooms; and Mary Ortman, di-
rector of education and training , are statutory supervi-
sors and agents of Respondent. Moreover, Deck and
Meredith are nurse managers, and nurse managers were
found by the Regional Director to be supervisors, as was
the director of training and education, Mary Ortman's
position.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dr. James Stewart is admitted by Respondent to be an
agent of Respondent by virtue of his membership on the
Hospital's board of trustees. The agency status of Drs.
Floyd, Gordon ,2 and Kokenakis is a matter of dispute.
These three ' doctors are independent medical practition-
ers. It is clear that they are not on Respondent's payroll,
were not on its board of trustees at the time of the
events alleged, and possess none of the supervisory au-
thorities set forth in Section 2(11) of the Act. Their con-
nection with the Hospital gives them the right to admit
and treat patients at' Respondent 's facility, for which they
are reimbursed by the patient . Their authority extends to
the direction of medical treatment pursuant to the exer-
cise of ,their medical judgment. The Board has recog-
nized that this direction , which is usually carried out by
nurses at Respondent's hospital, is incidental to patient
treatment and does not necessarily connote supervisory
authority . The Trustees of Noble Hospital, 218 NLRB
1441, 1442 ( 1975).
The General Counsel argues that doctors (1) "are
viewed as having a high degree of authority by the
nurses" ; and (2) "can initiate incident reports which are
used to monitor nurses and other employees under the
concept of risk management." If (1) refers to "a high
degree of authority" with respect to the care to be ac-
corded their patients the General Counsel is probably
right, but if it refers to general authority in areas other
than patient care there simply is no evidence to support
the conclusion. Contention (2) is misleading . There is no
showing that incident reports were used to "monitor"
anyone. As William Stief, Respondent's administrative
assistant, credibly testified, an incident report is "an in-
ternal report which is reported by anybody3 to identify
any event which is not a normal, day-to-day event asso-
ciated with the activities of the hospital ." The report is
utilized as a tool of risk management and is designed to
alert the hospital and its insurance carrier to any possibil-
ity of liability . There is no substantial evidence that doc-
tors are inclined to, or have threatened to, use such re-
ports as a disciplinary or harassing device . That they
might be so used, insofar as they can be used to report
nurses' conduct, is pure speculation and certainly not
enough to show supervisory authority.
Drs. Floyd, Gordon, and Kokenakis are not general
agents of Respondent, but this does mean they may not
have been acting in concert with or as special agents of
Respondent, or that Respondent may not have adopted
their conduct as its own in furtherance of its antiunion
campaign.
The physicians at the hospital are to a large extent
self-governing . They establish surgical sections among
themselves and elect their own chief of staff. Insofar as
the record shows the hospital administration has nothing
to do with these affairs.
'At a regular meeting of the surgical section, composed
wholly of staff physicians , in February 1980 a group of
three individuals retained by the Respondent as consult-
ants in labor relations attended . This group spoke to the
doctors, advising them that there was dissension among
the nurses and they were planning to organize or form a
union., I conclude that inasmuch as this group was re-
tained by the Hospital it was at the surgical section meet-
ing as the Hospital 's agent.
After that meeting, Dr. William Langworthy, chief of
the medical staff and a professional partner of Dr. Ke-
fauver, ' who was at the time on the Hospital's board of
trustees, and Dr . Henry Floyd, thoracic surgeon, agreed
that a union was not desirable in the Hospital . Dr. Floyd
concedes that he discussed the union campaign with just
about every, nurse he came in contact with , and is not
aware which are supervisors and which are not. I con-
clude from these open conversations by Dr . Floyd with
members of the nursing staff, of whom some were super-
visors, that Respondent early became aware of Dr.
Floyd's conversations about the Union . Dr. Floyd's dis-
cussion about the Union took place over a period of
about 3 or 4 weeks. During the course of these conversa-
tions with nurses , Drs. Floyd and Langworthy discussed
the possibility of forming a doctor-nurse committee. Dr.
Langworthy then presented the matter to the surgical
staff executive committee . It was then pursued at general
staff meetings of the doctors. It does not appear that any
representatives of management were at the meetings of
the staff or its executive committee. Dr. Langworthy es-
timates the staff executive presentation occurred in
March or April. I conclude it was March in view of the
timing of other events relating to the doctor -nurse com-
mittee.
About a week before the March 20, 1980 election, Dr.
Gordon talked to Judith Daniels with , respect to the
Union . The entire content of that talk is detailed else-
where, but during the course of the conversation Dr.
Gordon said that unions were not good , and that "they"
felt nurses could handle their own problems and a
doctor-nurse committee would be formed to handle
grievances in the Hospital . Similarly, Dr. Floyd told
nurses Pfeiffer and Sizemore during the week before the
election that there was talk about forming a doctor-nurse
committee to solve ; problems . This statement was made
in the context of urging Pfeiffer to vote against the
Union.
During the week or two prior to the election Dr.
Langworthy asked Director of Nursing Kay Anderson
and Director of Nursing Specialties Karen Mehl if such a
committee` could be formed . He also asked them to poll
the nurses, or at least get a nurses' consensus of opinion,
whether they would like to form a group that would
meet and discuss mutual problems . The record does-not
clearly spell out what the reaction of Anderson and
'Mehl was to Dr. Langworthy's proposal, but Dr. Lang-
worthy testified that the general consensus was that the
nurses wanted the committee . I therefore conclude An-
derson and Mehl cooperated with him in securing this in-
formation.
` On March 13 Dr. Langworthy wrote a letter that he
sent to all nurses . The letter appears on his' personal let-
terhead and reads as follows:
2 Dr, Gordon was deceased at the time of the hearing.
a The General Counsel 's evidence supports a finding that indeed "any-
body" employed or on the staff can make such reports.
This letter is being written with a good deal of
reservation on my part, for fear that you will misin-
MIDDLETOWN HOSPITAL ASSN. 549
terpret what I am going to say . However, for my
own piece [sic] of mind it must be said and I think
the majority of the medical staff feel this way also.
As professionals I can't help but feel we can deliver
better medical care by not becoming adversaries.
Please take a long hard look at what unionization
will do to our hospital. We have now a very coop-
erative, friendly almost family-like work relation-
ship . Ideas concerning patient care are freely ex-
changed for the benefit of the patient . The R.N.'s
advice and ideas are an integral part of our patient
care . I see this potentially suffering under third
party representation.
As a staff we are very much aware of your griev-
ances toward ourselves and the administration. We
and the administration have our own quarrels. The
staff is as anxious as you are to have a free ex-
change of ideas, and just as concerned about proper
staffing . Good patient care is a team effort and in
the past some members of the team have carried
more than their share of the load. Look around you
now, staffing and lines of communication and coop-
eration have improved and they will get better yet.
I quite frankly do not know if you should vote
for the union or not, that is a decision you must
make, however there is a gnawing feeling within me
that makes me think that we, as professionals,
should be capable of working out our problems
among ourselves by other means and short of be-
coming adversaries.
If I have offended you forgive me, if I have
caused you to stop and take a second look regard-
less of your decision, thank you, for that was my in-
tention.
Dr. Langworthy told clinical coordinator Wanda
Blade that he was sending the letter to all nurses. Ac-
cordingly , Blade called nurse Mae Fox on March 19, the
day before the election, and inquired about whether or
not she had received a letter from Dr. Langworthy.
Blade referred to it as a beautifully written letter. When
Fox said she had not received the letter , Blade urged her
to read it and consider everything therein.
The Respondent's executive vice president, Walter
Mischley, addressed a group of employees within the 3-
day period before the election. During the course of
Mischley's talk, mention was made of the doctor-nurse
committee . According to nurse Barbara Pfeiffer, whom I
credit, Mischley mentioned something about a group
being formed to help solve problems at the hospital,
whereupon she told him that one of the doctors had
stated that a doctor-nurse committee was going to be
formed. Mischley replied, "Yes, that was part of the dis-
cussion ." He continued that it seemed that they had had
a nurse-doctor committee before but he did not know
what happened to it. Mischley's reference that there had
been some conversation about the committee clearly
refers to some period prior to that date on which he
spoke to the employees and shows that he was aware of
this circulating idea of a doctor -nurse committee well
before the election.
On March 21, the day after the election, Nurse Man-
ager Aida Newby told nurse Daniels, inter alia, that
there would be many changes in the hospital including a
doctor-nurse committee . On March 27 Nurse Manager
Judy Kuiize solicited nurse Sizemore to nominate people
for a doctor-nurse committee.
The first draft and revisions of a statement of purpose,
guidelines , and subjects to be discussed by a professional
relations conference group were prepared by Kay An-
derson and Karen Mehl on April 18 and 28, and May 7,
1980. This statement provides for at least monthly meet-
ings of the group whose members were Anderson and
Mehl, eight staff nurses, three staff physicians, a nurse
manager , and a clinical coordinator . In addition, the
Hospital's executive vice president and the medical staff
president are ex-officio members.
The subjects to be discussed by the group are set forth
as those "centered around the delivery of patient care,
professional relationships , recommendation for policy
and procedure cases , trends in health care , utilization of
professional staff, education and training needs."
The minutes of the July 15, 1980 meeting4 of the
group show Mehl, Anderson, and Mischley in attendance
with Dirs. Hurlburt, Langworthy, and Dysart, and
Nurses Heberling, Hendrickson, Heinz, O'Flynn,
Moore,6 Brewer, Rockey, and Schramm. Mehl chaired
the meeting.
After a discussion of procedural rules, the relationships
of doctors and nurses on rounds were discussed, as were
matters including patient care and tuition reimbursement.
Discussion of tuition reimbursement was deferred to the
next meeting, but an addendum to the minutes signed by
Anderson and Mehl set forth that discussion of tuition
reimbursement was inappropriate because it was not a
patient care matter, and further set forth that the group
could not discuss wages, benefits, working conditions,
and other personal policies.
This collection of incidents reveals more than mere
happenstance . I am persuaded that the meeting of Re-
spondent's representatives with the doctors in February
was not only to advise them of the nurses' dissatisfaction
and plans to engage in union activity, but was also for
the purpose of enlisting the doctors in Respondent's cam-
paign against the Union, whether by direct solicitation or
subtle implication. It is not likely that the union cam-
paign had escaped or would escape the attention of the
doctors in view of their continuing close contact with
the nurses and each other, and I perceive no good reason
for Respondent to advise the doctors of something they
could reasonably be expected to know without such ad-
visement . Thereafter, certain of the doctors engaged in
antiunion conduct more fully detailed elsewhere, which
paralleled that of Respondent 's supervisors . Respondent
made not a single admonitory murmur when doctors en-
gaged in such conduct, and the statements of Supervisor
Wanda Blade to Mae Fox on March 19, 1980, with re-
spect to Dr. Langworthy's letter of March 13, indicates
that Respondent adopted and ratified the doctors' efforts
This was not the first meeting because the minutes refer to an earlier
meeting
5 Jennifer Moore is a clinical coordinator
550 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
against ONA. Moreover , the statements of hospital man-
agement and supervisors, both before and after the
March 20 election , with respect to the committee that
later came into being as the professional relations confer-
ence group is persuasive evidence that Respondent's
management and the physicians were acting in concert in
establishing such a committee whether it was hatched by
the doctors or the Hospital . That Nurse Manager
Newby, on the morning of the very next day after the
election, told nurse Daniels that the committee would be
formed shows that Respondent had already decided on
such a committee , and persuades me that decision was
made prior to March 21.
The participation of Anderson and Mehl, pursuant to
the request of Dr . Langworthy,6 in the ascertainment of
nurse interest and their active role in preparing what was
in effect the group 's bylaws illustrates the close coopera-
tion of doctors and management in a matter held -out to
employees by management as a benefit.
Even though the doctors are neither employees nor
statutory supervisors a preponderance of the evidence
warrants a fording that the doctors and management
were conducting a concerted antiunion campaign, and
Respondent condoned , adopted, and ratified the doctors'
conduct. Accordingly, Respondent must be held respon-
sible for that conduct.
IV. THE ALLEGED UNFAIR LABOR PRACTICES7
A. Some General Chronology
ONA commenced an organizing campaign among Re-
spondent's registered nurses about March 13, 1979, when
it conducted its first meeting with the nurses and secured
the first signed authorization cards from them . By March
22, 1979, Respondent was aware that ONA was organiz-
ing. ONA continued securing signed authorizations cards
until September 25, 1979, the date the last such card in
evidence was signed.
On October 15, 1979, ONA filed a petition in Case 9-
RC-13126 requesting a representation election among the
staff nurses . ONA's withdrawal of this petition was ap-
proved on November 19, 1979 . ONA filed a new petition
in Case 9-RC-13186 on December 12, 1979 . It is proba-
6 The fair import of Dr . Langworthy's testimony is that he requested
their assistance and got it.
' The facts found are a distillation of credible testimony, the exhibits,
and stipulations of fact, viewed in the light of logical consistency and in-
herent probability. Although I will not in the course of this decision refer
to every bit of record testimony or documentary evidence, I have
weighed and considered it. To the extent that any testimony or other evi-
dence not mentioned might appear to contradict my findings of fact, I
have not disregarded that evidence but have rejected it as incredible,
lacking in probative worth , surplusage , or irrelevant.
In those instances when it has been necessary to determine credibility,
I was, in most cases, impressed that the witnesses were honest people
tryin after a lapse of a year or more,to recount as best they could recall
with the usual human failings of recollection after such an interval be-
tween event and testimony thereon . Accordingly, I have carefully con-
sidered comparative , testimonial specificity and degree of recollection;
consistency with other objective evidence; the fact that current employ-
ees are testifying against their employer who controls their working con-
ditions; spontaneity or lack of it ; responsiveness to or seeming evasion of
questions posed; the leading nature of some questions propounded; and
each witness's believability in terms of demeanor on each topic discussed.
ble that Respondent received a copy of this new petition
in the normal course of the mail within 2 or 3 days.
The Regional Director 's Decision and Direction of
Election issued February 21, 1980, and the election was
held in the appropriate unit on March 20, 1980 . Sixty-
five votes were cast for ONA; 121 against; and 7 ballots
were challenged . ONA then, on March 27, 1980, filed
the objections to the election pending before me.
The-earliest charge before me was filed and served on
February 7, 1980 . Accordingly , in accordance with Sec-
tion 10(b) the only conduct of Respondent that may be
found violative of the Act is that conduct occurring on
and after August 7, 1979 . It is elementary, however, that
events occurring before that date may be considered as
background evidence shedding light on events within the
statutory limitation period.8
B. Alleged 8(a)(1) Violations
Turning to the alleged violations of Section 8(a)(1), I
would first note that I repeatedly sustained objections to
Respondent's attempts to inquire into the effect of alleg-
edly unlawful statements on the employees who heard
them. Administrative law judges are required to follow
Board precedents until the Board or the Supreme Court
overrules them, despite contrary authority in courts of
appeals-9 It is well settled that "the determination of
whether statements are coercive does not depend on
whether they have had the intended effect, or upon the
subjective state of mind of the hearer .... the applica-
ble test is whether the Employer engaged in conduct
which, it may reasonably be said, tends to interfere with
the free exercise of the employee 's rights under the
Act "10 Accordingly, I adhere to my rulings excluding
exploration of the effects of Respondent's statements, and
apply the Board-approved test to the statements at issue.
Having consistently applied this test, I believe it is re-
dundant to repeat each and every time I find a violation
that it had a reasonable tendency to interfere with em-
ployee rights, and I have not burdened this already long
decision with this unnecessary repetition. The reader is
advised that each fording of violation is to be read as
containing a finding that such a tendency was present.
1. Statements of Dr. Floyd
During the week prior to the election, " Dr. Floyd
told nurses Pfeiffer and Bowers that the nurses did not
understand unions that were a destructive force, and the
ONA had given them false information . Nurse Sizemore
then entered the area . Dr. Floyd related an instance
when , a union had caused trouble in a hospital, and
opined that doctors and nurses could not work well to-
gether with a union present. He then offered that if the
a Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411, 416
(1960).
9 Iowa Beef Packers, 144 NLRB 615, 616 (1963).
10 G. H. Hess, Inc., 82 NLRB 463 fn. 3 (1949); and see, e.g., Masonic
Homes, 258 NLRB 41 fn. 4 (1981).
11 The exact date is uncertain. Sizemore puts it about March 14, but
Pfeiffer believes it was 3 days before the election. This difference in testi-
mony is unconsequential.
MIDDLETOWN HOSPITAL ASSN. 551
nurses would cancel the election 12 he would continue ef-
forts to get a doctor-nurse committee together . He added
that Respondent 's executive vice president , Mischley,
would be troublesome in bargaining and would make
counter offers in bargaining that would result a settle-
ment that was nothing like what the nurses wanted or
asked for." 3
Dr. Floyd's solicitation of nurses to cancel the election
coupled with a promise to pursue the formation of
doctor-nurse committee amounts to a solicitation to
abandon the Union and pursue their concerns through an
alternative representative group. This solicitation violat-
ed Section 8(a)(1) of the Act, as did his rather obvious
implication that selection of the Union to bargain for the
nurses would be an exercise in futility . Dr. Floyd did
not, as the complaint alleges, threaten an inevitable
strike.
2. Statements of Dr. Gordon
About March 14, 1980, Dr. Gordon asked nurse Mae
Fox if she would talk to him about the ONA. She agreed
and the two had a private conversation in the lounge.
Dr. Gordon asked if Fox was aware that when the ONA
came into a hospital there was a possibility of strikes. He
stated that patients had died as a result of strikes because
they had not been given their antibiotics . He also advised
that a third party would cause problems between the
doctors and nurses , and that he could not understand
why she would want a third party to represent the
nurses . Dr. Gordon closed by suggesting Fox talk to Dr.
Floyd because he knew what could happen in a union
hospital.' 4
When Dr. Gordon expressed a lack of understanding
about why Fox wanted a third party, he was plainly re-
ferring to the ONA and just as plainly interrogating Fox
with respect to her union sympathies . This interrogation
violated Section 8(a)(1) of the Act.
About a week before the election, Dr. Gordon asked
nurse Daniels to enter the conference room because he
wanted to talk to her about ONA and her union activi-
ties. She immediately volunteered that she was an ONA
protagonist . He said he had not known that ; commented
that unions were not good for a hospital; and asked if she
had ever worked in a union hospital. She said she had
not, and asked if he had. He replied, "No," but she
should talk to Dr. Floyd who had. There was then a
brief argument about whether a union would cause
nurses and doctors to be adversaries, with Dr. Gordon
finally conceding things probably would not change in
12 I credit Sizemore on this point, noting that she seemed to be more
certain
13 I do not credit Pfeiffer's testimony that Dr Floyd said Mischley
would never come to an agreement with the Union , nor do I credit Size-
more that Dr Floyd said Mischley would not bargain at all, because this
is inconsistent with her testimony that Dr Floyd said Mischley would
make alternative offers resulting in a settlement less than that sought by
the nurses
14 That Fox's testimony is uncontroverted does not in and of itself
convince me it is credible inasmuch as Dr Gordon is deceased and thus
unable to respond , but I observed nothing in her demeanor that would
require discrediting her Moreover, she impressed me as a believable wit-
ness on this point I credit her For the same reasons I credit Daniels on
incident (b) below
Daniels' unit , but would change in other units . He then
stated that a doctor-nurse committee would be formed
and would handle grievances. Further irrelevant discus-
sion ensued.
Dr. Gordon's initial statement of purpose invited re-
sponse , and therefore amounted to not so subtle interro-
gation into Daniels ' union sympathies and activities that
violated Section 8(a)(1) of the Act.
3. Conduct of Dr. Kokenakis'5
Nurse Mary Weith had a conversation with Dr. Ko-
kenakis about a week before the election. He asked to
talk to her and she agreed. They went to the conference
room where Kokenakis told her that "they" had said
that if she would listen to anyone about this that she
would listen to him , and it made him very proud. She
asked who "they" were, but Kokenakis would not
answer. He then asked her what kind of people and what
kind of nurses Daniels and Mae Fox were. She answered
they were fine in both respects. He then asked if it
would be worth his while to talk to Daniels. Weith said
she did not know if he could persuade Daniels about
anything. He then asked her what sort of a gripe Larry
Turner and Anita Waddles would have about a union be-
cause they had not worked there very long. She told him
to talk to them if he wanted their answers. Kokenakis
then inquired if Weith had spoken to her family about it.
She said they seemed to agree with her and her husband
was the secretary of his union. Kokenakis advised her
that because he was on the executive board" he hap-
pened to know there were some big changes coming in
the administration . He stated there was a certain stigma
attached to "you people." Kokenakis continued that if
Weith voted for the Union he would never speak to her
again . At one point in the conversation he asked her
how she thought Newby and Blade were doing their
jobs. She replied she did not think they were doing a
very good job. He said he would personally see those
things would change.
I find that Dr. Kokenakis coercively interrogated
Weith with regard to her union sympathies and those of
others; warned her that her union activity had caused
her to be stigmatized by Respondent;' 7 and impliedly
promised changes in management and supervision to the
benefit of the nurses . The interrogation, warning, and
promise, each individually and all collectively, violated
Section 8(a)(1) of the Act.
After talking to Weith, Dr. Kokenakis asked nurse
Daniels to go with him to the conference room. There
Kokenakis said, "They told me that you were a ring
leader of the Union" and further said that she had a
15 I credit Judith Daniels and Mary Werth rather than Dr Kokenakis
with respect to his conversation with them Both nurses remain employ-
ees of the Hospital and are likely to be in continued contact with Dr
Kokenakis . It is not likely that they would fabricate testimony contrary
to the interests of their employer or contrary to the testimony of Dr. Ko-
kenakis Moreover , their testimony was more convincing than that of the
doctor who appeared to be somewhat affronted by the fact he was called
to testify and had some failures of recollection on significant portions of
the conversation with Daniels and Weith
18 Dr Kokenakis was not and is not a member of Respondent 's board.
11 A warning markedly similar to that later given to Daniels.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stigma attached to her name and anywhere she went that
stigma would follow her . He also told her that her name
was on Mischley 's desk. He then said that unions were
not good for the Hospital and they did not need any out-
siders at the Hospital . He next volunteered that he would
see that Wanda Blade was removed within 2 weeks after
the election if Daniels would vote "no " and sway other
nurses. He also said that when Newby retired he would
see that Blade was not made manager . Daniels said she
did not think he had that power . He replied that if he
did not the board did and he had a lot of friends on the
board. "' Daniels said that nurses had tried to go to the
board but were denied access. He replied that Mischley
was a problem, doctors could not handle Mischley, and
he would probably be removed . He then again solicited
her to agree to sway the nurses' vote and to vote "no."
She told him that she would not promise that.
Dr. Kokenakis ' remarks about a, stigma on Daniels'
name together with the positive assertion that her name
was on Mischley's desk was an obvious warning that Re-
spondent knew of her union activities, did not like them,
and was giving her special scrutiny on that account. Om-
inous statements of this variety are plainly calculated to
interfere with, restrain, and coerce employees in the ex-
ercise of their statutory rights and violate Section 8(a)(1)
of the Act. The accompanying solicitation to vote
against the Union and persuade others to do likewise is
blatant interference with employees' rights and is par-
ticularly coercive when, as here , it follows a threatening
pronouncement of employer stigmatization because an
employee has exercised those rights contrary to the em-
ployer's interest . Accordingly, this solicitation violated
Section 8(a)(1) of the Act, as does the promise to secure
the removal of a supervisor if Daniels voted against
ONA and got others to do so . Whether or not Blade was
unpopular among the nurses, Dr. Kokenakis' promise as-
sumed that Blade's removal would please the nurses and
was uttered on that premise.
4. Statements of Dr. James Stewart"
According to nurse Francis Giltrow, though she does
not remember all that was said or how discussion of the
Union started,. Dr. Stewart told her in mid-March 1980
that the nurses should have taken their complaints to the
board of trustees. Giltrow responded that with organiza-
tion the nurses had clout, and had nothing without it.
Dr. Steward then said something about ONA going on
strike. Giltrow asked how he knew there would be a
strike, and told him if ONA got in it would require a
majority vote - of its members in the bargaining unit to
decide to go on strike. Dr. Stewart made no response.
The remarks of Dr. Stewart as reported by Giltrow
warrant no fording of 8(a)(1) violations. They do not rise
to the level of unlawful interrogation nor do they con-
tain solicitations of grievances, promises to remedy
grievances, or threats of an inevitable strike.
18 Board as used in this conversation refers to the Hospital's board of
trustees.
29 Dr. Stewart did not testify.
5. Professional relations conference group
The details relating to this group are set forth above.
Although its actual establishment is not specifically al-
leged in the complaint, the matter has been litigated and
plainly relates to complaint allegations that the promise
of such a group was unlawful . I am persuaded it was
formed in satisfaction of the promises found unlawful
and was designed to wean nurses from the ONA. Wheth-
er or not the group deals with matters on which an in-
cumbent union could require bargaining , and I am in-
clined to believe it does,20 its erection is the benefit un-
lawfully promised' and is therefore itself a violation of
Section 8(a)(1) of the Act.
6. Solicitation rule and related events
From at least February 1979 to March 30, 1981, the
Respondent had a rule in its employee handbook that is
set forth below in relevant part:
1. No general solicitation and/or distribution of
literature throughout the hospital is allowed unless
approved by Administration or Personnel Depart-
ment.
4. Many badges, buttons, etc. may be considered
to be solicitation by our public, therefore, we re-
quire that they not be worn or distributed without
approval of Administration.
The General Counsel concedes that the promulgation
of this rule may not be found unlawful because it oc-
curred more than 6 months prior to the filing of the first
charge in this case , but contends its maintenance within
the statutory period violated Section 8(a)(1) of the Act.
The blanket ban on solicitation and distribution
"throughout the hospital," without specification of ex-
empted areas or times of applicability, could reasonably
be interpreted as an injunction against any solicitation or
distribution at any time during the day or any place on
the premises. This is plainly overbroad and unduly re-
strictive in the total absence of any showing that so
broad a rule is reasonably necessary in the interests of
patient care,21 and the failure to define the area of per-
missable union solicitation in a manner that would be
clear and understandable to the employees has a reasona-
ble tendency to cause employees to refrain from such ac-
tivity.22 The requirement of predistribution clearance by
management of union literature is also unlawful . 23 With
reference to numbered paragraph 4 of the rule, which
also impermissably requires prior approval of Respond-
ent before wearing union buttons in view of the para-
graph's broad proscription that fairly encompasses union
buttons, it is well settled that the discouragement of the
wearing of union insignia in the absence of some valid
showing of special circumstances violates Section 8(a)(1)
20 "Utilization of professional staff, education and training needs"
would seem to be work-related topics subject to collective bargaining.
21 Intercommunity Hospital, 255 NLRB 468 (1981); Eastern Maine Med-
ical Center, 253 NLRB 224 (1980).
za Fasco Industries, 173 NLRB 522 fn 1 (1968).
zs McDonnell Douglas Corp., 240 NLRB 794 (1979).
MIDDLETOWN HOSPITAL ASSN.
of the Act.24 Respondent has shown "no special circum-
stances warranting the banning of union buttons through-
out the entire Hospital.
For the foregoing reasons, I conclude and find that
paragraphs 1 and 4 of the solicitation rule are invalid,
and that their maintenance since August 7, 1979, violated
Section 8(a)(1) of the Act, oven if they were not en-
forced.25
On two occasions the Respondent required compliance
with this rule. On August 13, 1979, Nurse Manager Ada
Newby referred Larry Turner, registered nurse, to para-
graph 4 of the rule and asked him to remove an ONA
button he was wearing. He did. On January 11, 1980,
Manager of Personnel Barker advised Gail Sizemore,
registered nurse, that he had become aware that she was
"soliciting material" and pointed to the solicitation
policy discussed above. Sizemore told Barker that she
had been advised by her attorney it was all right to pass
out copies of a letter of the president of the American
Nurses Association (ANA), of which ONA is an affiliate,
and she did. The letter, inter alia, states the ANA is the
union best qualified" to represent nurses and calls for
unity among the nurses. I am satisfied that the document
was in the nature of union literature, and Sizemore was
utilizing it as part of the preelection campaign. In both of
these instances Respondent violated Section 8(a)(1) of
the Act by enforcing an overly broad rule because such
enforcement of an invalid rule has no lawful basis and
has a tendency to interfere with, restrain, and coerce em-
ployees in the exercise of their statutory right to engage
in union activity. In neither case has Respondent shown
the existence of special circumstances or any adverse
effect on patient care that would render its conduct per-
missable. Moreover, employees have long sold various
products and worn various buttons without restriction.
This practice continues to the present 'and shows clearly
that the rules were disparately applied against ONA lit-
erature and buttons on the two occasions covered here.
After the trial commenced, Respondent issued a super-
seding rule that read as follows, in pertinent part:
1. No solicitation, selling, fund raising, or distribu-
tion of literature is permitted in patient care areas of
the hospital or, in non-patient care work areas
during your working time. Patient care areas in-
clude all areas utilized by patients; for example, pa-
tient rooms, adjacent hallways and patient lounges,
the physical therapy and radiology treatment areas,
outpatient clinics, etc. Non patient care areas in-
clude the cafeteria, employee lounges, private of-
fices, conference rooms, etc.
This new rule is presumptively invalid to the extent it
prohibits solicitation and distribution during employees'
working time. I make no finding in this proceeding that
the new rule violates Section 8(a)(1) of the Act because
it was not so alleged in the complaint and Respondent
24 Firmat Mfg. Corp., 255 NLRB 1213 (1981); Schwan's Sales Enter-
prses, 257 NLRB 1244 (1981).
25 Blue Cross flue Shield, 225 NLRB 1217, 1220 (1976).
553
was not put on notice that the lawfulness of the rule
would be a subject of litigation.26 ,
7. Statements of Walter Mischley
On March 18, 1980, Walter Mischley and Karen
Mehl27 read prepared speeches to assembled employees.
The General Counsel does not allege any illegality in
Mehl's speech, but contends Mischley adopted it. Mehl's
written speech contains no unlawful or objectionable lan-
guage, nor does Mischley's.
Questions were raised about Mischley's speech by Si-
zemore's testimony before she examined the written
speech:
A. He spoke third, he started out by saying that
there were only two issues that had to be negotiated
in a contract and that was wages and benefits. He
said that Middletown Hospital had the best wages
and benefits in the area and he couldn't see why we
would want to change those. He said that he had
never seen a decrease in wages and benefits, since
he had been the administrator. He also reinforced
what Mrs. Mehl had said about the fact that the
hospital would maintain the right to manage the
hospital, that the scheduling and staffing would still
be controlled by the hospital even if the contract
came about.
She continued after she examined the written speech:
A. I have some problems with that one-I believe
he said everything that is on there, but I know that
he made statements to the effect that he-there
were only two issues that had to be bargained for
and that was wages and benefits, and he also kept
stressing the fact that the hospital would maintain
the right to manage and to control scheduling and
staffing and I do not see that on there.
Sizemore's memory is, as might be reasonably expect-
ed after the passage of a year, not entirely accurate. Her
testimony that Mischley "reinforced what Mrs. Mehl had
said about the fact the hospital would maintain the right
to manage the hospital, that the scheduling and staffing
would still be controlled by the hospital even if the con-
tract came about" contains a misconception of what
Mehl actually said , which was: "In none of the ONA
contracts did any of those hospitals give up their right to
manage the hospital," and, with respect to staffing:
I know that a major concern among you is the
future of our hospital staffing patterns. Capable
nurses such as yourselves are not easy to find Kay,
myself, personnel and the department managers
have worked hard and together to build our staffing
levels and we have no intentions of changing or
losing this momentum. I personally would have
little interest in remaining your director if I believed
Zs TRW., Inc., 257 NLRB 442 (1981).
E7 The General Counsel 's witness on this topic, Gail Sizemore, identi-
fied the written speech in evidence as exactly what Mehl had said.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that staffing would be decreased , and I fully intend
to be here for a long time.
Mischley's speech states, with respect to staffing and
the management of the hospital:
I want to go on record today that I have no in-
tention of your losing ground on the tremendous
progress we have made in staffing , communications,
or working conditions . I want to' make it clear that
with or without a union we intend to manage this
hospital at its optimum level.
Our record on how we 'have exercised the right
to manage without union pressure speaks for itself.
I am persuaded that Sizemore honestly stated her con-
clusions regarding what was said about the right to
manage and staffing, but was in error.
Turning to Sizemore 's recollection that Mischley
"made statements to the effect " that only wages and ben-
efits had to be bargained for, neither written speech con-
tained any such statements . Sizemore's very testimony,
"statements to the effect," indicates that she does not re-
member exactly what Mischley may have said about the
bargainability of wages and benefits , if he in fact did say
anything about it aside from his written speech. Consid-
ering the inaccuracies of+her other recollections, I have
considerable difficulty in assigning any great weight to
her testimony in regard to wages and benefits, even
though uncontroverted , and I certainly do not think it
alone compels a fording that Mischley threatened not to
bargain in good faith.
The General Counsel argues that in the context of a
"deluge" of Respondent 's campaign literature referring
to strikes, and other statements of Respondent's agents, I
must find that on March 18, 1980, Mischley was telling
employees the ONA would have to resort to a strike to
force him to bargain over anything but wages and bene-
fits, and had adopted, by his presence , a statement of
Mehl that a strike was the Union's only weapon.
Mehl did say, without more, "The ONA's only
weapon against the hospital is a strike," and the employ-
ees present were entitled to believe that Mischley sub-
scribed to this statement , even though he said nothing
about strikes , but there is no implication in this statement
that the ONA would have to strike to force Respondent
to bargain, nor does it become anymore unlawful when
the context the General Counsel refers to is examined.
Of the 14 pages of Respondent literature the General
Counsel specifically directs me to in support of his
"deluge" theory, sometimes referred to by the General
Counsel as "bombardment," 8 pages are nothing more
than photographic copies of newspaper articles reporting
on hospital strikes in Ohio. The remaining seven pages28
consist of a one-page collage of newspaper articles about
ONA strikes and six pages - of questions and answers
about strikes at various Ohio hospitals. Not 1 of these 15
pages contains anything remotely resembling an implica-
tion of strike inevitability, and all of them read together
amount to nothing more than obvious campaign propa-
2s The General counsel 's addition is faulty. G.C. Exh . 100 A-H is
eight pages and G .C. Exh . 98 is seven pages.
ganda that any nurse was capable of evaluating . There is
no evidence this literature is not entirely truthful.
Apart from my conclusion this amount of literature in
a long campaign does not merit the grandiose sobriquet
of "deluge," also known as "bombardment." I also con-
clude it provides no reason for fording Mischley 's March
18 statements , or his adoption of Mehl's statements,
threatened employees with an inevitable strike, nor does
any of it contain such an implied threat. Similarly, the
statements by other agents with respect to strike inevita-
bility are insufficient to support the broad inference the
General Counsel would draw. In short, the General
Counsel has not shown by a preponderance of the- evi-
dence that either Mischley's statements of March 18 or
the "deluge" of literature violated Section 8(a)(1) of the
Act as the complaint alleges. Accordingly, paragraphs
6(b) and 13 of the complaint will be dismissed.
8. Conduct of Director of Nursing Kay Anderson29
On March 15, 1980 , Brenda Harrison and Sandra
Brown were discussing the Union . Brown asked Harri-
son what she thought the nurses were asking for. Harri-
son enumerated elimination of hospital request days, low
workload days, working shorthanded, and the need for
more help on the hospital units. Brown pointed out that
all these things had been corrected,S° and asked why the
nurses did not stop their ONA campaign. Harrison re-
plied that she thought they would be intimidated. Ander-
son entered the area some time during this discussion of
nurses' wants, and Brown left immediately thereafter.
Harrison said she did not like to cross a picket line, and
asked if nurses' aides would be laid off without unem-
ployment compensation if there was a strike . Anderson
assured her there would be unemployment benefits if
nurses' aides were laid off. Harrison then inquired what
would happen to aides who honored a picket line. An-
derson told Harrison she should report off-duty, and ex-
plained that pursuant to hospital policy suspension or dis-
charge was possible if Harrison failed to, report off-duty
for 2 days consecutively . I am persuaded Harrison's testi-
mony that Anderson bluntly said she would be absent
without leave and fired for honoring a picket line was a
misunderstanding of what Anderson actually said.
Anderson did not, as the complaint alleges, threaten
discharge for supporting a protected refusal to work.
On March 17 and. 18, 1980, Anderson and other man-
agement personnel addressed several groups of nurses.
Anderson first read a written speech at these meetings,
between 10 and 13 meetings in all , and then entertained
questions. A careful examination of the speech text,31 re-
29 This account is a fair synthesis of the credible evidence of the testi-
mony of Anderson , nurses aide Brenda Harrison , and nurse Sandra
Boone. Testimony to the contrary has been discredited.
30 Harrison agrees all these issues had, been corrected at the time of
her talk with Anderson and Brown.
21 The written speech is as follows:
Some of you know me very well because you worked with me
when I was a staff nurse , a head nurse, a manager and now as direc-
tor.
I only, wish that there were sufficient time, prior to Thursday, for
me to talk with each of you individually, especially those of you
Continued
MIDDLETOWN HOSPITAL ASSN.
weals nothing more than campaign rhetoric easily suscep-
tible of evaluation by the electorate. It contains no prom-
ises, threats, or other statements violative of Section
8(a)(1) of the Act, nor is there any evidence it contains
any material misrepresentation.
Judith Daniels testified that , during the question and
answer period following the speech given to her group,
Anderson said there, would be many changes if she was
just given a chance, she was riot Nadine Orr (her prede-
cessor), and needed time to ' implement these changes.
who are new to me. But since that isn't possible, I'd like to take this
opportunity to share my views of professional nursing and the ONA
with you.
First of all, let me say that I am proud to be a nurse . The delivery
of the highest quality of patient care has and always will be my pri-
mary goal. Equally important to me is that an environment exist that
recognizes you, the nurse, as part of the patient care process. The
only way that these goals may be achieved is that we have sufficient
numbers of nurses to provide optimum care and that each nurse is
given the opportunity to have input concerning the method of deliv-
ering nursing care to our patients , as well as input concerning our
working conditions.
I doubt that Gertrude Torres of the ONA, and Barbara Nichols of
the ANA would disagree with anything I have said. But I strongly
disagree with them in one important area , and that is the method of
attaining these goals.
First let me say that I am not anti-union, nor am I anti-ONA. I am
pro-employee, pro-nursing and a member of the ONA. There may be
some situations in which collective -bargaining is necessary . I do not
believe that situation exists here.
I believe that an atmosphere of openness and honesty can achieve
far greater results for us all. Speaking up as professional nurses in
professional circumstances is far more desirable than being bound by
work rules and contracts.
During my 18 months in the emergency room , I worked very
hard with the nursing staff, the medical staff and administration to
identify and correct problems existing there.
We knew that the image of the E.R. within the community has
been poor overall, together we problem solved, and the results have
been very satisfying for the staff and patients alike.
As a result of input from nurses, we increased RN staffing by 5
frill-time equivalents; created a triage technician position ; and imple-
mented the, employee health nurse position . My efforts brought the
nurse closer to the bedside , allowed her to practice in a professional
manner, and expanded her role.
I feel that my working relationship with the RN staff has been
both positive and progressive. My concepts of quality patient care,
and professionalism have not changed . I bring with me the same
ideas and commitment to doing my utmost to promote modem nurs-
ing practices at Middletown Hospital and I know that these are the
same concepts and commitments yrou as professional nurses believe
in. I hope you will all give me the chance to do these things without
the wedge that unionization would create.
Since I have become director, I have had the opportunity to work
closely with Walter Mischley, ' Karen Mehl , and the other division
heads. I have found all of them willing to listen, willing to cooper-
ate, and willing to back me when changes were necessary.
In addition, singe returning to the medical/surgical division, I have
been listening to you . Given the constraints of this election process, I
have responded where possible. I want to assure you that this will
continue
Over the past few days, we have presented you with significant
facts on the ONA, backed by documentation. You have seen the his-
tory of the ONA both at the bargaining table and on the picket lines.
Collective bargaining, here, would be at best , a second rate alterna-
tive, when a first rate one is possible . We deserve better. I think we
can accomplish a lot more through working together to better this
hospital - and our working situations than by ,opposing each other at
the bargaining table.
I hope that on Thursday you will support the efforts of Karen and
myself and give us the opportunity to prove to you and to this com-
munity that our problems, both current and future, can be positively
resolved without third party pressure or intervention,
555
She, continued that she was aware of the problems,
would personally correct them herself, and made refer-
ence to the need for bed lights and brushes. According
to Daniels , another nurse complained that problems were
not getting through to the supervisors„ to which Ander-
son said she would always hear nurses ' problems . Ander-
son said , in response to another question , that there
would be no retaliation or recrimination against a nurse
presenting a problem . Daniels adds that the only specific
change Anderson mentioned was that she would person-
ally look into the, staffing problem. Daniels, who the par-
ties agree is an expert witness on the subject , testified the
staffing was dangerously inadequate in her expert opin-
ion, but had been improved in the winter of 1979.
Gail Sizemore avers that at her meeting Anderson said
exactly what is in the written speech, but also said that
she was not Nadine Orr and would make changes.
Rhonda Cottinghim recalls Anderson mentioning no
specific problems but merely announcing she had, just
become director of nursing and, hoped the employees
would give her and the administration a chance, to work
out the problems they,had1
Gladys Wolfe recalls that Anderson told the nurses to
be sure they voted regardless of their feelings about it,
that Anderson was a member of ONA, but felt nurses
could handle their problems without outside influence,
and she would like them to give her a chance to give
them a chance. Wolfe first did not recall that Anderson
used the word "changes," but -stated she thought that
was what Anderson meant, On further questioning by
the General Counsel, Wolfe testified that Anderson said
there had been changes in the past and there would be
more changes made if "you give us an opportunity." I
credit Wolfe's second recollectin because it is consistent
with the testimony of Daniels and Sizemore.
Deborah Parr does not recall specifically what Ander-
son said after her prepared speech.
Barbara Pfeiffer testified that Anderson promised no
specific benefits, and just said she was a problem solver
and to give her a chance.
It is not clear whether Daniels, Sizemore, and Wolfe
were in, the same or different meetings. This is of no
great consequence inasmuch as their testimony on
changes is complementary regardless of whether the
three nurses heard it at different speeches or the same
one.aa
Anderson concedes she did say that she was not
Nadine Orr, but denies promising any changes in wages,
hours, or, working conditions. Anderson was somewhat
evasive on cross-examination, tending to answer ques-
tions with generalized explanations rather than direct an.
swers. The employees' testimony on the subject of
changes is more believable and is credited.
The purpose of Anderson' s presentation was obviously
to persuade nurses to vote against ONAi This is not in
itself unlawful, and I do not believe the evidence sup-
ports a fording of any specific action promised. Never-
theless, Anderson's comments during question and
32 The testimony of Cottingham, Parr, and Pfeiffer neither adds to nor
subtracts from the testimony of Daniels , Sizemore, and Wolfe.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer periods that she would make changes if given a
chance most reasonably reduces itself to an implied
promise to be responsive to the nurses' needs if they for-
bore from selecting ONA to represent them. 33 That An-
derson chose not to "commit Respondent to specific cor-
rective action, 'does not cancel the employees' anticipa-
tion of improved conditions if the employees oppose or
vote against the union ."34 Accordingly, I find and con-
clude Anderson violated Section 8(a)(1) of the Act by
promising"employees improvements in their working
conditions.
9. Conduct of Clinical Coordinator Wanda Blade
Blade and nurse Mae Fox are in essential agreement,
and I fmd , that Blade called Fox on March 19, 1980, and
asked if Fox had received a letter from Dr. Lang-
worthy.3a Fox had not. Blade urged Fox to read the
letter and consider everything therein. The letter recites,
inter alia, "Look around you now, staffing and lines of
communication and cooperation have improved and they
will get better yet." I conclude that Blade was referring
to this passage when she then stated that Respondent
was aware there were problems , was working on them,
and should be given a chance. In any event, her state-
ment on problems fairly carries an implied promise that
Respondent would remedy employees' problems if given
a chance (i.e., if the employees did not select,ONA in
the election), tended to restrain Fox in her selection of a
representative of her own choosing, and violated Section
8(aXi) of the Act.
Nurse Turner testified that on March 19, 1980, Blade
interrogated him with regard to his attendance at an
ONA meeting the night before and what had happened
there, particularly what had ONA representative Wil-
liams said to certain employees . According to Blade, she
did not ask Turner about his union activities, attendance
at union meetings, or anything else. Her version is that
she and nurse Sandy Brown were discussing the ONA
meeting of the previous night wherein two employees
left the meeting because they could not get their ques-
tions answered . Blade's recollections were not as certain
as Turner's, and Respondent proffered no testimony
from Brown in support of Blade's version even though
Respondent called Sandra Brown to testify on other
topics. I credit Turner and find that Blade coercively in-
terrogated him concerning his union activities and those
of other employees, and thereby violated Section 8(a)(1)
of the Act.
Nurses Judith Daniels and Larry Turner attended a
departmental meeting a week or two before the March
20 election. It was chaired by Nurse Manager Ada
Newby, and Wanda Blade was also present.
' ;a. Daniels ' version
Blade asked her if she knew that in New Jersey there
was a butcher's' union that spoke for nurses and did she
want a meatcutter having negotiations . Daniels said she
sa S L Industries, 252 NLRB 1058 (1980).
as Reliance Electric Co., 191 NLRB 44, 46 (1971).
as This refers to a letter authored by Langworthy under his personal
letterhead and sent by him to employees on March 13.
thought professionals did that but it was alright with her
if he could get what she wanted. Blade said if they
wanted a union to come in they would lose all their ben-
efits, including the 10-percent raise they received the
previous January . Daniels disputed this . Blade said there
would be a strike . Daniels asked why she was talking
about strikes . Blade said that the ONA always strikes,
and they had data that the ONA always strikes a hospi-
tal. Blade continued that if ONA came in she would be
unable to change schedules and then illustrated by saying
that if two people wanted to change times she could not
do it and if she did there would be a grievance filed
against her. Daniels said she did not think that was the
way it worked if two people had not agreed to it. Blade
said that it was true that he would not be able to change
time at all . Newby turned to Larry Turner and said
Blade was right.
b. Turner's version
Newby handed them a bunch of anticollective-bargain-
ing literature and started talking about it and collective
bargaining in general . She talked mostly to Judy Daniels
about whether they would want butchers and people like
that to organize with them as some people elsewhere
had. Daniels said that as long as they could solve some
of the things that needed to be solved that would be sat-
isfactory. Newby mentioned strike or something at dif-
ferent places . Blade was talking about being able to
adjust schedules and whether she would be able to adjust
them with a union . Daniels said she thought Blade could.
Newby asked Turner what he thought. He said he could
not see why she could not adjust the time, it would all
be negotiable . Blade said if she wanted to change the
scheduling the Union would stop her from doing that.
He said that he thought they could change it.
c. Blade's version on direct examination
A week or two before the election at a departmental
meeting she did have a conversation with Judy Daniels
about the Union. They were talking about the Union and
that there was a possibility they would not gain benefits,
could lose benefits, and there could be a strike if the
Union came in. They also talked about'scheduling, that if
someone wanted their time changed now, and there was
agreement with the other person affected, the time was
changed. Blade said that there was a possibility if the
Union came in, if the contract said so, they may have to
have a third person to okay it. They talked about the
possibility there could be some bargaining. She did not
tell Daniels that if the Union were elected then the
nurses would lose all benefits, nor did she tell her that if
the Union were elected there would be a strike. She did
not tell her that if, the Union was elected that Blade
would be unable to ever change schedules again.
d. Blade 's version on cross-examination
Blade did not remember whether the Union was the
major topic of conversation. She did' not remember any
other topics coming up. She did not know who brought
up the Union. She just remembered that it was a group
discussion. She did not remember what happened after
MIDDLETOWN HOSPITAL ASSN. 557
Newby called the meeting to order, but did recallthe
Union was discussed, and Blade said there was a possibil-
ity of losing benefits. She had gotten that information
from reading articles in nursing magazines . She did not
remember if she was given this information at some
other meeting , but she did have information at home.
With respect to the scheduling changes, she said she was
just trying to show that today they do things a certain
way but it could be changed if the contract said so and
they might have to' go to a third person. They were talk-
ing about the possibilities of all the other occurrences,
and this happened in the course of the conversation. She
did not remember how long that portion went on. She
said that there would be a possibility of a strike. She did
not remember who brought the topic of strikes up. She
did not remember the details with specificity.
e. ConcluTions
Turner's recitation struck me as strained and uncertain.
Daniels and Blade agreed they talked to each other
about the Union , benefits, strikes, and scheduling. I
therefore do not credit Turner that it was Newby talking
to Daniels. Daniels' version is more convincing than that
of Blade who suffered from uncertainty and lapse of
memory-36
Blade's statements threaten the loss of benefits and the
inevitability of a strike if the nurses selected the ONA.
Blade's threats, in which Newby apparently acquiesced,
violated Section 8(axl) of the Act.
10. Conduct of Clinical Coordinator Helen
Converse
Nurse Marcia Halsey first testified about a week
before the representation election Converse told her and
others, "Ltjhe hospital had no intention of bargaining
with ONA about the Union, and if the union did ... get
in, that the hospital, had intentions of bargaining. And
that if nurses went on strike, that he would be replaced."
This ambiguous testimony was clarified by Halsey on
cross-examination to, "She just said as I said before, that
the hospital had no intention of bargaining with ONA
about the union." Considering the fact that Respondent
has consistently contested the appropriateness of the unit
within which the election was held it is probable that
Halsey is using the word "unit" interchangeably with
"union," and she is in fact testifying that Converse told
her there was no intention of bargaining with ONA over
the unit. In any event, nurse Janet Salyers confirms that
Converse said the Hospital would not negotiate with
ONA, and that the nurses would be forced to strike if
ONA won the election, and could possibly be replaced.
Salyers' memory is suspect because she had no clear
recollection of what else was said , but I do not consider
it unusual that she would more clearly remember a state-
ment of such ominous import.
Converse denies being 'a party to such a conversation.
It is ' possible that Converse simply does not recall it, but
the testimony of Salyers and Halsey is mutually corrobo-
"s The failure of Newby to testify in support of Blade suggests she
would not corroborate Blade.
rativeand was -delivered before me without any appear-
ance of manufacture or dissembling . I therefore credit
Salyers and Halsey and find that Respondent, by Con-
verse's statements , did threaten to refuse to bargain with
ONA if it won the representation election, and thereby
violated Section 8(a)(1) of the Act. Similarly, the state-
ment that nurses would be forced to strike, linked as it is
with a threat to refuse to bargain, reasonably and quite
clearly conveyed the message that a strike would be in-
evitably caused by Respondent's bargaining tactics, and
therefore restrained and coerced employees in violation
of.Section 8(a)(1). It is by, now axiomatic'that an employ-
er who predicts strikes and the futility of bargaining as a
consequence of unionization acts unlawfully. Whether or
not Converse was privy to Respondent's intention, Re-
spondent is liable for the statements of its statutory su-
pervisors. Respondent's employees are under no obliga-
tion to inquire further to ascertain the truth of those
statements, and may reasonably be expected to consider
them as authorized by Respondent.
11. Conduct of Nurse Manager Darlene Deck
A few days before March 20, 1980, Deck called nurse
Toni Rogers and asked her if she had decided how she
was going to vote in the upcoming representation elec-
tion. Rogers said she would vote for ONA. Deck then
stated that some of Respondent 's campaign literature7
mentioned strikes; that strikes sometimes lasted a long
time and the employees sometimes ended up with less
than they started with, and when employees went on
strike the bargaining started at zero. I agree with the
complaint allegation that Deck interrogated her subordi-
nate concerning her union sympathies , and that the inter-
rogation was coercive by virtue of Deck's position in
direct control of Rogers' workday. Accordingly, I find
the interrogation violated Section 8 (a)(1) of the Act.This
evidence does not , however, support the allegation that
Deck threatened an inevitable strike. On the other hand,
the statement that bargaining started from zero when
employees went on strike conveyed the implication of a
loss of existing benefits if employees struck , and amounts
to a threat of reprisal for protected union activity that
also violates Section 8(axl) of the Act.38
12. Conduct of Clinical Coordinator Judy
Gardinelli
On March 19, 1980, Clinical Coordinator Judy Gardin-
elli called nurse Toni Rogers on the phone" and asked
if she had received Respondent's campaign literature.
Rogers answered that she did not . Gardinelh continued
that her husband had been on a teachers' strike for a
long time and the teachers did not get everything they
wanted. Rogers was not sure whether or not Gardinelli
said bargaining would start at zero. I conclude and find
37 Rogers had not received this literature.
38 The bargaining from zero statement was an integral part of the con-
versation alleged to be unlawful, and is part of Rogers ' uncontroverted
and credible testimony , and is closely related to the subject matter of the
complaint Accordingly, it may be found a violation of the Act. Acker-
man Mfg. Co., 241 NLRB 621 (1979).
39 Rogers was on maternity leave.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel has not proved that Judy Gardinelli
either threatened the loss of benefits or that bargaining
would start at zero if the ONA were selected by the em-
ployees to represent them.
13. Statements of Nurse Manager Judy Kunze4o
On January 7, 1980, nurse Gail Sizemore told Kunze
that she had been subpoenaed to testify in the Board rep-
resentation hearing on January 9. Kunze cautioned, "I
hope you know what you are doing, I'd hate to see you
get hurt." After Sizemore responded that she felt she had
to try, Kunze asked what more nurses could want inas-
much as they had better staffing, better scheduling, and
every other weekend off. Sizemore replied there were
other problems . Kunze then asked if Sizemore did not
think the tension in the department had improved. This
had reference to the fact that a disliked clinical coordina-
tor had left the department . Sizemore opined that tension
had improved , and Kunze said the administration was
still concerned about the department and were consid-
ered dispersing the nurses to different floors.
The General Counsel urges that Kunze threatened Si-
zemore "concerning" her testifying, and further threat-
ened employee transfer because of her ONA activity. I
am not at all convinced that Kunze had any intention of
threatening Sizemore with respect to her testifying, but
intent is not a necessary ailment in ascertaining whether
a statement violates Section 8(a)(1) of the Act. Even
though I consider it somewhat doubtful, it is reasonably
arguable that Kunze's cautionary statements with respect
to Sizemore's subpoena to testify may well have tended
to restrain Sizemore in the exercise of her right to prof-
fer testimony in furtherance of her activity on behalf of
the Union. Accordingly, I find the General Counsel has
established a violation of Section 8(a)(1) by a preponder-
ance of the evidence.
I do not agree that Kunze was threatening to transfer
nurses because of union activity. The evidence indicates
the "tension" she referred to grew out of the nurses' dis-
satisfaction with their supervisor, and had nothing to do
with union activity. That the tension thus engendered
did not immediately dissipate with the departure of the
disliked clinical coordinator does not in itself establish
that continued tension in the department arose from
union activity . I do not believe that Kunze's remark
amounts to anything more than that possible disperse-
ment of the nurses in order to alleviate the residual ten-
sion was being considered, nor am I persuaded that her
remarks in this regard had any reasonable tendency
either' to (a) convey the idea that dispersal was afoot to
discourage union activity , or (b) restrain or coerce Size-
more in the exercise of her statutory rights.
Deborah Parr first testified that Kunze told her, that if
the ONA got in employees would start with no benefits,
would start at zero, and would negotiate for every bene-
fit they would get, and might actually lose benefits. On
cross-examination she gave the following version, which
impressed me as more certain than her earlier testimony
and is credited:
40 Kunze did not testify.
A. Well, she said that when we sit down to bar-
gain that we would start with no benefits at all, and
that each benefit would be negotiated between the
two parties, and that we might actually end up with
less benefits than we started with.
Q. Can you recall anything else she said in that
conversation?
A. No, she just said did I realize what I would be
doing if I actually asked for this to happen, that we
might strike, and that would hurt more than just the
nurses; that it would hurt the whole hospital.
I have considered from Parr's change in testimony that
the reference to "zero"" was her understanding of what
Kunze said, not what Kunze actually said . I also recog-
nize, however, that "starting with no benefits" is a fair
equivalent of "bargaining from, zero" or "bargaining
from scratch," and may or may not be an unlawful state-
ment depending on the context within which it was
made.41 The applicable context here is provided by simi-
lar statements by Newby and other violations of Section
8(a)(1) found in this decision. Moreover, Kunze's com-
ments on their face carried commencement of bargaining
until each was negotiated. The fact that Kunze adverted
to the possibility of less benefits as a result of bargaining
is insufficient in my opinion to alert employees to the
fact there might be more or better benefits flowing from
negotiations. Kunze thus presented considerably less than
a balanced picture of the possibilities inherent in collec-
tive bargaining on benefits, and the most reasonable im-
plication of her statements is that employees would lose
their benefits now enjoyed and any benefits restored
through bargaining might well be less than what employ-
ees previously had. It may be that Kunze said more than
Parr recalls, which possibly ameloriated the effect of her
advice there would be no existing benefits to start with,
but this is pure speculation in the absence of any support-
ive evidence. On the credible evidence I conclude and
find Kunze did threaten Parr with the loss of benefits if
the ONA were successful in securing representation
rights for the nurses' unit . The coercive nature of such a
threat is obvious, and the threat violated Section 8(a)(1)
of the Act.
On March 12, 1980, Kunze called nurse Jo Back into
the conference room. They sat down on opposite sides of
a table on which there was literature containing com-
ments about strikes. After Back read one of the docu-
ments, a letter to nurses from Respondent dated March
12, 1980, which stated, inter alia, "You can lose your
job142 The law states that economic strikers can be per-
manently replaced."43 Back told Kunze that she found
this statement threatening. Kunze responded that Back
could call it what she liked and the Hospital had to take
a stand. Kunze then asked if it came down to it would
Back go out on strike. Back replied affirmatively. Kunze
expressed surprise at Back's answer. -
41 Wagner Industrial Products Co., 170 NLRB 1413 ( 1968).
42 Emphasis present in the original.
43 A less than complete exposition of the reemployment rights of eco-
nomic strikers. See the Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414
F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
MIDDLETOWN HOSPITAL ASSN.
By asking Back if she would go out on strike , in the
absence of any justification therefor, Respondent by
Kunze coercively interrogated Back with respect to her
union sympathies . This violated Section 8(axl) of the
Act, as does the portion of the March 12 letter that erro-
neously tells employees that if they engage in an eco-
nomic strike they will permanently lose their jobs. Piezo
2'echnolog,ip, 253 NLRB 900 (1980).
Nurse Francis Giltrow gave the following testimony
with regard to a one -on-one meeting with Kunze in the
conference room during the week preceding the March
20, 1980 election:
Direct examination
Literature was on the table-about ONA orga-
nizing in other places, and-various statements on-
in this literature were underlined , and she drew my
attention to that.
She talked about if ONA did get in, there would
be no more special days44 granted to us, that some-
one else would be making out the time.
... she said that she had also been lenient about
our coffee break, and our lunch hours, and that that
would no longer be if we were-if ONA did in fact
get in.
We, would have to punch a time clock. She also
stated that the hospital was not, obligated to-bar-
gain with us , where we were at that time , or with
what we had.
Cross-examination
I would like to draw your attention to your
conversation with Judy Kunzy.[sic]
Q. Did Miss Kunzy [sic] tell you that a union
contract would probably result in more specific
rules regarding time keeping and scheduling and
what not?
A. Yes.
Redirect examination by the General Counsel
Q. With respect to your conversation with Miss
Kunzy [sic], do you recall what was said about a
contract in particular?
A. As I recall, the actual ONA contract was not
mentioned, per say [sic], other than what was on
the pamphlets on the table.
The things that I had mentioned before were
stipulated as if the union gets in.
Q. Was there any connection with a contract at
that point? With regard to the other things that you
mentioned to me-on your direct testimony?
A. I cannot remember actually contract being
linked to that, no.
44 A special day is a requested day off for personal reasons that is ac-
commodated by a shifting of schedules to ensure the nurse taking the day
off will lose no work hours.
559
Redirect examination by Charging Party
Ms. KALHORN: Can you respond to if you can
repeat the testimony-can you indicate exactly
what the conversation was between you and Miss
Kunzy [sic] concerning the time clocks?
THE WITNESS: She said that we would no longer
be granted our special days off. And that she was
lenient about coffee breaks and lunch hour, and we
would not-someone else would be making out the
time as far as the special days were concerned.
Then she said that as far-she was lenient about
our coffee breaks and our lunch time-and that-
we would have to punch a time clock.
Recross-examination
Q. Now, is your recollection clear enough of this
conversation to distinguish between would and
could?
As far as the-the words in Miss Kunzy's [sic]
conversation with you? _
THE WITNESS: No, I'm sorry, it isn't.
Giltrow's testimony on direct and redirect examination
is consistent, but her testimony on cross-examination puts
an entirely different light on Kunze's statements. If
"could" is substituted for,"would" in Giltrow's direct
testimony its tenor is markedly changed. It is fair to con-
clude from her testimony that Giltrow's recollections are
confused, inconsistent, and unreliable. The General
Counsel has not shown by a preponderance of the credi-
ble evidence that Kunze's statements violated Section
8(a)(1) of the Act. '
On March 27, 1980, Kunze called Sizemore into her
office and told her "they" were trying to get a doctor-
nurse committee together , Kunze asked Sizemore to
nominate people for the committee who were strong, ag-
gressive , and verbal, and to give Kunze a list of nomina-
tions by April 6. Kunze also asked what problems Size-
more felt were still in existence . Sizemore mentioned the
need for a stronger housekeeping department because the
walls, rugs, and curtains needed more frequent cleaning.
Sizemore also suggested 'that any registered or practical
nurse with more than 12 patients assigned to his/her
wing should have a treatment nurse as a helper.
Kunze's conjoining of the committee - with the invita-
tion to Sizemore to advise her of continuing problems
reasonably tended to convey that the committee was
being formed to deal with those problems and that em-
ployees were being solicited to take part in such a com-
mittee. As discussed elsewhere in this decision, I have
found that the committee was erected to lure nurses
from supporting the ONA, and I further find that the so-
licitation of employees to participate in the committee
was also designed to further that end. Sizemore's sugges-
tions were in the nature of workrelated grievances, and
Kunze's request for "problems" was not limited to,those
unrelated to wages, hours, and working conditions.
A question concerning representation existed on
March 27, 1980, and Kunze's effort to enmesh Sizemore
and other` employees in the construction of a committee
to handle matters that might well be within the province
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the ONA in its representative capacity should it be
successful in securing Board certification as collective-
bargaining representative had a reasonable tendency to
restrain and coerce employees in the exercise of their
statutory right to select their own representative without
employer interference and violated Section 8(a)(1) of the
Act.
Respondent, by Kunze, also violated Section 8(a)(1) of
the Act by soliciting grievances from Sizemore . Objec-
tions to the election were filed on March 27, 1980, and
ONA was continuing in its efforts to represent the nurses
when Kunze asked Sizemore about "problems ." An em-
ployer unlawfully interferes with employees' rights by
soliciting grievances during an organizational campaign
when the inference thereby raised that the employer is
promising to correct the solicited grievances goes unre-
butted .45 Respondent has not rebutted the inference
raised by Kunze's solicitation , and the announcement of
a committee to resolve the "problems " enforces it.
14. Conduct of Clinical Coordinator Amy Linden
A week or two before the election, Linden told nurse
Gwendolyn Cluverius that if the nurses were represented
by a union the Respondent would have to stick by
posted schedules and would not be able to give employ-
ees days off as they now do because it would be out of
Respondent's hands. There is no evidence that the Union
was advocating or would seek a more strict adherence to
established schedules , nor is there any other reasonable
basis on which to ground a conclusion that the Respond-
ent would be required by the Union to be more strict in
this respect. Linden's statements amount to a threat of a
change in working conditions adverse to employee inter-
ests if the Union succeeds in its representation efforts,
and imply that the onus for such changes would rest
with the Union. Both the threat and the effort to shift
the blame to the Union had a reasonable tendency to
interfere with, restrain, and coerce Cluverius in the exer-
cise of her Section 7 rights, and violated Section 8(a)(1)
of the Act.
15. Conduct of Nurse Manager Mary Ann Meredith
The complaint , as amended , alleges that Meredith, in
late 1979 and February and March 1980 threatened em-
ployees with loss of benefits and that bargaining would
start at zero if ONA were selected. A March 1980 threat
of an inevitable strike is also alleged.
Nurse Roger Brewer testified to a meeting of employ-
ees that was conducted by Meredith between November
19, 1979, and December 12, 1979. He avers that Mere-
dith said she wanted to explain that when bargaining
begins both parties start at zero, with the Hospital not
expecting work and employees not expecting wages and
benefits, and also emphasized it would be difficult to get
rid of the ONA once it was in.
Nurse Judy Ulman testified to a similar meeting more
than 3 months prior to the March 20, 1980 election. It
was in the operating room, as was the one Brewer at-
tended, and I conclude Ulman was probably referring to
45 Uarco Inc., 216 NLRB 1, 2 (1974).
the same meeting as Brewer was. All that Ulman recalls
is Meredith saying if the employees had a union they
would be starting their benefits from zero.
Nurse Joyce Batze recalls a meeting , which she places
2 or 4 weeks before the election, when Meredith said
employees would bargain from zero and would not start
with what they had. Batze testified Meredith also asked
if the technicians realized that if there was a strike, and
there most probably would be, that they would not be
able to get into their jobs. She recalls nothing else said at
this meeting.
Although Meredith impressed me as a candid witness
testifying credibly, her denials that she told employees
the Hospital would bargain from zero relate to meetings
in February and March 1980. She was not asked about
the 1979 meeting. I therefore conclude that the uncon-
troverted testimony of Brewer, supported somewhat by
Ulman's weaker recollection, must be credited. The
advice that bargaining would start at zero, together with
the statement the Hospital would expect' no work and
the employees no wages or benefits, reasonably tended to
threaten employees with loss of employment and existing
benefits if they selected the ONA to bargain for them,
and violated Section 8(a)(1) of the Act.
Meredith's testimony with respect to meetings is sum-
marized in the following two paragraphs.
Meredith had two informal meetings among the nurses
in her department in February 1980 during which the
ONA was discussed. Both were on the same day and she
said the same thing at both. She told the nurses that she
was concerned that they needed to know some informa-
tion about the upcoming election so that they could
make an intelligent decision and know both sides of the
story when they voted at the election. She told them
that often when someone considers a bargaining agent he
thinks he is going to get more benefits, but that might
not necessarily be the case, and that all benefits and
wages would be negotiated,' and the fact that they had
benefits today would not necessarily mean that they
would retain those benefits after the ONA bargained for
them. She went on to say that in any type of bargaining
situation it was give and take and sometimes they could
lose benefits and the bargaining agent might give up
some of their benefits in order to get something else. She
told them she did not know all the answers but wanted
to encourage them to ask any questions that they had.
She cannot recall what questions were asked. Nor does
she remember anything more that was specifically said at
the meetings. She did not tell employees wages or bene-
fits would be zero or the Hospital would bargain from
zero.
In March 1980 she made an announcement at the end
of the regular departmental meeting that the election
would be held and that the nurses would be given time
off from their duties to vote. She emphasized that it was
extremely important for each nurse to exercise his/her
right to vote at the election. She also asked for any ques-
tions from the other nonnursing employees at the time.
One of the technicians asked if there was a strike would
they be expected to cross the picket line or would the
Hospital want them to cross the picket line. Meredith
MIDDLETOWN HOSPITAL ASSN. 561
said that if there was ever a strike they would want all
employees to cross the picket lines. She did not tell em-
ployees their wages or benefits would be zero if they
voted for the Union or that the Hospital would bargain
from zero.
I credit Meredith's testimony over that of Batze,
noting that Meredith was a most impressive witness,
whose testimony was straightforward and believable. In
short, her demeanor and delivery was more impressive
than that of Batze, who purports to recall little of the
meeting other than matters alleged . Moreover, I am per-
suaded Batze's testimony is a confused amalgamation of
portions of two meetings into one. Accordingly, I find
Meredith did not say employees would bargain from
zero, did not say employees would not start with what
they had, and did not threaten an inevitable strike as the
complaint alleges.
Nurse Mary Hackney Simmons gave credible uncon-
troverted testimony that Meredith talked to her privately
2 or 3 weeks before the election. At the outset, Meredith
handed Simmons some literature, including a Board deci-
sion on employer statements and some newspaper clip-
pings on long nurses' strikes at other hospitals. After
Simmons read them, Meredith asked if Simmons had any
questions and said she would not ask Simmons' opinion,
but it would be fine if she wanted to say anything about
the handouts or to share her feelings about the ONA
campaign.
Meredith did not threaten Simmons with an inevitable
strike, and the use of the clippings was nothing more
than campaign propaganda . In this connection I note that
Simmons had earlier been advised by ONA representa-
tives of statistics on nurses' strikes that were lower than
those proffered by Meredith. Meredith did, however, im-
permissably solicit Simmons' views on the ONA cam-
paign, and thereby violated Section 8(a)(1) of the Act.
This was unlawful interrogation cast in the guise of per-
mitting Simmons to freely comment.
16. Conduct of Clinical Coordinator Jennifer Moore
A couple of days after the election,46 nurses Turner
and Daniels were talking to each other in Moore's pres-
ence. Turner asked Daniels if she thought there would
be any retaliation after the election. Daniels said it was
possible. Turner' then asked Moore if she thought there
would be any retaliation. Moore replied that there prob-
ably would be.47
Although the identity of the party or person who
might possibly, or probably engage in the retaliation was
not specifically mentioned by anyone it appears rather
obvious to me that the reference was to action flowing
from the Respondent. Established Board precedent re-
quires me to find that Moore's prediction of probable
future retaliation, although emanating from the lowest
level supervisor as a mere opinion in response to a ques-
49 The complaint alleges about March 22, but it was stipulated the par-
ticipants in this incident did not work together on that date, but did on
March 24 . The pleadings are broad enough to cover the event that wit-
nesses Daniels and Turner place a few days after the election of March
20. See, e.g., Omico Plastics,- 184 NLRB 767, 770 (1970), with respect to
this immaterial variance between pleadings and proof.
47 I do not credit Moores denials.
tion, reasonably tended to coerce employees and violated
Section 8(axl) of the Act.48 In arriving at this conclu-
sion I do not in any way rely on Turner's conflicting
representations at trial andin his pretrial affidavit with
respect to whether or not it appeared to him Moore was
threatening him and Daniels because ,it is immaterial.
17. Some statements of Nurse Manager Ada
Newby49
On January 10, 1980, Newby gave nurses Larry
Turner and Anita Waddles their paychecks that included
a recent wage increase. Newby took the occasion to ask
both of them why, with those wages, did they want a
union. Newby's inquiry into the reasons why Turner and
Waddles wanted a union was coercive because such an
inquiry "conveys an employer's displeasure with employ-
ees' union activity and' thereby discourages such activity
in the future."50 That Turner may have been an open
union supporter, and that Newby made no attendant
overt threats, do not lessen the coercive, impact of the
question.5 r Accordingly, I find Newby coercively inter-
rogated employees with respect to their union sympa-
thies and thereby violated Section 8(a)(1) of the Act.
Later the same day, Turner was discussing collective
bargaining with nurse Brown when `Newby joined the
discussion. Newby ventured that she believed in collec-
tive bargaining , but thought ONA would be a backward
step because the nurses would have to give up benefits
like the wage increase' they had just received and bar-
gaining would start from scratch. Newby also noted that
she would be willing to go along with other organizing
efforts, like an independent union, and that if the nurses
would give her' a year to work out the problems every-
thing would work out. When ' Turner said he thought
collective bargaining could improve nursing as a whole,
Newby rejoined that he had better worry about his job
at Middletown Hospital instead of nursing as a whole. I
conclude and find Newby violated Section 8(a)(1) of the
Act by: (a) threatening employees with the loss of bene-
fits like their recent wage increase if they selected ONA
to represent them; (b) encouraging employees to abandon
ONA and form an independent union; and (c) by con-
veying to Turner that his job was in jeopardy because he
favored collective bargaining. Each of these items is an
independent violation of Section 8(a)(1) of the Act, be-
cause each clearly has 'a reasonable tendency to restrain
and coerce employees in the exercise of their Section 7
rights.
In January or February 1980, Newby called nurse Jen-
nifer Sliger into her office and said' that she was sur-
prised Sliger would ' support a union because she knew
Sliger was from an antiunion family. Sliger had never ad-
vised Newby of her union sympathies, nor is there any
evidence to support a fording that Newby knew of them.
There is no legitimate reason in the record for Newby's
actions in calling Sliger to her office and talking about
the Union. I am persuaded that ,Newby's comments con-
48 PPG Industries, 251 NLRB 1146, 1147 (1980).
49 Newby did not testify.
so PPG Industries, 251 NLRB 1146, 1147 (1980).
51 Ibid.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stituted interrogation into Sliger's union sympathies be-
cause they were reasonably calculated to elicit a re-
sponse, and a response would require Sliger to make
known her feelings toward the ONA. The fact that
nurses do casually enter and leave Newby's office does
not diminish the coercive impact of being peremptorily
called in and then confronted with the displeasure of
Newby with union sympathies . It is obvious that
Newby's surprise was not a pleasurable one, and the fact
Newby was displeased could not help but be readily ap-
parent to Sliger. I conclude and find Newby's statement
was coercive interrogation violative of Section 8(a)(1) of
the Act.
Later the same week, Newby again called Sliger into
her office. This time Newby stated she would be disap-
pointed if the Union came in because it would be diffi-
cult for nurses'to receive any benefits' that might be of-
fered them in the future. This was not part of a reasoned
discussion of the possibilities inherent in the collective-
bargaining process, but was nothing more than a contin-
ued effort by Newby to dissuade Sliger from supporting
the Union by expressing her personal displeasure with
such support and issuing an implied threat of loss of
future benefits. The failure of Newby to testify requires
that any ambiguities in her reported comments be con-
strued against her, consistent with the general principle
that ambiguities are construed against the utterer. Ac-
cordingly, I find and conclude Newby threatened Sliger
with the loss of future benefits if the ONA were selected
to represent her in collective bargaining. This threat had
a reasonable tendency to coerce and restrain Sliger in the
exercise of her statutory rights, and therefore violated
Section 8(a)(1) of the' Act.
On March 21, 1980, the day after the representation
election, Newby told nurse Judy Daniels not to feel like
a loser, and went on to say there would be many
changes in the Hospital including a doctor -nurse commit-
tee but she could not talk about these things for at least a
week after the election. I conclude from her proviso that
Newby was aware of the period within which objections
to the election might be filed, and was also aware that
the election results were therefore not yet final when she
spoke to Daniels.52
A couple of days after the election, apparently after
she talked to Daniels, Newby told nurse Mae Fox not to
feel bad because ONA53 had lost the election. Fox said
she did not feel bad because she felt a lot had been ac-
complished. Newby agreed, stating the Hospital had
been aware of staffing problems and would correct them.
Noting that Newby initiated both conversations by
calling Daniels and Fox aside, and further noting that
she volunteered the hospital was going to make some
changes including the formation of a doctor-nurse com-
mittee,and the alleviation of staffing problems, I am per-
52 Sec. 102.69(a) of the Board's Rules and Regulations provide, inter
alia, a 5-day period after the parties to an election have been furnished a
tally of ballots for the filing of objections to the election . Sec. 102.69(b)
provides for the issuance of an appropriate certification of results and the
closing of the proceeding , in the absence of objections to election, after
the 5-day period has run.
ss Fox said, "they." I conclude Newby was referring to the ONA,
which did indeed lose the election.
suaded that the purpose of Newby's statements .was not
only to cheer up union adherents in what appeared to be
a losing cause and thus engender a kindly feeling in them
toward the Hospital, but also to convey to them that the
Hospital would move to remedy some of their problems.
At the time of Newby's statement, and continuing to
date, a question of representation yet existed. That being
the case Respondent was not free to promise benefits be-
cause such a promise tends to coerce employees in the
selection of a collective-bargaining representative. Unfair
labor practice charges had been filed against Respondent,
and Respondent could reasonably expect that objections
to the election might well be filed with the resultant pos-
sibility of a new election. Respondent therefore acted at
its risk when its supervisor and agent, Newby, made
promises of benefits designed to remedy existing com-
plaints before the outcome of the election was certain.
That risk was not well taken, and I conclude and find
that Respondent, by its supervisor and agent, Newby,
violated Section 8(a)(1) of the Act by promising employ-
ees benefits, in response to their previous complaints,
while an election proceeding was yet in progress.
18. In regard to Nadine Orr
The complaint alleges Respondent removed an unpop-
ular supervisor, Orr, as an adjustment of employee griev-
ances. There is no evidence Orr's departure was by way
of removal, or that her departure was caused by Re-
spondent in an effort to adjust employee grievances. This
complaint allegation will be dismissed.
19. Conduct of Director of Education and Training
Mary Ortman
Nurse Barbara Lee testified that she had a conversa-
tion about the Union with Ortman before the election
but after the election date was set. Lee related the con-
versation, in pertinent part, as follows:
She had brought that subject up [strikes], and that if
we did want a bargaining union, that it could possi-
bly mean strike. If we chose a union to represent us,
it could mean lowering of our wages from the point
of zero. I was argumentative with her at that point,
and that we would not go on strike. And as far as
starting wages from zero, I could not argue that,
and that the hospital could bring that up as an issue
in the bargaining session.
On cross-examination Lee explained:
I had made the statement we were not bargain-
ing for wages. It was . . . for better patient care.
And she [Ortman] made the statement that wages
would most definitely become an issue, and that
they could possibly even start at the zero rate if the
hospital were to make wages an issue during the
bargaining situation. And I realized that, too.
I realized it, too, because I had taken part in the
ONA involvement, and they explained the bargain-
MIDDLETOWN HOSPITAL ASSN. 563
ing position and what each side could take in bar-
gaining.
Although Lee's testimony is uncontroverted and she
seemed to be trying to testify accurately, I cannot be-
lieve that Ortman told her the selection of a union repre-
sentative could lower wages below zero or less than noth-
ing. Whatever the talismanic value of the word "zero,"
when uttered during a discussion of bargaining , I am per-
suaded that the most Ortman did was advance possibi i-,
ties that might occur during bargaining, and I consider it
so highly improbable as to be unbelievable that Ortman
said Respondent would propose -a "zero" wage, 'in other
words no pay at all, for employees as a condition of con-
tract. I therefore find Ortman did not, as the complaint
alleges, threaten the "loss of current benefits" or "that
bargaining would start at zero" if the employees selected
the ONA.
20. Statements of Nurse Manager Betty Phillips
In early March 1980 Phillips met with six nurses. She
advised them of the date of the election, and went on to
say if the Union got in things would not be as flexible.
After relating that her husband worked in a union shop,
where employees had to call in each day they were off
sick, she said that this could happen with a union. The
policy at Middletown Hospital requires a call-in every
day, except for extended periods in which case an em-
ployee may so advise in advance without further need
for daily call-ins. Phillips also mentioned employees
would probably have to punch a timeclock.
It is a close question, but I am persuaded Phillips'
statements were not unlawful . An employer does indeed
surrender some of its unfettered discretion with respect
to wages, hours, and working conditions when he is re-
quired by law to bargain thereon with a duly selected
collective-bargaining representative . With respect to the
sick day and timeclock comments, they amount to specu-
lation on what might possibly happen rather than state-
ments of Respondent's present intent to change existing
practice.
21. Statements of Clinical Coordinator Wilma
Popplewell54
In September or October 1979, during the ONA orga-
nizational campaign , Popplewell asked nurse Deborah
Gentry, "Do you think you need more money, is that
one of the problems?" When Gentry said that was prob-
ably the least of her concerns , Popplewell told her that if
employees would talk their problems over with their su-
pervisors most of them could be settled within the
unit.5 5
Popplewell's inquiry related to Gentry's reasons for
supporting the ONA and constituted coercive interroga-
tion into Gentry's union sympathies in violation of Sec-
tion 8(aXI) of the Act. I further find that Popplewell's
statements about employee problems amounted to a so-
54 Popplewell did not testify.
sa unit here apparently refers to the departmental unit within which
Popplewell and Gentry worked.
licitation of grievances and a promise to remedy them in
violation of Section 8(a)(1) of the Act.56'
In February 1980 Popplewell had a conversation with
Gentry and nurse Rhonda Cottingim. The following ac-
count is a fair composite of the complementary testimo-
ny of Gentry and Cottingim, as is that below.
Popplewell advised that she had heard of a nurse in a
hospital under a union contract that had been put on
probation for tardiness . She added that they should think
about it because there would be a possibility they would
have to punch timeclocks if they became subject to a
contract,S7
I do not agree with the General Counsel's allegation
that Popplewell threatened employees they would have
to punch a timeclock if the Union came in. She merely
reported what she had heard about the tardy nurse,
which report has not been shown to be false, and advised
of a possible requirement in a collective -bargaining
agreement.
Popplewell spoke to a group of nurses in late February
or early March 1980. Turning to Gentry, she said,
"Debbie, you know you're not going to get everything
you want through ONA." Gentry acknowledged that
she knew they would not get everything they asked for.
Popplewell continued that when negotiations started
they would start from scratch58 and there was a possibil-
ity the Hospital would not want to agree with every-
thing ONA asked for. Popplewell added that negotia-
tions could take months and months.
The thrust of Popplewell's remarks is not that employ-
ees would automatically lose benefits if they selected the
ONA to bargain for them. Reading the "scratch" com-
ment in the context of all Popplewell 's statements in this
conversation, which related to negotiations, I am per-
suaded that Popplewell clearly, transmitted the permissi-
ble opinion that the Hospital might not acquiesce to
ONA's bargaining demands, and bargaining would take
several months . Her, statements, in context, cannot rea-
sonably be interpreted as a threat of loss of benefits or a
threat to deliberately extend bargaining. I 'find no unfair
labor practice in these statements.59
22. ,Communications unlimited
On August 2, 1979, W. A. Mischley, Respondent's ex-
ecutive vice president, directed the following letter to all
employees:
56 This solicitation of the promise to remedy grievances by Popplewell
is not specifically alleged in the complaint , but is clearly related to the
subject matter of the complaint and was sufficiently litigated to warrant
finding a violation.
57 Gentry does not mention any talk of a contract , but does not deny
it. I credit Cottingim's version in regard to the timeclock (Tr. p 565) and
conclude that Gentry's contention that Popplewell said they would prob-
ably have to punch a timeclock if ONA got in is her understanding of
what Popplewell meant rather than what she said.
68 I seriously doubt that Popplewell would redundantly say, as Gentry
claims, that negotiations would start from scratch and zero, and I do not
believe Cottingim would have forgotten the use of the word zero if it
was used, in view of her clear recollection of the "from scratch" com-
ment.
59 See, e.g., Rapid MJk. Co., 239 NLRB 465, 471-472 (1978).
564 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
Recently we asked for comments , from employees
regarding the needs and progress of the Middle-
town hospital . You gave us many excellent ' sugges-
tions and we learned a great deal . Part of what we
learned was that better communications among all
the employees of the hospital-communications in
which we all speak out and we all listen were
needed.
We are going to, do something about meeting that
need.
We propose a new program called "Communica-
tions Unlimited ... for a better hospital." To be
frank, everyone of you carries a wealth of ideas in
your head ... ideas that will lead to a better hospi-
tal and better patient care . The goal of this new
program is to regularly and routinely ask you for
those ideas and discuss your suggestions with you.
The first part of the program will be called
"Speak Out." The plan will provide "Speak Out"
boxes into which you can drop any suggestions,
comments, or questions you might have . You will
receive an answer to every item you send us and
you will receive it promptly . The details of that
plan are explained on the attached sheet.
As a second part of the program , we are going to
conduct a series of group meetings that will include
20 percent of the employees of the Hospital each
year. By lot, we will draw the names of about 18
employees each month and ask them to attend it
one-hour meeting with three members of the top
management of the Hospital for a free exchange of
ideas and thoughts . These will be called "One-in-
five" meetings as one in every five employees will
be in one of the meetings some time during the
year.
Finally, we will be periodically sending you
"Idea-Grams." Some of the best questions,
thoughts, and ideas from "Speak Out" and the
"one-in-Five" meetings will be, printed along with
the answers. Naturally , the ones chosen to be pub-
lished will be the ones of most interest to all of us.
With the "Communications Unlimited" program
I expect that we will have one of the best approach-
es to communications . We'll all be trading and com-
paring the best ideas we can come up with . The net
results will be better health care for our patients-
and this is foremost in all our minds-as well as a
better hospital team because we will have a com-
plete understanding of what each other is thinking
and why.
I sincerely hope you will participate and cooper-
ate with "Communications Unlimited ... for a
better 'hospital." Your thoughts and suggestions
will, as always, be most welcome.
An attachment to the letter reads:
tal's progress . Any issue can and will be addressed
except those relating to individual personalities or
people's private life.
Blanks will be made readily available throughout
the Hospital for employees to use . In addition to
your comments, the forms ask for your , name, ad-
dress, and phone number . To receive an answer you
must sign your name . Confidences will be kept
wherever possible . When your suggestions or con-
structive criticism necessitates involvement of other
members of the Hospital Team, they will be con-
sulted to help answer, resolve , or implement your
suggestion . The blanks should be dropped into idea
boxes ,placed throughout the Hospital or sent direct-
ly to Don Barker in Personnel . To insure confiden-
tiality, please write "Speak Out" on the envelope.
All questions will be answered personally and
sent to your home unless otherwise requested. If for
one reason or another your questions cannot receive
a written response you will be called . Ideas will be
collected daily and answered within five working
days.
"ONE-IN-FIVE" PROGRAM
The purpose of the "One-in-Five" meetings is to
allow employees the opportunity to openly discuss
their ideas with members of top management. We
believe that such an exchange will not only improve
communications , but also bring about-suggestions
that will help solve problems in the organization
These suggestions will lead to a better hospital and
better patient care.
After this initial meeting, the list of invited em-
ployees will be posted 10 days to two weeks prior
to the session. This allows co-workers to "pass
along" their suggestions and thoughts to those at-
tending that month's session.
These will be luncheon meetings held in the
Board Room on B Level in the new building. The
first meeting is scheduled for noon on Friday,
August 10th.
Minutes of the meeting , complete with answers,
will be posted within 72 hours. The minutes will
only include topics of discussion, not who asked the
question.
"One-in-Five" meetings Were subsequently held on
August 10, September 14, October 30, November 23, and
December 18, 1979; and January 23, February 27, and
March 28, 1980.60 They followed the format set out in
Mischley's letter and attachment thereto. An examination
of meeting minutes reveal that the questions asked posed
employee concerns on a broad range of subjects. To the
extent it can fairly be said that everything connected
with the operation of a hospital is somehow related to
"SPEAK OUT" PROGRAM
This is the written portion of the "Communica-
tions Unlimited" program . You are encouraged to
"speak out" in writing with suggestions and/or
problems which, in your mind, will help the Hospi-
60 Mischley attended ,the August 10, September 4, October 30, and
November 23, 1979 meetings and the March 28, 1980 meeting. Wiley at-
tended the September 14, November 23, and December 18 , 1979 meetings
as well as the January 23, February 27, and March 28, 1980 meetings.
Barker was present at the September 14, October 30, November 23, and
December 18, 1979 meetings, and all the 1980 meetings.
MIDDLETOWN HOSPITAL ASSN. , 565
patient care, every question could be construed as a pa-
tient care question . By the same token it might also be
fairly argued that a working condition is a broad enough
subject to bring almost every employee concern under
its umbrella. The minutes reflect, however, that many
questions were advanced that related directly to wages,
hours, and working conditions. Among them were in-
quiries about staffing, employee insurance coverage and
other benefits, work standards, the computation of cost-
of-living wage increases , the absence of a merit pay
system, call pay, shift `differential pay, seniority and pro-
motion policy, break time, every other weekend off, the
beginning, wage scale, job posting, timing of payday, se-
niority for, part-time employees, leave without pay,
Sunday premium pay, sick leave, employee appraisals,
and tuition reimbursement. Although many of the ques-
tions were of an information seeking nature, many others
expressed employee complaints and requests for remedy
thereof.
That Respondent used the "One-in-Five," as well as
the "Speak-Out" program, as a tool for soliciting and
remedying employee grievances is shown by the minutes
of the December 18, 1979 meeting reflecting the follow-
ing response by Personnel Director Barker to an employ-
ee statement that "One-in-Five" meetings would be
useful and productive if they accomplished something:
Mr. Barker responded to this by citing some of
the programs and projects that have resulted, either
partially or completely, from the "One-in-Five" and
"Speak-Out" programs. Three highlights are the
part-time benefit program (to be implemented in
1980), envelopes for payroll checks for all employ-
ees (late January or early February 1980) and up-
grading of the C.O.L. program (January 1980). A
comprehensive list of what has been done as a result
of the "One-in-Five" and "Speak Out" programs
will be published in January 1980.61
Barker's response implies that changes in addition to
those specifically cited have been made. Further confir-
mation that the Respondent used the new program as an
apparatus to solicit and remedy employee grievances is
furnished by: (1) vice president Wiley's letter to all em-
ployees, dated February 5, 1980;
The cost of living check you received today is
based on the new cost of living base rate. It is a
direct response by the Hospital to meet the needs of
our employees. Through "One-in-five" meetings
and the "Speak Out" program, we received employ-
ee concerns about updating our existing cost of
living system . To improve your ability to deal with
the problems of inflation, the Board of Trustees and
Hospital Administration responded by adjusting the
cost of living base rate to present (1980) wage rates.
The result of this boost should be readily apparent
in today's check.
This improved benefit- is just one .more example
of what can be, accomplished when genuine con-
cerns are discussed openly and acted upon together.
(2) management's reiterated promise of a part-time bene-
fit program at the January 23 meeting ; and (3) the March
25, 1980 announcement of a "Qualified Part-Time Em-
ployee Benefit Plan" setting forth 17 specific benefits.
"Speak Out" also resulted in the remedy of other em-
ployee complaints, most notably the grant of seniority to
part-time employees in May 1980 in response to a sug-
gestion made by Teresa McGuire.
The Respondent was aware of the ONA campaign as
early as March 1979. Barker, who became manager of
personnel" on August 1, 1979, testified that the Re-
spondent was concerned about the ONA campaign, un-
dertook to find out 'why the nurses wanted a union, was
concerned about this as well as other problems caused by
the opening of a new building, and instituted its "Speak
Out" and "One in Five" programs as a means of ascer-
taining what all of the problems were.
The August 2, 1979 announcement of the "Communi-
cations Unlimited" program and its constituent parts may
not be found to be an unfair labor practice because it
issued more than 6 months prior to the filing of,the first
charge in this case, but this poses no bar to a consider-
ation of whether Respondent unlawfully solicited, prom-
ised to remedy, and did remedy employee -grievances
after August 7, 1979. Moreover, the August 2 letter and
other evidence originating prior to August 7, 1979, may
be considered to the extent they assist in understanding
whether the post-August 7 conduct of Respondent vio-
lated Section 8(a)(1) of the Act ,63 '
Respondent contends that the "Speak Out" and "One-
in-Five" programs are merely continuations' of a 'long-
standing practice of holding regular monthly or bimonth-
ly departmental meetings when employee suggestions are
discussed, together with annual hospitalwide meetings
when employee complaints were solicited and sometimes
later remedied. Respondent also points to an existing
"problem procedure" setting forth, in effect, a grievance
procedure.
The "problem procedure" continues in effect, and de-
partmental meetings, continue to be held. Therefore, nei-
ther was replaced by the new program.
With respect to the annual meetings, vice president
Wiley asserts they have been held each spring since 1967
for the purposes of advising employees of changes in
wages and benefits, and soliciting their suggestions and
complaints . He also states the timing of those meetings
was caused by the fact the Hospital makes its wage and
benefit changes about the beginning of the year. In sup-
port of this testimony Respondent proffered documenta-
ry evidence that such a meting was held in 1975 when
numerous complaints, similar to those in the "One-in-
Five" meetings, were voiced by employees, and also
proffered evidence that Respondent had remedied such
complaints in past years. Apart from this documented
1975 meeting, Wiley's testimony regarding other
61 Emphasis added.
az The title was later changed to director of personnel.
63 Machinists Local 1424, supra.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"annual" meetings is doubtful . He concedes there were
some years since 1967 when no meetings were conduct-
ed, specifically 1979, but is most unconvincing when he
testifies there were more meetings conducted in the years
between 1967 and the present than when not.64
Director of Nursing Anderson remembers only a meet-
ing in 1978. She is unable to recall any other meetings.6 a
Barker only knows about a 1978 meeting . The evidence
of Respondent, at best, only shows meetings in 1967,
1975, and 1979, considerably short of an established pat-
tern of regular annual meetings.
The evidence compels a fording that Respondent had
not established practice comparable to "One-in-Five"
and "Speak Out," and that Mischley's letter of August 2,
1979 was eminently correct in characterizing "Communi-
cations Unlimited" as a new program.
It is well established that when an employer institutes
a new practice of soliciting employee grievances or com-
84 The following portion of his testimony illustrates the uncertainty of
his memory:
A. I'm quite certain there were some years when meetings were
not conducted.
Q. Do you recall now which years there were not such meetings?
A. No, sir.
Q. Isn't it a fact, Mr. Wylie , that there were less of these meetings
than there were of these meetings? In actuality, there were more
years since 1967 when these meetings were not held than there were
years when they were held? -
A. No.
Q. Well, what is the basis for you saying that?
A. My knowledge of the meetings that were conducted.
Q. Can you recant [sic] for us which years they were definitely
conducted?
A. Not without records to authenticate that, no.
Q. Which records would you use to authenticate that?
A. I don't have any to authenticate that . They're the records that
we've already indicated have been destroyed in the normal course of
business.
Q. Then you can't say for a certainty that these meetings were
conducted in any year other than 1967 and 1975, isn't that right?
A. I can say for certain that they were, yes. You can disagree, but
I can-
Q. Which ones can you say for a certainty there were such meet-
ings?
A. I didn 't say I could specifically in answer to your question. I
said I can say there were more conducted than not in those years.
JUDGE WoLFE : The question is, though , can you say what years at
least some of them were conducted , other than '67 and '65?
MR. LANG: '75, Your Honor.
JUDGE WOLFE : '75-I'm very sorry.
THE WrrNrss : I will not attempt to do that with the lack of
records to substantiate that. No, sir.
THE WrrstESS: You don't remember whether or not there was one
in '78?
THE WrrNESS : Yes, I do happen to know there was one in 1978.
THE WrrNESS: Well, proceed.
BY Mx. LANG : (Resuming)
Q. Was there one in 1979?
A. No.
Q. What about 1977?
A. -1 cannot recall any further . In answer to '78, I know specifical-
ly there were meetings conducted in '78, and I will not try to recall
back further than that.
05 She testified:
Q. Outside of that meeting [1978] , there have been none of those
meetings between 1975 and 1979 . Isn't that right?
A. I can't testify with any degree of certainty to that.
Q. You can't recall any meetings . Is that right?
A. Not that I could put any exact time on them or topics discussed
or anything like that. No.
Q. Can you recall any meetings?
A. I can't say that I recall there were or there were not.
plaints during a union organizational campaign "there is
a compelling inference that he is implicitly promising to
correct those inequities he discovers as a result of his in-
quiries and likewise urging on his employees that the
combined program of inquiry and correction will make
union representation unnecessary."66 Respondent has not
rebutted that evidence, and Respondent's efforts to do so
persuades me that its proffered defense is pretextual. This
raises yet another inference , one of unlawful motive,67
which draws additional strength from the evidence of
Respondent's knowledge and hostility toward union ac-
tivities demonstrated by its other unfair labor practices
and Barker's admission that ONA activity was a precipi-
tating cause of the new program . I therefore conclude
and ford that Respondent's implementation of the "One-
in-Five" and "Speak-Out" programs commencing August
10, 1979, and its conduct, by its supervisors and agents
Mischley, Wiley, and Barker, of soliciting, promising to
remedy, and remedying employees ' complaints and
grievances was designed to discourage union activity
among its employees , and violated Section 8(a)(1) of the
Act.68 Although the use of suggestion boxes in the
"Speak Out" program is found to be unlawful as a con-
stituent part of that program, I do not find that the mere
institution of suggestion boxes is unlawful because the
record indicates that such boxes may well have been in
place as early as 1978.
23. Announcement of an adjusted cost-of-living base
By letter of December 4, 1979, Mishley advised em-
ployees that in response to their concerns the base on
which their cost-of-living checks are computed would be
increased effective "the first cost of living checks distrib-
uted in 1980." This adjustment had been approved by
Respondent's Board of Trustees on November 29, 1979.
Quarterly cost-of-living checks had been issued since
1974, and the base rate on which they had been comput-
ed remained unchanged from 1974 until Mischley's 1979
announcement. As earlier noted, Barker advised employ-
ees at the December 18, 1979 "One-in-Five" meeting that
the "upgrading" of the cost-of-living program was an
item that had resulted, either partially or completely,
from the "One-in-Five" and "Speak Out" programs.
Vice President Wiley announced in his February 5, 1980
letter issued on that subject that the new cost-of-living
base rate was a response to employee needs, and went on
to note, "Through `One-in-Five' meetings and the `Speak
Out' program, we received employee concerns about up-
dating our existing cost of living system."
Wiley avers that employees had complained as early as
1975 or 1976 about Respondent's failure to update the
66 Reliance Electric Co., 191 NLRB 44, 46 (1971).
67 Shattuck Denn Mining Corp. Y. NLRB, 362 F.2d 466, 470 (9th Cir.
1966).
68 That the new program applied to all employees provides no de-
fense. I know of no authority for the proposition that an employer is ex-
cused for his unlawful acts against union activists if he' extends his action
to other employees . Nor do I find it material that there was no petition
for election on file between November 19 and December 12 that may
have created some doubt that union activity continued during this hiatus.
All meetings but one occurred during the pendency of a question of rep-
resentation.
MIDDLETOWN HOSPITAL ASSN. 567
cost-of-living base, and the cost-of-living checks were
not keeping up with the consumer price index.
After several years of unremedied complaints about
the cost-of-living base, we here have-an announcement of
an increase in that base hard on the heels of complaints
solicited through a program that I have found was ille-
gally designed to solicit and promise remedies for em-
ployee concerns. Barker's comments on December 18 at-
tribute part of the cause for the increase to the new pro-
grams, and Wiley's February 5 letter implies the increase
was entirely due to employee concerns expressed
through "One-in-Five" and "Speak Out "89
In context it is reasonable to conclude, and I do con-
clude, that Wiley's letter of February 5, 1980, was rea-
sonably calculated and carefully constructed to urge on
Respondent's employees that its largess was preferable to
union organization, and the implied promises made via its
"Communications Unlimited" program would be kept. I
conclude and find that Wiley's announcement violated
Section 8(a)(1) of the Act.
24. Part-time employee benefits
Benefits have been sought by part-time employees
since at least 1975. According to Wiley, Respondent
started working on a benefit package as early as 1976
and made its decision to develop such a program in the
spring of 1979. When questioned about why this was not
announced in the December 4, 1979 letter announcing a
general wage increase as well as an increase in cost-of-
living base, Wiley avoided answering the question by cir-
cumlocution,70 but later said an announcement of the
complete program could have been made in February
1980 but was delayed, "Due to the upcoming election
and an effort to not institute a benefit at that time, that
could become an allegation of an unfair labor practice
. . ." This reason did not constrain him from announc-
ing the cost-of-living adjustment in February 1980.
At the November 23, 1979 "One-in-Five" meeting at
least three questions were asked with respect to part-time
employee benefits. The response, apparently by Misch-
ley, was that Respondent was thinking of considering a
complete part-time employee benefit package on a pro-
rated basis. This- was accompanied by a brief explanation
of some aspects of that projected plan.
Respondent's minutes of the December 18, 1979 meet-
ing reflect that Barker stated the part-time, benefit pro-
gram to be implemented in 1980 resulted partially or
completely from the "One-in-Five" and "Speak Out"
programs.
Respondent again told employees at the January 23,
1980 "One-in-Five" meeting that part-time benefits
would be implemented in 1980.
Nurse Cottingim credibly testified that Barker told em-
ployees, during a meeting with them about a week
before the election that Respondent had been working
on part-time benefits, was not at liberty to give them to
69 The cost-of-living base rate was questioned at the very first "One-
m-Five" meeting on August 10, 1979.
7° (Tr. pp. 1716-1717.) I conclude the question related to the complet-
ed program.
employees at that time, or tell employees about them be-
cause of the upcoming election.
The part-time benefits were announced on March 25,
1980.
Respondent's efforts to develop a part-time benefit
package commenced before union organization began,
but it is well settled that an employer must continue
during a union campaign as it would have in the absence
of union activity or pending election.,71 Wiley testifies
and Barker told employees that the benefits were de-
layed because of the upcoming election. I fmd that Bark-
er's statement violated Section-8(a)(1) of the Act. And I
further fmd that the deliberately delayed announcement
made on March 25, almost immediately after the ONA
had failed to get a majority' vote in the election and
while,a question of representation was pending, was rea-
sonably calculated to convey to employees the message
that Respondent would treat them better without the
Union than with it, and was giving them a quick reward
for voting against the ONA. This announcement there-
fore also violated Section 8(a)(1) of the Act.
Respondent's argument that it was trying to avoid an
unfair labor practice charge by delaying the announce-
ment has no weight for the simple reason the record
does not show that employees were ever so advised. All
they were told was that the delay was caused by the
election. See Progressive Supermarkets, 259 NLRB 512
(1981).
25. The "low workload" rule
Low workload days are those that nurses take off
without pay when there is a low patient census. Wiley
testified that he instructed both the nursing service and
nursing specialties divisions to discontinue the practice in
the fall of 1978. This testimony is doubtful because nurse
Linda Spicer credibly testified that she was last asked to
take such a day off in about December 1979, and that
Nurse Manager Phillips announced the end of low work-
load days' in January 1980 at an interdepartmental meet-
ing. I consider, it highly unlikely that the, policy would
have continued for 13 months if Wiley had decreed its
end. Moreover, it is obvious from a question posed at the
January 23, 1980 "One-in-Five meeting concerning why
Respondent was hiring part-time nurses in the presence
of low workload days, which was answered with the as-
sertion that low workload days no longer existed, that
the employees had not then been advised this policy was
no longer in force. I conclude' and fmd discontinuance of
the low workload policy was not announced to employ-
ees and was not in fact discontinued until ' January 1980,
in the midst of an election contest. Accordingly, , I find
the discontinuance and, its announcement were proffered
to induce, employees to refrain from supporting the
Union, and violated Section 8(a)(1) of the Act.
26. Every other weekend off policy
Mehl, director of nursing specialties, instructed nurse
managers in January 1978 to place employees in their de-
71 See, e.g., McCormick Longmeadow Stone Co., 158 NLRB 1237, 1242
(1966); and'Performance Measurements Co., 148 NLRB 1657 (1964).
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partments on an every other weekend off schedule as
soon as staffing made it possible . It was left up to the in-
dividual managers to decide when to implement the pro-
gram. It appears that all but main 1 and the intensive
care and coronary care units (ICU/CCU) went on this
schedule prior to the statutory limitations date . There is
no showing these actions were caused or accelerated by
union activity.
Nurse Cleo Garvin told Fuller , nurse manager on main
1, as early as the spring of 1979 that she would like to
see if it was possible for main 1 to have every other
weekend off. Garvin does not recall Fuller's response. I
am persuaded that had Fuller rebuffed her Garvin would
have remembered it. In July 1979 , Fuller told Garvin
that if Garvin would talk to the nurses about their pref-
erence for every other weekend off, and a majority was
in favor, she would try and see what she could do.
Garvin avers that Fuller also talked to other nurses
about this. Garvin checked with the nurses, found there
was a majority in favor, and so reported to Fuller who
repeated that she would see what she could, do. Shortly
thereafter,72 Fuller prepared schedules, gave them to the
employees, and told them to examine them.
The every other weekend off schedule was implement-
ed by the first week of October 1979. Garvin testified
that an increase in staffing of the unit commenced in
September or October.
ICU/CCU went on the same schedule in January
1980. Betty Phillips, nurse manager of the unit, had earli-
er told employees they could not go on that schedule be-
cause there was insufficient staffing. Rhonda Cottingim
credibly testified that Phillips said the new scheduling
was the result of suggestions made. There had been such
suggestions placed in the suggestion box, a part of the
"Speak Out" program, prior to this action. I conclude
these were the suggestions referred to by Phillips.
Phillips explains that this schedule change was delayed
because of the difficulty in getting "quite a few" part-
time nurses of sufficient competence to staff ICU/CCU
on weekends. She does not say who, or how many, such
part-time nurses were hired to take on the weekend
work. The summary of payroll records stipulated into
evidence reflects no increase in total nurses from the
payroll period ending November 24, 1979, through the
pay period ending January 5, 1980, but does increase by
seven nurses during its payroll, ending January 19,
1980.73 The record does not show which, if any, of
these seven were assigned to ICU/CCU. That being the
case, Respondent has not met its burden of coming for-
ward with persuasive evidence supporting Phillips' vague
reference to "quite a few" part -time nurses hired to staff
the unit on weekends. Moreover, Gwendolyn Cluverius
testified there were more part-time nurses in ICU/CCU
prior to the change in policy than after, and Rhonda
Cottingim avers she can think of no part-time nurses
hired in ICU/CCU in 1979.
72 Probably a week or two later, considering it would take some time
to prepare the schedules.
73 The bargaining unit involved does not exclude part time nurses, and
I note that part-time nurse Phyllis Duff is included in the stipulated pay-
roll.
Conclusions
Implementation of the every other weekend off policy
continued department by department in 1978 and 1979,
with main 1 the last unit so affected in 1979. The appli-
cation of the policy to main 1 was accompanied by in-
creased staffing, which has not been shown to be unlaw-
fully motivated, and the sequence of events leading to
the last September or early October 1979 implementation
on main 1 appears to have been an orderly progression
pursuant to the policy announced in 1978 and gradually
implemented in other areas of the hospital. The record
does not support a finding that Respondent proceeded in
main 1 with respect to this policy in a manner different
than it would have in the absence of a union, but, rather,
persuades me its conduct was no different than it would
have been absent union activity.
ICU/CCU is a different matter. Betty Phillips' earlier
stance there could be no every other weekend off prac-
tice in that area because of the insufficient staffing sud-
denly changed, without any apparent increase in staffing,
as a result of suggestions via the "Communications Un-
limited" program . I have found the communications pro-
gram was unlawfully conducted as a tool for soliciting,
promising to remedy, and remedying employee com-
plaints and grievances. It is further found that the an-
nouncement and implementation of every other weekend
off in ICU/CCU has been shown by a preponderance of
the substantial evidence in the record to be a benefit
granted during an election campaign with no adequate
showing of business justification therefor. Accordingly, I
find the announcement and implementation violated Sec-
tion 8(a)(1) of the Act.
V. THE APPROPRIATE BARGAINING UNIT
Respondent challenges the appropriateness of the col-
lective-bargaining unit alleged in the complaint, which
reads as follows:
All registered nurses employed by the [Respondent]
at its Middletown, Ohio facility, including staff
nurses, infection control nurses, nurse instructors,
and utilization review nurses, but excluding all
other employees, all office clerical employees, and
all guards and supervisors as defined in the Act.
This unit74 was found appropriate in the Regional Di-
rector's Decision and Direction of Election. The Board
by denying Respondent's request for review adopted the
Regional Director's finding. In, support of its position
before me, Respondent proffered, as an offer of proof, its
request for review that the Board has denied and Re-
spondent relies on the argument and evidence therein.
The issue has been litigated in the representation case on
the same grounds advanced before me, and Respondent
raises nothing new that either was not or could not have
been litigated in the representation case. Accordingly,
74 The only difference is that the Regional Director used the word
Employer rather than Respondent , and the use of the latter term in the
complaint is an insubstantial variation requiring no further discussion.
NIIDDLETOWN HOSPITAL ASSN.
Respondent is not now entitled to relitigate the unit.75
Moreover, I decline the Union's invitation in its posttrial
brief to make findings on unit placement issues not
before me, but in the record before the Board in Case 9-
RC--13186. I must presume the Board considered what
was in its record before it, and I will not presume to
second guess the Board . The parties have stipulated the
identity of employees in the unit before me, and that is
sufficient for unit placement purposes . I therefore find
the unit alleged in the complaint , is appropriate for pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
VI. THE OBJECTION 'S TO ELECTION
The election conducted on March 20, 1980, among the
nurses described in the appropriate bargaining set forth
above to ascertain whether they - wanted to be represent-
ed by ONA, resulted in a tally of 65 votes for, and 121
votes against ONA, with 1 void and 7 challenged ballots.
On March 27, 1980, ONA filed objections to conduct af-
fecting results of the election . The objections are as fol-
lows:
1. The Employer promulgated and enforced an
unlawful - no-solicitation/no -distribution rule
throughout the critical period prior to the election.
2. The Employer enforced its unlawful no-
solicitation/no-distribution rule in the selective and
disparate manner, thereby limiting employees in a
dissemination of information favorable to the Peti-
tioner.
3. The Employer, through its "One-in-Five Pro-
gram" and its "Speak Out Program," solicited em=
ployee grievances with the promise or the implied
promise to remedy such grievances in order to per-
suade employees to abandon the Petitioner.
4. The Employer remedied grievances, granted
benefits and improved the terms and conditions of
employees by, among other things, (a) granting a
cost-of-living increase , (b) increasing staffing in a
manner designed to demonstrate that nurses' griev-
ances could be remedied by the Employer without
the Petitioner, and (c) replacing unpopular manage-
ment officials with popular officials.
5. ' The Employer interrogated employees con-
cerning their own and other employees ' support for
the Petitioner.
6. The Employer threatened or impliedly threat-
ened employees with reudiation because of their
support of the petitioner.
7. The Employer encouraged employees to form
an independent union in order to dissuade employ-
ees from supporting the Petitioner.
8. The Employer maintained and enforced a rule
prohibiting employees from wearing buttons in sup-
port of the Petitioner while permitting employees to
wear buttons and insignia in support of other orga-
nizations or causes.
7s See Pittsburgh Plate Glass Y. NLRB, 313 U.S. 146, 162 (1941);
Board's Rules , Secs. 102.67(1) and 102.69(c ); and Frederick Memorial Hos-
pital, 254 NLRB 36 (1981).
569
9. The Employer, throughout the 2 to 3-week
period immediately preceding the election , conduct-
ed individual meetings with employees , therein co-
ercing and restraining such employees in the exer-
cise of their free choice in the election.
10, The Employer, through its literature and oral
statements, created the impression that a strike was
inevitable if the Petitioner were selected as the em-
ployees' bargaining representative.
11. The Employer, through its literature and oral
statements, indicated that selection of the Petitioner
as the employees' bargaining representative was
futile because the Employer would not bargain in
good faith with the Petitioner.
12. The Employer made substantial and material
misrepresentations concerning , the Petitioner at such
a time as to preclude a response by the Petitioner.
13. The Employer assisted and endorsed the ac-
tivities of persons opposed to the Petitioner by al-
lowing such persons to distribute literature on the
Employer's property.
14. The Employer used Board processes and de-
cisions in a misleading fashion in an attempt to justi-
fy the Employer's unlawful activities.
15. By these and other acts, the Employer inter-
ferred with the employees ' right to a free and un-
trammelled choice in selecting a collective -bargain-
ing representative.
I have found matters covered by Objections 1 through
8, and 10 and 11 to be unfair labor practices occurring
during the critical period between the petition and the
election, Ideal Electric Co., 134 NLRB 1275 (1961);
Goodyear Tire & Rubber Co., 138 NLRB 453 (1962). It is
well settled that unfair labor practices constitute objec-
tionable preelection conduct . 76 'Accordingly, the objec-
tions should be sustained and the election set aside.
VII. THE UNION'S MAJORITY STATUS
A. Unit Members
At the hearing the parties stipulated to a payroll sum-
mary that was entered into evidence reflecting the
number of employees working during each week for the
payroll periods ending July 7, 1979, through March 29,
1980, the parties agreed that of the 229 employees whose
names appear on this exhibit, only three might be in
issue. The status of Suzannah Power and Jeri Taylor was
referred to me for determination without further evi-
dence thereon being proffered or adduced. On the basis
of the record before me I have no reason to exclude
these two individuals from the unit . I must assume that
the inclusion of them in the compilation is some prima
facie evidence, however weak, that they are indeed in
the unit and I will consider them so in making compila-
tion. The third name was Pat Aldridge.
With respect to Aldridge, Respondent argues in his
posttrial brief that she is a' part-time clinical coordinator
and was in that position at the time she signed an author-
76 Dal-Tex Optical Co., 137 NLRB 1782 , 1786 (1962).
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ization card in April 1979. The General Counsel merely
states in his brief that "it appears , that Aldridge was a
part-time clinical coordinator at the time she signed her
authorization card ." The Charging Party concedes in its
brief that Aldridge spends the overwhelming majority of
her worktime as a night-shift clinical coordinator and
therefore is a supervisor under Section 2(11) of the Act.
Aldridge herself testified on cross-examination that in the
spring of 1979 she was a part-time clinical coordinator.
She further testified , "as far as responsibility of taking
care of patients go ... the buck stops here," and that
she has the same number of people working directly
under her direction when she works as the full-time co-
ordinator. She is paid a premium for work done as clini-
cal coordinator and since April 1979 has received less
than 'the premium rate some five times at most when she
was functioning in a position of less than that of a clini-
cal coordinator . I am persuaded that Aldridge is indeed a
part-time critical coordinator, who works in the absence
of another coordinator, and that she falls within the stip-
ulation of the parties on the supervisory status of clinical
coordinators. Therefore, I will exclude her from the unit.
It follows that the authorization card she signed may not
be used in computing the Union 's majority status. I find
it unnecessary to pass on unit placement of Barbara
Wright because her exclusion would not affect the
Union's majority status."
B. Authorization Cards
A total of 121 signed ONA authorization cards were
received in evidence. The cards contain clear and unam-
biguous language indicating that the signers authorized
the ONA to represent them for purposes of collective
bargaining.78
I rejected authorization cards purportedly signed by
Belinda Reed on August 17, 1979; by Kathy McGourty
on June 28, 1979; and by Maxine Weber on August 22,
1979. The General Counsel advised that all three had
failed to appear in response to subpoena , and requested
me to compare the signatures on the three cards with
those on other documents proffered . I declined to do so.
On reconsideration of this issue in the light of Ken's
IGA,79 which seems to imply that an administrative law
judge must compare signatures for card authentication
purposes, I reaffirm myearlier ruling for the following
reasons: (1) there was no showing of chain of possession
or other-proper foundation laid for the proffer of the
cards in evidence, and (2) the General Counsel made no
showing of any effort other than the mailing of the three
subpoenae , all of which were returned to him 12 days or
more before trial, to secure the attendance of the three
card signers or testimonial corroboration of the cards by
others, except fora denied request that I permit fellow
employees to compare the signatures. In any event, these
cards are not critical to the Union's majority status.
77 Price 's Pic-Pac Supermarkets, 256 NLRB 742 in. 1 (1981).
78 The printed card reads:
I hereby designate the Ohio Nurses Association to act as my ex-
clusive representative for purposes of negotiating terms and condi-
tions of employment.
7a Ken 's IGA, 259 NLRB 305 fn. 2 (1981).
Respondent challenges the validity of the authorization
cards on several grounds.
1. A primary contention is that the cards are invalid
because ONA represented to nurses that it would not
seek to represent them unless 80 percent of them signed
cards, joined ONA, and paid dues . It is true that many
nurses were told these things . Respondent argues at
length that because ONA did not secure 80 percent of
the nurses' signatures on authorization a condition prece-
dent has not been satisfied and ONA has no right to be
the nurses' representative on the basis of the cards. This
is a novel argument, but it is not the law . The appropri-
ate standards applicable to authorization cards have been
set forth by the Board as follows:80
In N.L.R.B. v. Gissel Packing Co., Ina, 395 U.S.
575 (1969), the Supreme Court approved Board law
on determining the validity or invalidity of authori-
zation cards, as set forth in Cumberland Shoe Corpo-
ration, 144 NLRB 1268 (1963), enfd. 351 F.2d 917
(6th Cir. 1975), and reaffirmed in Levi Strauss & Co.,
172 NLRB 732 (1968). The Court described Board
law in the following terms (395 U.S. at 584):
Under the Cumberland Shoe doctrine, if the card
itself is unambiguous (i.e., states on its face that
the signer authorizes the Union to represent the
employee for collective bargaining purposes and
not to seek an election), it will be counted unless
it is proved that the employee was told that the
card was to be used solely for the purpose of ob-
taining an election.
With respect to employees who sign cards upon al-
leged misrepresentations as to their purpose, the
Court said, "[E]mployees should be bound by the
clear language of what they sign unless that lan-
guage is deliberately and clearly canceled, by a
union adherent with words calculated to direct the
signer to disregard and forget the language above
his signature." (395 U.S. at 606.) The Court cau-
tioned the Board not to apply the Cumberland Shoe
rule mechanically, and quoted with approval the
Board's language in Levi Strauss, supra , that "It is
not the use or nonuse of certain key or `magic'
words that is controlling, but whether or not the to-
tality of circumstances surrounding the card solici-
tation is such as to add up to an assurance to the
card signer that his card will be used for no purpose
other than to help get an election ." (395 U.S. at fn.
27.)
In Cumberland Shoe Corp.,81 cards were solicited with
the representation that (depending on the solicitor) 50,
80, or 90 percent of the employees must sign cards to
secure an , election. In Dresser Industries,8a an employee
solicitor advised employees "60% or better" would have
to sign cards to get the Union in. In both cases the cards
80 Keystone Pretzel Bakery, 242 NLRB 492, 493 (1979).
81 144 NLRB 1268, 1278 fn. 10 (1963).
as 248 NLRB 33, 36 fn. 18 (1980).
MIDDLETOWN HOSPITAL ASSN.
were held to be valid, without any reliance on whether
or not the specific percentage was reached. Precedent is
thus against Respondent 's argument on 80 percent state-
ments, and a requirement, it indeed exists, that an em-
ployee join and pay dues before receiving representation
certainly is not an inducement to secure the card. I con-
clude and fmd that the above statements complained of
by Respondent neither cancel nor diminish the unambig-
uous language printed on the cards considered herein.
2. Respondent contends'that 13 cards must be found
invalid under SavairBS because the signers were induced
into signing cards by an offer of half-price ONA dues for
the first year of membership. The Supreme Court in
Savair held that a union's offer to waive initiation- fees
for all employees who signed union authorization cards
before a certification election interfered with the employ-
ees' right to refrain from union activities, did not com-
port with fair and free choice of bargaining representa-
tive, and was ground for denying enforcement of a bar-
gaining order, but the Court also pointed out that the
Union could have legitimately waived initiation fees for
all employees who join after the election as well as those
who signed before.
ONA has an established policy of requiring new nurs-
ing graduates who apply for membership within 6
months of their graduation to pay only one-half, of 'the
annual membership fee, for the first year. When its solici-
tors so advised recent graduates in the unit , they were
not offering anything the nurses could not obtain without
signing an authorization for ONA to represent them in
collective bargaining , nor is there any persuasive show-
ing this offer was contingent on anything other than the
expiration of the 6-month postgraduate period. The noti-
fication of this benefit, which recent graduates already
were aware of from information provided them in nurs-
ing school, does not run afoul of Savair and does not in-
validate any otherwise valid authorization cards secured
by ONA.
3. In addition to the foregoing broad attacks on groups
of cards, Respondent objects to individual cards on vari-
ous other, grounds. I have considered the testimony on
these cards taking note of the, Supreme Court's observa-
tion that "employees are more likely than not, many
months after a card drive and in response to questions by
company ' counsel, to give testimony damaging' to the
Union, particularly where company officials have [as
here] previously threatened reprisals for union activity in
violation of § 8(a)(1),"84 and the Board's recognition
that answers to leading questions on cross-examination
must be viewed with caution.85
Margaret Guido testified she was told by the card so-
licitor that "they were obtaining signatures verifying in-
terest in obtaining legal professional counseling for the
nursing." She is unsure whether or not she read the card.
1. find that she did because she filled it out and could
hardly have missed the brief message on it. She was not
directed to disregard the language on the card. The com-
ment made to her was on its face not a promise of free
83 NLRB, v. Savair Mfg. Co., 414 U.S . 270 (1973).
s4 NLRB v. Gissel Packing Co., supra at 608.
ss American Cable Systems, 161 NLRB 332, 333-334 (1966).
571
legal representation as Respondent urges nor was it a
statement of the sole purpose of the card . Guido's card is
valid.
Respondent contests the cards of Denise Goodlet,
Judith Ann Wolfe, Pam Wilson, Carolyn Dearth, Betty
Schultz, and Nancy Voix Wilson on the ground they were
told "words to the effect" that their card would only be
used to obtain an election , and the card of Phyllis Jean
Adams because she was told signing the card would "let
me vote whether I want a union," and she testified, "I
signed a card so that I could have a voice as to whether
I wanted a union or not.
Denise Goodlet read the card and was not told to disre-
gard anything , on it. She answered "yes" to a leading
question whether she was told by someone present it was
only to get an election, and then explained she was told
by someone that 80-percent was needed to get an elec-
tion and that was the purpose of the card. The evidence
does not support a finding that a card solicitor told her
the card was only to obtain an election . All it shows is
some employee made the statement she last testified to.
This is insufficient to invalidate her prima facie valid
card.
Phyllis Adams read the card and was not told to disre-
gard anything on it. On cross-examination she testified
she does not know whether she was told the only pur-
pose of the card was to get an election. She did not, as
Respondent claims, testify she was ' told the card would
let her vote, but, rather, identified the card as something
that let her vote for or against the Union . Her views of
the purpose of the card do not substitute for its plain lan-
guage or the message of the solicitor, which she appar-
ently does not recall. Her card is valid.
Judith Wolfe does not remember who solicited her
card; says she was told by the solicitor or someone else
the card was only to obtain an election or something like
that, but only remembers something about needing 80
percent of the nurses to get an election . The prima facie
validity of her card is unrebutted.
Pamela Wilson cannot recall who solicited her card,
but concedes she read it. She first testified that she asked
why it was worded as it was, and was' told it was to
show ONA that 80 percent of the staff was interested in
their representation and that the card would not mean
what it said unless ONA was elected , and the card was
only to get an election. She later changed her testimony
to reflect that the solicitor told her the wording did not
matter because the point was to show ONA that 80 per-
cent of the staff was interested in having,them for a rep-
resentative "or something like that." I ,am persuaded that
Wilson was a confused witness whose testimony is not
sufficiently reliable to warrant invalidating her prima
facie valid card.
Carolyn Dearth signed her card at a union meeting.
Before she signed it a representative of ONA talked
about representation and the things ONA possibly would
or could do. Dearth was distracted by her five young
children that were with her and concedes she could not
pay much attention to the speaker . I do not credit her
testimony that she was told by "whoever" gave it'to her
that the card was only for an election because it was a
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"yes" answer generated by a leading question" and her
recollection of other events of the same transaction is ex-
ceedingly poor. Her card is valid.
Betty Schultz cannot remember precisely what was said
to her when she signed her card, and it is plain from her
testimony that while she concluded the purpose of the
card was to secure an election she cannot certify that
was said . 87 Her prima facie valid card is evidence superi-
or to such generalized testimony , and I will count her
card.
Nancy Voix Wilson read her card before, signing it, and
was told if ONA got 80 percent support it would orga-
nize an election to have them represent the nurses in bar-
gaining with the hospital. This does not amount to a
"clear and deliberate" cancellation of the language on
the card, and the card is valid.
Shirley McCormic signed her card at a union meeting.
She agrees with the following leading question: "Did
Joyce Batz [sicI88 say, `What the heck? Go ahead and
sign it. It won't hurt. It only shows we're interested in
what they have to say."' The General Counsel is incor-
rect in stating she testified she read the card, but he is
correct that Batze's words do not invalidate McCormic's
card. McCormic , like the other nurses, is well educated
and presumably understands what she signs . There is no
showing Batze was doing anything more than proffering
an opinion, and it does not appear Batze solicited the
card from McCormic. McCormic's card is valid.
Jennifer Stoops credibly testified that she read and
signed an authorization card, and was told it was "just a
show of interest" because ONA would not begin organi-
zational activities until they had a "decent show of inter-
est" from the nurses . Stoops is an intelligent woman who
read what she signed, and the mere fact ONA purported-
ly would not organize until they had preliminary evi-
dence that a substantial number of nurses wanted to be
organized does not render Stoop 's otherwise valid card
invalid.
Respondent contends the cards of Karen Purdum and
Joanne Conn are invalid because they were solicited with
a misrepresentation that only a few more cards were
needed to reach a total of 80 percent of the nurses with
signed cards . In response to leading questions on cross-
examination Conn testified card solicitor Gail Sizemore
told her 80 percent of the cards were needed for an elec-
tion and only a couple more were needed, and Purdum
averred that card solicitor Mary Hackney told her ev-
eryone but one other had signed a card and they needed
a few more to make the 80 percent to obtain an election.
Purdum later corrected her testimony to reflect that
what Hackney actually said was that they had to have 80
percent signed. Apart from the lack of weight accorded
to "yes" answers to leading questions, a representation
that many, even a majority, have signed cards is immate-
rial.89
88 American Cable Systems, supra.
87 No weight is accorded to her "yes" answer to the conclusory lead-
ing question, "Did she tell you words to the effect that the card was only
to get an election?" American Cable Systems, supra
88 Joyce Batze is a registered nurse.
89 Merrill Axle & Wheel Service, 158 NLRB 1113 (1966).
Respondent would invalidate the cards of Phyllis
Carney, Mary Beth Owen, Martha Way, and Elsie Johnson
because they were told signing an authorization card was
required to become a member of ONA. Carney read the
card before she signed it, and testifies that she had gone
to a couple of meetings and wanted the ONA. She does
not recall who, but says she was told by somebody that
she had to sign the card to become a member of ONA. I
think it is clear that she knew what she was signing and
wanted to be represented by the ONA. The unidentified
"somebody" she speaks of has not been shown to be a
union agent or even a card solicitor . Her card is valid.
Owen read and signed her card , and does not remember
being told she had to sign an authorization card to
become a member. Her card is valid . Way gives no testi-
mony , in support of Respondent 's argument , and says she
glanced at the card before she signed it, but did not care-
fully read it. Given the brevity of the card language and
the fact she filled out and signed it I conclude she, a lit-
erate and well-educated person, knew what the card
said. Way's card is valid. Johnson had turned in an appli-
cation for membership before she signed an authorization
card . She credibly testified that she read the card, knew
it was for representation by ONA, and was , never told
this card was for membership . Her card is valid.
- Respondent had not shown that any of the authoriza-
tion cards received in evidence are invalid , and I con-
clude and find they are all valid.
C. The Majority
On August 14, 1979, the Union had 93 signed and
valid authorization cards in a unit of 183 nurses90 and
thereafter maintained its card majority until the March
20, 1980 election.
VIII. THE REQUESTED BARGAINING ORDER
The sheer volume of Respondent's unfair labor prac-
tices extending from August 1979 beyond the March 20,
1980 election is instructive. Ten instances of unlawful in-
terrogation; two warnings that union adherents had been
stigmatized by Respondent because of their union activi-
ty; seven threats of loss of benefits; two threats of an in-
evitable strike; three threats of loss of employment; one
threat of unspecified retaliation; one threat to refuse to
bargain; one instance of coercively cautioning an em-
ployee about testifying before the Board; two instances
of solicitation of employees to vote against ONA and to
persuade others to do so; three instances of solicitation of
employees to abandon ONA and pursue their grievances
through an independent union or a doctor/nurse commit-
tee; one instance of blaming the delay in part-time em-
ployees' benefits on the pending representation election;
one instance of placing the onus on the Union for threat-
ened changes in working conditions ; two independent so-
licitations of (and promises to, remedy) employee com-
plaints and grievances; six independent promises to
remedy employee concerns; the maintenance and dispar-
ate enforcement of unlawful solicitation and distribution
90 Patricia Aldridge and Barbara Wright are excluded from this com-
putation. Their inclusion would increase the Union 's majority margin
MIDDLETOWN HOSPITAL ASSN,
rules; the adoption and maintenance' of the Professional
Relations Conference Group as a forum for resolving
employee concerns ; the implementation of the "one-in-
Five" and "Speak Out" programs for the purpose of so-
liciting, promising, and remedying employee complaints
and grievances ; and the announcement and implementa-
tion of (a) an adjustment in the cost-of-living base for
calculating cost-of-living pay, (b) discontinuance of low
workload days, (c)' the every other weekend off policy in
the Intensive Care Unit, and (d) the part-time employee
benefit program certainly cannot be casually fobbed off
as minor, isolated occurrences . Thirty violations took
place between the issuance of the direction of election on
February 2, 1980 and the election on March 20, 1980.
These unfair labor practices, which I find were' part of
Respondent's general campaign to destroy the nurses'
support for the Union, had a serious impact on all unit
members. The very number of the violations would seem
to require a finding of considerable residual impact. The
threats of loss of employment , loss of benefits, unspeci-
fied retaliation, and stigmatization of union adherents
were extremely serious in nature and of a type likely to
be widely disseminated among the nurses-911 Moreover, it
is settled that "Respondent's unlawful solicitation of
grievances, its express and implied promises to correct or
remedy the same, and its actual adjustment of some of
the employees' complaints ... constitute sufficiently
egregious conduct to warrant a bargaining order,"92 and
the following excerpt from the Board's decision in Tele-
dyne Dental Products Corp.,91' is descriptive of and appli-
cable to unlawful conduct of the Respondent:
In essence, we are presented with a situation where-
in the Respondent has deliberately embarked upon a
course of action designed to convince the employ-
ees that their demands will be met through direct
dealing with Respondent and that union representa-
tion could in no way be advantageous to them. Ob-
viously such conduct must, of necessity, have a
strong coercive effect on the employees"freedom of
choice, serving as it does to eliminate, by unlawful
means and tactics, the very reason for a union's ex-
istence . We can conceive of no more pernicious
conduct than that which is calculated to undermine
the Union and dissipate its majority while refusing
to bargain . Neither is there any conduct which
could constitute a greater impairment of employees'
basic Section 7 rights under our Act, especially be-
cause such conduct by its very nature has a long-
lasting, if not permanent, effect on the employees'
freedom of choice in selecting or rejecting a bar-
gaining representative.
There is no allegation of an unlawful refusal to bargain
before me, but the Board's rationale is clearly applicable
to Respondent's conduct, which was, I find, aimed at un-
dermining the Union's support.
Respondent's unfair labor practices clearly interfered
with the conduct of the March 20, 1980 election and
s2 See Devon Gables Nursing Home, 237 NLRB 775 (1978).
ea Jefferson National Bank, 240 NLRB 1057, 1079 (1979).
as 210 NLRB 435 (1974).
573
were:of such a nature that the likelihood their lingering
effects can be erased by a traditional order in remedy of
8(a)(1) violations is so slight as to be almost nonexistent.
Accordingly, I conclude and find that the Respondent's
unfair labor practics were sufficiently extensive and suffi-
ciently grave that their impact can reasonably be expect-
ed to make a fair election 'unlikely, and, therefore, the
employees' signed authorization cards are a more reliable
expression of their desire for union representation.94 In
the absence of a request for bargaining , the beginning of
Respondent's bargaining obligation is established as
August 14, 1979, at which time the Union attained ma-
jority status.
CONCLUSIONS OF LAW
1. Middletown Hospital Association is an employer en-
gaged 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. Ohio Nurses Association is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for collective bargaining:
All registered nurses employed, by the Employer at
its Middletown, Ohio facility, including staff nurses,
infection control nurses,'nurse instructors, and utili-
zation review nurses ; but excluding all other em-
ployees; all office clerical employees and all guards
and supervisors as defined in the Act.
4. At all times since August 14, 1979, and continuing
to date, the Union has been the designated representative
of all the employees within the appropriate unit for pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By coercively interrogating employees with respect
to their union activities and those of other employees,
Respondent violated Section 8 (a)(I) of the Act.
6. By making statements to employees that strikes are
inevitable, thereby leaving the impression that Respond-
ent will not bargain in good faith, Respondent violated
Section 8(a)(1) of the Act.
7. By threatening to refuse to bargain if the Union
were selected by the employees as their collective-bar-
gaining representative, Respondent violated Section
8(aXl).
8. By telling employees the Respondent had attached a
stigma to them because of their, union activities,, Re-
spondent violated Section 8(a)(1) of the Act.
9. By telling employees the selection of the Union to
represent them would be an exercise in futility, Respond-
ent violated Section 8(a)(1) of the Act.
10. By soliciting employees to vote against the Union
and persuade other employees to do likewise, Respond-
ent violated Section 8(a)(1) of the Act.
11. By warning employees they could be hurt by testi-
fying in a Board proceeding, Respondent violated Sec-
tion 8(a)(1) of the Act.
94 NLRB v. Gissel Packing Co., 395 U.S. 575 , 614-615 (1969).
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
12. By soliciting employees to abandon the Union and
pursue their concerns through an independent union or a
doctor/nurse committee, Respondent violated 8(a)(1) of
the Act.
13. By telling employees a grant of part-time employee
benefits would be delayed because of a pending represen-
tation election, Respondent violated Section 8(a)(1) of
the Act.
14. By threatening employees with loss of employ-
ment, changes in working conditions, loss of present and
future benefits, and other unspecified retaliation because
of their support of the Union, Respondent violated Sec-
tion 8(a)(1) of the Act.
15. By blaming the Union for adverse future changes
in working conditions, Respondent violated Section
8(a)(1) of the Act.
16. By soliciting employee complaints and grievances,
and promising to remedy them , Respondent violated sec-
tion 8(a)(1) of the Act.
17. By announcing and implementing an adjustment in
the cost-of-living wage base, part-time employee benefits,
the discontinuance of its low workload days policy, and
the every other weekend off practice in the intensive
care unit and coronary care unit, all in order to induce
its employees to refrain from supporting the Union, Re-
spondent violated Section 8(a)(1) of the Act.
18. By implementation of its "One-in-Five" and
"Speak Out" programs for the purpose of soliciting,
promising to remedy, and remedying employee com-
' plaints and grievances in order to induce them to refrain
from supporting the Union, Respondent violated Section
8(a)(1) of the Act.
19. By adopting and maintaining the professional rela-
tions conference group as a forum for resolving employ-
ee complaints and grievances and for purpose of discour-
aging support of the Union, Respondent violated Section
8(a)(1) of the Act.
20. By maintaining and disparately enforcing an un-
lawful solicitation and distribution rule, Respondent vio-
lated Section 8(a)(1) of the Act.
21. The unfair labor practices set forth above are
unfair labor practices effecting commerce within the
meaning of Section 2(6) and (7) of the Act.
22. Respondent engaged in objectionable conduct re-
quiring that the election conducted on March 20, 1980,
in Case 9-RC-13186 be set aside.
23. The violations of the Act found interfered with the
election process, prevented the holding of a fair election,
and warrant the issuance of a collective -bargaining
order.
[Recommended Order and notice omitted from publi-
cation.]
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. My
original decision in this proceeding issued on January 8,
1982, finding that Middletown Hospital Association (Re-
spondent) had violated Section 8(a)(1) of the Act, had
unlawfully interfered with a representation election, and
should be required to bargain with the Ohio Nurses As-
sociation (Union) as the exclusive representative of all
employees in the following unit:
All registered nurses employed by the Employer at
its Middletown, Ohio facility, including staff nurses,
infection control nurses, nurse intructors , and utili-
zation review nurses; but excluding all other em-
ployees, all office clerical employees and all guards
and supervisors as defined in the Act.
This unit was found appropriate by the Regional Di-
rector for Region 9, and Respondent's request for review
of the Regional Director's decision was denied by the
Board. Respondent has consistently contended, and still
contends, that a unit limited to nurses is inappropriate
and that the unit should be one of all professional em-
ployees-
By orders of July 14 and October 29, 1982, the Board
reopened the record and remanded the proceeding for
the purposes of receiving evidence of changed circum-
stances effecting the unit determination, receiving the
record of the representation hearing in Case 9-RC-
13186, reconsidering the unit issue in light of the Board's
decision in Newton- Wellesley Hospital, 250 NLRB 409
(1980), and the issuance of a supplemental decision in
light of the evidence received at the supplemental hear-
ing. I
A supplemental hearing was held before me, as direct-
ed by the Board, at which all parties were present and
had opportunity to submit evidence encompassed by the
Board's Order. All parties filed able posttrial briefs that
have been considered.
On the entire record" before me, including my obser-
vations of the demeanor of those witnesses testifying
before me, I make the following
FINDINGS AND CONCLUSIONS
The basic issue on which findings of unit inclusion or
exclusion, the Union's majority, and the propriety of a
bargaining order turn is the appropriateness of the em-
ployee unit alleged. The parties, as I have noted, have
differing views. This issue must be resolved in the con-
text of existing Board law as exemplified in Newton-
Wellesley, supra, and St. Francis Hospital, 265 NLRB
1025, 1031 (1982). The procedure to be followed in
health care units is set forth in St Francis Hospital as fol-
lows:
We begin with a maximum of seven potentially ap-
propriate units ...: physicians, registered nurses,
other professional employees, technical employees,
business office clerical employees, service and main-
tenance employees, and maintenance employees.
These, units are neither presumptively appropriate
nor will they invariably be granted. They are,
rather, commonly found employee groups which
may warrant their own bargaining units if it is ade-
quately demonstrated that they actually possess a
distinct community of interest, separate and apart
from other hospital employees. Accordingly, if a
I Errors in the transcript have been noted and corrected.
MIDDLETOWN HOSPITAL ASSN. 575
petitioner seeks to represent a unity -comprised°pf ohe
such potentially appropriate group , we then apply
the various community -of-interest criteria to the
particular employees involved to determine whether
they , in fact comprise an appropriate bargaining
unit. If sufficient intragroup identity is established
and there are sufficient distinctions separating these
employees from others at the facility, we will find
the petitioned-for unit appropriate . If , they fail to
demonstrate such, singular identity, we will not find
the unit appropriate.
The unit found by the Regional Director and now
urged by the Union and. the General Counsel is a "poten-
tially appropriate" registered nurses unit . 'A determina-
tion of whether it is in fact appropriate must be made on
the record before me in accordance with the Board's
teachings in Newton- Wellesley and other of its decisions.
Respondent is an Ohio nonprofit corporation operating
a 420-bed general hospital at Middletown , Ohio, where it
provides acute care and outpatient clinic services , includ-
ing the 805 clinic . Additionally, Respondent has operated
the Conover Health ' Center, an outpatient clinic at
Franklin , -Ohio, since August 1980 by contract with the
Conover , board of trustees . During the original represen-
tation hearing in January 1980 the pending opening of
the Conover Health Center was mentioned as a contract-
ed for facility, which had not yet become operational.
Respondent has 1061 employees at these facilities, of
whom approximately 185 are nonsupervisory registered
nurses. Respondent also employs the following stipulated
nonsupervisory professional employees : 21 medical tech-
nologists, 3 therapeutic dieticians, 7 pharmacists, 2 occu-
pational therapists , 1 recreational therapist, 2 speech and
hearing therapists, 3 physical therapists, 7, social workers,
5 instructors in the education and training department of
whom 3 are registered nurses, 2 infection control officers
(1 of whom is a registered nurse and the other , who suc-
ceeded a ` nurse in the position, not a nurse but holding a
Bachelor of Science degree in medical technology), 3
utilization review persons who are all registered nurses,
and 2 nutrition educators. -
Respondent also'employs 15 radiological technologists,
2 nuclear medical technologists , and 2 'respiratory -thera-
pists. Thereis no agreement on the status of these 19 as
either professional or technical employees . An intrave-
nous therapy department was activated by Respondent in
August 1981, but the intravenous therapist positions pro-
vided for in Respondent's plans --for this department had
not been filled at the time of the hearing before me.
Similarly, a projected position of Chaplain had not been
filled, but I can conceive of no reasonable basis for con-
sidering a chaplain a member of either unit contended
for by the parties.
The following employees are stipulated supervisors
within the meaning of Section 2(11) of the Act: vice
president of medical/surgical nursing;, vice president,
nursing specialties; president, nursing director of educa-
tion and , training; nurse managers ; clinical coordinators;
section heads and administrative technician in the pathol-
ogy department; 'director of the pathology department;
chief technician for isotopes , administrative technician,
and the, director in the radiology department ; chief phar-
macist; director, assistant director, and supervisors in the
dietary department; director of ambulatory care center,
coordinator of 805 clinic ; director of therapies; director
and assistant director of respiratory therapies ; director of
physical therapy; director of occupational therapy; direc-
tor of speech and hearing therapy; director of quality as-
surance . The parties could not agree on the status of the
assistant director of education and - training , Barbara
Wright.
All' but approximately 32 of the registered nurses are
administratively assigned to the medical/surgical nursing
division of nursing , specialties division. The 805, Con-
over, and other ambulatory care clinics are in the nurs-
ing specialties- division. The vice president of nursing
specialties estimates about 40 percent of the nurses are in
her division. The vice president of medical/surgery nurs-
ing estimates about 125 nurses under her direction. Both
of these vice presidents are registered nurses. The two
levels of supervision between them and the nurses are
staffed with registered nurses.
The 3 'nurse instructors in education and training, the
health , nurse, and 24 registered nurses who comprise a
float pool for assignment as needed for relief and vaca-
tion purposes, are administratively placed in the human
resources/staff division headed by a vice president. The
three utilization review persons (all of whom , are nurses)
and infection control officers (one of whom is a nurse
and the other ' a medical technologist) are administrative-
ly situated under the executive vice president . The float
nurses are directly supervised by the nurse manager,
who is a registered nurse, of the department to which
they are assigned . The registered nurses in the clinics
and,the education and training, infection control, and uti-
lization review functions are all directly supervised by a
registered nurse.
Considering that more than 150 of the registered
nurses are administratively assigned to the two specific
nursing divisions and the supervisory line in those divi-
sions from the division vice presidents down is composed
exclusively of registered nurses, and further considering
that the float nurses have the same direct supervision
when they work as do the other staff nurses, it is clear
that approximately 174 nurses enjoy common supervision
separate from that of other professionals and that the
unique status of nurses is recognized by the Respondent
in grouping 150 of them in nursing divisions.,
The grouping of the remaining nurses in other admin-
istrative divisions is purely an administrative device
rather than an indication of direct supervision by non-
nurse hierachy.
All of the nonsupervisory registered nurses, except
those in education and training, infection control, utiliza-
tion review, and perhaps health nurse, are general duty
staff nurses. Of the approximately 174 nonsupervisory
staff nurses there are no more than a half dozen at the,
outpatient clinics. The remaining 170 or so are, as the
Regional , Director correctly found , directly responsible
for inpatient care on a 24-hour per day, 7-day per week
basis. No other professional employees have'the same re-
sponsibility for continuously monitoring the entire well
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being of patients as do the staff nurses . On the contrary,
the other professionals perform only that portion of the
services required of them by virtue of their training and
expertise in a special discipline. They are neither quali-
fied nor assigned to perform the functions of a staff nurse
or other professional versed in specialties other than
their own.
Of the other stipulated and contested professional em-
ployees currently employed all but the seven social
workers, two nutrition educators, and three dieticians are
administratively situated under the executive vice presi-
dent and report directly to supervisors in their specialty
rather than the supervisory nurses of the units in which
they may happen to be working on any given occasion.
The intravenous therapists have been placed under the
vice president of medical/surgical nursing for administra-
tive purposes, but how and by whom they will be direct-
ly supervised if and when they are hired is a matter of
conjecture at this point.
Staff nurses, medical technologists , radiologic tech-
nologists, and nuclear medicine technologists are hourly
paid. All other employees discussed in this decision as
professional employees are salaried . Hourly paid employ-
ees receive overtime and shift differential pay and have
automatic wage progression at 6, 15, 24, and 36 months
after entering on employment . Salaried employees re-
ceive no overtime and no automatic wage increases, but
may receive merit increases . There is a centralized per-
sonnel function covering all employees, and all employ-
ees of the hospital receive the same insurance and other
fringe benefits.
Registered nurses are graduates of 2-, 3-, or 4-year
nursing programs and are licensed by the State of Ohio.
Other professionals have as much or greater education in
terms of duration of schooling, and some are licensed by
the State of Ohio, e.g., pharmacists, occupational thera-
pists, speech and hearing therapists, and physical thera-
pists . Those professionals who are not licensed generally
have passed examinations and/or been approved by their
own national professional associations as proficient in
their respective specialties . There are some similarities
between the curricula for nurses and other professionals,
but the specialized orientation of each course of study
toward a particular profession renders any real compari-
son between them somewhat meaningless . All are of the
genus education, but each is a different species. Simply
put, the nurses are trained to be nurses . The other profes-
sionals are not. That nurses ' training is considerably dif-
ferent is illustrated by the fact that professionals without
it and licensure as a nurse may not transfer or be as-
signed to or perform the duties of staff nurse positions,
but staff nurses may perform the duties of some whom
Respondent denominates professionals . See, for instance,
the projected duties of intravenous therapists, which are
and have been performed regularly by staff nurses.
Respondent makes the point that,the Hospital is com-
pletely functionally integrated in providing patient care,
and that patients admitted require the services of numer-
ous types of professional employees. Respondent does
operate a modem hospital providing the many profes-
sional services that make up total patient care. To co-
ordinate the delivery of these services and the efficient
utilization of hospital resources it has established several
interdisciplinary committees that meet periodically. It ap-
pears that the committee meetings are either chaired or
attended by a supervisory nurse, but by no nonsuperviso-
ry nurse except in the circumstance when one is tempo-
rarily substituting for an absent or as yet undesignated
supervisor. In addition to these ' committees there are
weekly conferences between the nursing staff, physical
therapy department, and social service people for the
purpose of planning postdismissal needs for patient to be
discharged from that particular unit. There are similar
weekly conferences between a clinical coordinator and
the director of physical therapy to review patient
progress, and between the social worker and nurses in
the maternal child health care clinic , an outpatient clinic,
for about an hour on those Tuesdays and Thursdays that
new patients come in. These various committees and
interdisciplinary meetings are of a type the Board has
characterized as "mechanisms to enhance communica-
tions and cooperation among numerous disciplines work-
ing towards a common goal" and "a natural response to
attempt to solve the problems in planning and coordina-
tion inherent in the operation of such a complex institu-
tion" with "only a minimal impact on the day-to-day job
responsibilities of RNs." Long Island College Hospital,
256 NLRB 202, 206-207 (1981).
Much of the work of the nonnurse professionals is per-
formed in their own departments under their own super-
visor. This is particularly true of the various therapists
and technologists. The social workers and recreational
therapist carry out a portion of their duties away from
the hospital or clinic premises. The staff nurses, on the
other hand, spend almost all of their time in direct pa-
tient care units and do not generally venture outside
their assigned areas except in limited instances such as
those when it becomes necessary for them to assist in the
transportation of patients from their rooms to the various
areas where therapy or diagnostic procedures are per-
formed. The visits of other professionals to patient care
areas for purposes of providing specialized treatment
such as therapy , or obtaining necessary information pro-
vide them with much less contact with the patients than
the nurses regularly have as a result of their constant
monitoring of the patient's condition around the clock.
Moreover, the contact of the nurses with other profes-
sionals, which arises only on specific need for that pro-
fessional to contact them or their patient, is patently far
less than the contact of the staff nurses with each other
every day as they work in their assigned units . Regis-
tered nurses are eligible for transfer from one unit or fa-
cility, including the clinics, to any other registered nurse
position at any location. They do not, contrary to Re-
spondent's argument, interchange with other profession-
als, nor do professionals interchange with each other.
The mere fact that Respondent has transferred or is plan-
ning to transfer relatively minor portions of the work
previously done by nurses to other professionals , such as
intravenous and respiratory therapy to therapists and the
preparation of intravenous additives to pharmacists, has
nothing to do with interchange, nor does it obscure the
plain fact that the duties and responsibilities of nurses
MIDDLETOWN HOSPITAL ASSN. 577
remain fundamentally unchanged and undiminished after
these work transfers.
On the foregoing facts, I find that a unit of registered
nurses is appropriate for purposes of collective -bargain-
ing because (1) more than 80 percent of them are admin-
istratively placed in nursing divisions overseen by regis-
tered nurses and their supervisory hierachy is completely
composed of registered nurses ; (2) they have similar edu-
cation and training and are required to have the same
state license; (3) they can be transferred and inter-
changed throughout the various hospital units and clin-
ics, whereas other professionals cannot so easily be uti-
lized ; (4) they work in close and continuous contact with
one another , as opposed to their routine and intermittent
contact with other professionals ; (5) there is no signifi-
cant functional integration between the registered nurses
and other professionals; and (6) they have the unique re-
sponsibility for continuous around -the-clock monitoring
of the condition of patients committed to their care. It is
also worth noting that the Union has never represented
anyone but nurses , and at the time of the 1980 represen-
tation hearing represented and had collective-bargaining
agreements covering over 3000 registered nurses in units
limited to registered nurses at 27 different facilities in
Ohio, of which more than half are private not-for-profit
health care facilities . At eight of these private facilities
the Board certified the Union as collective -bargaining
representative of the employees in registered nurse units.
On facts similar to the foregoing the Board has consist-
ently found units limited to registered nurses to be ap-
propriate for purposes of collective -bargaining ; Newton-
Wellesley , supra; Long Island College Hospital , supra;
Ralph K Davies Medical Center, 256 NLRB 1113 (1981);
Ojai Valley Community Hospital, 254 NLRB 1354 ( 1981);
Frederick Memorial Hospital, 254 NLRB 36 (1981); Mil-
waukee Children's Hospital Assn., 255 NLRB 1009 (1981).
The Board has taken care to point out in these cases that
the unit findings do not contribute to undue proliferation
of units in the health care industry . Respondent's argu-
ment to the contrary must therefore be rejected. I am
well aware of the fact stressed by Respondent various
United States courts of appeals have disagreed with the
Board's determinations in health care units, and Re-
spondent is well aware that , as I noted in my previous
decision, I am required to follow Board precedent until
the Board or the Supreme Court overrules them, not-
withstanding contrary decisions by courts of appeals.
The only conceivably significant or relevant changes
of circumstances since the representation hearing affect-
ing the unit determination were the opening of the Con-
over Clinic, the hiring of a nonnurse as an infection con-
trol officer, the movement of the outpatient clinics from
the administrative control of the executive vice president
to the control of the vice president of nursing specialties,
the placing of social services and intravenous therapy
under the vice president of medical/surgical nursing, the
establishment of interdisciplinary committees and regular
meetings of representatives of nursing groups and other
professionals, and the movement of the maternal and
child health care center from another building on the
premises to the main hospital building . The administra-
tive maneuvering and the physical movement of maternal
and child health care center are interesting but not par-
ticularly significant to the unit determination issue except
for the General Counsel's offhand observation that plac-
ing the clinics within a nursing division may suggest a
further consolidation of nurses under common supervi-
sion . The interdisciplinary committees and meetings have
been dealt with above. The placement of social services
and the somewhat unstaffed intravenous therapy group
under medical/surgical nursing does not obscure the fact
that this division is predominantly nursing oriented, su-
pervised , and staffed, nor does it add any convincing
weight to Respondent 's argument for an all professional
unit.
The opening of Conover Center and the appointment
of a nonnurse infection control officer raises no issue
other than whether the nurses at the Center or serving as
infection control officer are included in the appropriate
unit.
With respect to the opening of the Conover Clinic, it
is clear from the record of the representation hearing in
Case 9-RC-13186 that the parties were well aware that
it was about to open .2 Karen Mehl, vice president of
nursing specialties , testified that the only professionals
working at Conover are Debra Parr and Pauline Robin-
son, both of whom are registered nurses . Debra Parr was
a staff nurse in the main hospital for several years prior
to the Conover Center opening . The people working at
the center are Respondent 's employees with the same
wage scales and other benefits. Respondent 's employees
have preference over new hires for transfer from or to
Conover Center. The center receives all its printing sup-
plies, medical supplies and equipment, pharmaceutical
supplies, and maintenance service from the Hospital.
Electrocardiograms done at the center are transmitted to
the Hospital 's cardiology department for analysis, and
the results are reported back to the center. In short, the
center , like the other clinics, is an integrated part of the
Hospital, and depends on the Hospital for its existence.
Its employees are Respondent 's employees, and the
center nurses are part of Respondent 's registered nurse
force. They are under the same administrative control
and personnel policies , and do, as Parr 's situation indi-
cates, interchange with the other nurses . Their educa-
tion, training , and licensing is identical to that of the
other staff nurses, and their interests appear to be more
closely aligned with nurses at the Hospital than with
other professionals . Accordingly, I conclude they are in
the unit found appropriate . Long Island College Hospital,
supra.
The replacement of one of the two registered nurses
serving as infection control officers with a medical tech-
nologist is unprecedented at this Hospital , but Respond-
ent argued in the 1980 representation case that the job
could be adequately staffed with nonnurse professionals.
2 As 11 read the Board 's Order on remand I am required to consider the
opening of the Conover Clinic as an alleged "changed circumstance." I
have done so, but remain of the opinion that issue could have been liti-
gated in the representation case because the parties were well aware of
the pending opening, and Respondent certainly must have known how
the clinic would be staffed . If I am correct in this view , Respondent was
not entitled to rehtigate the matter . Pittsburgh Plate Glass Co v NLRB,
313 U.S 146, 162 ( 1941); Board's Rules and Regulations Sec 102 67(t)
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Infection control is required by the joint commission on
the accreditation of hospitals. To that end these officers
are charged with auditing and containing infection
within the Hospital , which encompasses surveillance,
follow-up, audit, and recommendations on procedures to
follow in, all areas of the Hospital. The staff nurses
inform the infection control officers of possible infection
problems. The officers then examine the charts of the, in-
fected patient or patients and ensure that patients with an
infectious disease are properly isolated . The job title at
the time of the representation hearing was nurse epide-
mologist. This was changed to infection control officer
hospital epidemologist after the hearing, but no change
in the duties of the position accompanied the title
change.
In addition to the nurse acting as infection control offi-
cer, the Union seeks to include the nurse instructors and
utilization review nurses . There has been no change in
duties or type of personnel employed as instructors or in
utilization review . These positions have always been
filled by registered nurses, which indicates Respondent
has long considered them to be positions requiring nurs-
ing education and training , and has acted accordingly.
Moreover, the job title for utilization review personnel
apparently remains utilization review nurse. Neither they
nor the nurse who is an infection control , officer have the
same 24-hour responsibility for patient care as do the
'staff nurses . Nevertheless the education, training, experi-
ence, and , licensure of the nurses in these three functions
are like those of, the staff nurse, and they enjoy the same
transfer privileges . Like the nurses in the various clinics,
they appear to have a greater community of interest with
the other registered nurses than the various nonnurse
professionals . I am persuaded that the registered nurse
serving as an infection control officer , the nurse instruc-
tors, and the utilization review nurses should properly be
included in the unit found appropriate. Newton- Wellesley
Hospital, supra; Frederick Memorial Hospital supra; Long
Island College Hospital, supra.3
The Board has ordered me to reconsider the appropri-
ateness of the unit involved herein in light of,the Board's
decision in Newton-Wellesley Hospital, 250 NLRB 409
(1980), after receiving the representation hearing record
in Case 9-RC-13186 and the parties' evidence of
changed circumstances effecting the unit determination. I
have done so and, as the preceding pages , of this supple-
mental decision reflect, arrived at the conclusion that the
unit found appropriate in my previous decision remains
appropriate on the basis of Board precedent. That being
the case, I ascertain no reason to modify the conclusions
of law or recommended Order set forth in my decision
of January 8, 1982, and accordingly reissue them- [omit-
ted from publication].
s compare Ralph K Davies Medical Center, 256 NLRB 1113 (1981);
and Addison-Gilbert Hospital, 253 NLRB 1010 (1981), wherein utilization
review coordinators were excluded from units of registered nurses.
Andrew L. Lang, Esq., for the General Counsel.
Thomas A. Swope, Esq., and James J. Grogan, Esq., for
the Respondent.
Janis W. Wise, Esq., for the Charging Party.
SECOND SUPPLEMENTAL DECISION
CLAUDE R. WOLFE, Administrative Law Judge. By
Order of 27 September 1984 the Board remanded this
proceeding to me for a determination of the appropriate-
ness of the registered nurses unit involved in the case by
applying the "disparity-of-interests" standard explained
in its Decision and Order in St. Francis Hospital, 271
NLRB 948 (1984) (St. Francis II).
My original and supplemental decisions previously
issued found the following unit to be appropriate for pur-
poses of collective bargaining:
All registered nurses employed by the Employer at
its Middletown , Ohio facility, including staff nurses,
infection control nurses, nurse instructors, and utili-
zation review nurse; but excluding all other employ-
ees, all office clerical employees and all guards and
supervisors as defined in the Act.
The Ohio Nurses Association (Union) has consistently
contended that this unit is appropriate , but has also
stated, during `the 1980 representation hearing in Case 9-
RC-13186, that it wished to proceed to an election if a
different appropriate unit was found by the Regional Di-
rector or the Board. On the other hand, Middletown
Hospital Association (Respondent Employer) has just as
consistently contended that the registered nurses unit is
not appropriate, and that the appropriate unit should be
one of all professional employees including the nurses, al-
though it now indicates in the alternative that a unit of
all health care professionals might be appropriate.
In St. Francis II, the Board explained its "disparity-of-
interests" standard as follows:
We are persuaded that the phrase "disparity-of-
interests" properly emphasizes that more is required
to justify a separate unit in a health care institution
than' in a traditional industrial or commercial facili-
ty. That is' to say, the appropriateness of the peti-
tioned-for unit is judged in terms of normal criteria,
but sharper than usual differences (or "disparities")
between the wages, hours, and working conditions,
etc., of the requested employees and those in an
overall professional or nonprofessional unit must be
established to grant the unit . Requiring greater dis-
parities in the usual community-of-interest elements
to accord health care employees separate represen-
tation must necessarily result in fewer units and will
thus reflect meaningful application of the congres-
sional injunction against unit fragmentation."
The Board also emphasized "that no unit is per se appro-
priate,"2 but I am persuaded by a reading of the Board's
"disparity-of-interest" standard explanation set forth
above, together with Section 9(b)(1) of the Act, which
prohibits,the Board from deciding that a unit including
both professional and nonprofessional employees is ap-
propriate unless a majority of the professional employees
vote to be included in such a unit, that a unit composed
of all of the Respondent Employer's professional em-
1 St. Francis II, 271 NLRB at 953.
8 Id.
MIDDLETOWN HOSPITAL ASSN.
ployees would in all probability be appropriate for pur-
poses of collective bargaining. This conclusion is consist-
ent with existing Board and court precedent finding an
all professional unit including registered nurses to be ap-
propriate. Community Health Services, 259 NLRB 362
(1981), enfd. 705 F.2d 18 (1st Cir. 1983). Mount Airy Psy-
chiatric Center, 253 NLRB 1003 (1981); Victor Valley
Community Hospital, 274 NLRB 870 (1985).
Having so concluded, I further conclude that the issue
before me is whether there are "sharper than usual dif-
ferences ... between the wages, hours, and working
conditions, etc.," of Respondent Employer's registered
nurses, who are clearly professional employees, and its
other professional employees sufficient to warrant find-
ing a separate unit of registered nurses to be appropriate
for purposes of collective bargaining. Not by way of lim-
itation, but by way of guidance, the Board has indicated
the following factors as subjects of evaluation for the
purpose of determining whether the requisite sharper
than usual differences exist: "employees' wages, hours,
and working conditions; qualifications, training, and
skills; frequency of contact and degree of interchange
with other employees; frequency of transfer to and from
the petitioned-for unit; commonality of supervision;
degree of integration with the work, functions of other
employees; area practice and patterns' of collective bar-
gaining; and collective-bargaining history."s
Before embarking on an analysis consistent with the
principles enunciated in St. Francis II, I acknowledge
that previous analyses took as their point of departure
the Board's previous holdings on the appropriateness of
health care units, all of which have been directly or in-
ferentially overruled by: St. Francis H. For this reason,
the facts found in my earlier decisions with respect to
the validity of the registered nurses unit must necessarily
be reevaluated and supplemented because the test of ap-
propriateness of health care bargaining units is no longer
the convmunity-of-interest standard employed by the
Board in other industries but is now the disparity-of-in-
terests' test adopted in St Francis II I have, therefore,
enlarged on some facts previously found in my supple-
mental decision of 25 July 1983. Except to the extent
they are modified or further explained by this decision,
my earlier findings of fact, but not the authorities cited
or conclusions' of-law based, thereon with respect to the
appropriate bargaining unit, are hereby adopted as part
of this, decision. The Union and the Employer have, by
their briefs, provided considerable assistance in this eval-
uation of the 'evidence consistent with the standard set
forth in St Francis H.
After considering the briefs filed by the parties, yet
again reading the record in this case,4 and reviewing my
credibility , findings, I conclude the credible evidence,
much of it uncontradicted, requires the findings of fact
and conclusions of law that are set forth below.
There are approximately 250 to 260 nonsupervisory
professional employees engaged in patient health care. Of
these, about 18S are registered nurses. The parties stipu-
8 Id. fn. 35.
4 Respondent's motion to reopen the record to accept an affidavit from
Its vice president of human resources is denied.
579
lated;° and I therefore find,5 that in addition to the regis-
tered nurses the following employees of the Respondent
Employer are professional employees: medical technolo-
gists, therapeutic dieticians, pharmacists, occupational
therapists, speech and hearing therapists, physical thera-
pists, social workers, instructors in the education and
,training department, infection control persons, utilization
review persons, nutrition educators, and recreation thera-
pists . Of these stipulated professional employees, which
number about 55 in all, approximately 7 are registered
nurses, at least 4 of whom have the same duties as other
professionals in the same job classification. Respondent,
in its brief, mentions accountants; computer program-
mers, public relations assistants, financial analysts, and
purchasing agents as professional employees of the hospi-
tal. The status of these individuals, as well as that of the
chaplain, has not been litigated, and it is not necessary
for the purposes of this decision that their status be re-
solved-6 ,
There is no history of collective bargaining between
the parties. The Union does represent registered nurse
units at approximately 27 health care institutions in the
State of Ohio. This area practice and pattern is a factor
that may be considered, but I conclude, on the basis of
the Board's decision in St. Luke's Memorial Hospital,'
that it, like bargaining history between the parties, is not
a controlling factor. Control of labor relations and per-
sonnel policies and functions for all employees are cen-
tralized in one department directed by one of Respond-
ent's vice presidents, and there is a uniform discipline
and discharge system. The Union, in agreement with the
record and the hospital's claim of identical fringe benefits
for all professional employees, lists the following as ho-
spitalwide policies and benefits applicable to all employ-
ees:
1. Health insurance and major medical insurance
2. Dental insurance
3. Discounts in pharmacy
4. A noncontributory by group life insurance pro-
gram with payment based on earnings
5. A noncontributory pension plan with Hospital
contributions based on a percentage of earnings
6. 'Short term and long term sickness, accident
and disability insurance, based on 50% of the em-
ployee's base earnings
7. Jury duty pay
8. Employee cafeteria where anyone can talk
with anyone else
9. Parking facilities
10. Tuition reimbursement for course work relat-
ed to the employee's current job
11. Maternity leave
12. Bereavement leave
13. Educational leave
14_ Personal hardship leave
5 There is no indication the stipulation was merely for the convenience
of the parties to the detriment of rights and interests of the employees, or
contravened any policy of the Act. Compare Clare Community Hospital,
273 NLRB 1755 ( 1985).
6 The Hospital employs no physicians.
7 274 NLRB 1431 (1985).
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15. Problem procedure
16. Employee publications titled THE SCOPE
and THE DIRECT LINE
17. Biweekly pay periods
18. Job posting, recruiting , interviewing , and se-
lecting persons to fill job vacancies
19. New employee physical examinations -
20. The general orientation to the Hospital's
wages, salaries, benefits and JCAH requirements'
21. Annual evaluations
With respect to wages, Respondent has a wage/salary
scale applicable to all , nonsupervisory employees. Staff
nurses and medical technologists are hourly paid whereas
registered nurses serving in a capacity other than staff
nurse (i.e., infection control, utilization review, and in-
structor), and the remaining employees stipulated to be
professional employees are salaried . The real question in
this regard is whether the amounts paid salaried and
hourly employees are significantly different. Credible tes-
timony and documentary evidence establish that the Hos-
pital has a wage/salary scale divided into ' grade levels,
the highest being grade 15. All the agreed upon profes-
sional employees including the registered nurses are in
pay grades 9 through 13, except for the pharmacist who
is in grade 15. Each grade has five pay steps. Within
each such step there is an hourly rate for those hourly
paid and a biweekly salary for the salaried employees.
All employees are paid every 2 weeks . During this 2-
week pay , period salaried employees work 80 hours.
When the hourly wage rate within a step is multiplied by
80 the result is equivalent to the income of the salaried
employees in that grade and steps This is so because, as
Respondent explains and the record shows, the salary
within each grade and step is determined by multiplying
the 80 hours a salaried employee will work in 2 weeks
by the wage rate paid an hourly employee in the same
grade and step. The mere fact one is salaried and another
hourly paid does not by itself show any significant dis-
parity of interests.9 Most if not all of the registered
nurses are in Grade 11 and the difference between their
wage and that of a professional in the same step of
Grade 9 or Grade 13 is 14 percent. In other words, they
earn 14 percent more than a Grade 9 employee in the
same step and 14 percent less than Grade 13. It is not
unusual, indeed it is quite common, that different mem-
bers of the same bargaining unit have different skills and
different wage levels, and I am not persuaded 14 percent
is a substantial disparity in wages . ' ° There is no disparity
a For example, an hourly paid nurse in Grade 11, Step 5 , receives
$8.48 under the pay scale in evidence . The 2-week salary for that grade
and step is $679. Multiply 80 x 8.48 and you get $678.40 wages for 80
hours work by an hourly paid employee.
° See, e.g., Brown Cigar Co., 124 NLRB 1435 (1959), Palmer Mfg.,
Corp., 105 NLRB 812, 814 (1953); Century Electric Co., 146 NLRB 232,
235 (1964).
10 Compare Southern Maryland Hospital Center, 274 NLRB 1470 (1984)
(25- to 30-percent to 35-percent variance found to be substantial wage
disparity), and Wurster, Bernardi & Emmons, Inc., 192 NLRB 1049 (1971)
(30-percent variance in pay between professionals did not prevent,their
inclusion in the same bargaining unit.)
at all in the , treatment accorded all employees with re-
spect to general wage increases . Respondent's records re-
flect the same percentage wage increases given to all em-
ployees in each of the 10 years immediately preceding
the 1981 hearing in this case , and Respondent's vice
president, Thomas Wiley, credibly testified, that all pro-
fessional employees, including nurses, had received ex-
actly the same percentage of dollar amount general in-
creases or wage adjustments for 19 years prior to the
1980 hearing - in Case 9-RC-13186.
The Union,points out that hourly, paid staff nurses
work overtime and are paid for it; must maintain time
records; are, paid a shift differential; rise through the
within grade wage steps automatically at, 6, 15, 24, and
36 months; do not progress past the 36-month rate; and
receive sick and holiday pay. In contrast, the Union con-
tinues, salaried employees do not keep time records; re-
ceive no overtime or shift differential; receive step in-
creases as merit raises rather than automatically; get no
holiday pay; may get a 15-percent merit increase above
the top step of a pay grade; and are paid full salary for 1
week of illness and compensation for additional time as
Respondent's administration may decide.
Consistent with the need for 24-hour nursing care at
the Hospital, " staff nurses receive a 25-cent wage differ-
ential for work on different shifts and time and one-half
pay for overtime work. Salaried professionals generally
work only the day shift12 and perform no overtime, and
therefore receive no shift differential or overtime pay.
Inasmuch as they are routinely paid for and work 80
hours in each 2-week pay period, there is no need for
salaried employees to maintain time records as do the
hourly paid.
Registered nurses do have similar education and train-
ing, the same state license , and the direct responsibility
for around-the-clock patient care. The education and
training of the other professional employees at the Hos-
pital is also specialized,' and in some cases of longer dura-
tion than that of the registered nurses . These other pro-
fessionals also have state licenses and/or accreditation by
appropriate professional groups. It cannot seriously be
questioned that the nurses and every other classification
of professional employee at the hospital devote their ef-
forts directly toward ' patient care. Staff nurses working
on patient wards comprise most of the registered nurses
and spend more time in direct contact with patients than
do other professionals. 'As a group, they have 24-hour-a-
day responsibility to monitor the treatment and condition
of those patients. There are some 40 other nurses work-
ing regularly 5 days a week in the clinics, in ambulatory
care, and the operating and recovery rooms. Another 24
nurses are in the "float pool" for relief and vacation
work. The differences in the duration and quality of edu-
cation and training received by ' registered nurses and
other professionals, the differences in licensing, the dif-
13 The need for 24 -hour nursing care does not mean nor should it be
read to imply that any nurse works continuously for 24 hours.
12 Some salaried professionals (e.g. pharmacists) may work the day or
evening shifts and be in an on-call status during the night shift (11 p.m. to
7:30 a.m.), and there was uncontradicted testimony that some professional
classifications are represented in the Hospital every day in the week.
MIDDLETOWN HOSPITAL ASSN. 581
ferences in skills, and the differences in duties denion-
strate that each is trained for and functions as a special
link in the patient care chain.
As I read St. Francis. II, it effectively cancels any pref-
erence previously existing in favor of bargaining units re-
stricted to registered nurses, and a separate unit of
nurses, like any other separate bargaining unit can now
only be justified by a showing it meets the "disparity-of-
interests" standard. I am persuaded that standard has not
been met in this case. The nurses and other professionals
all share in the fringe benefits listed by the Union and
detailed above. The disparity in wages earlier discussed
in this decision is no bar to the inclusion of registered
nurses in a bargaining unit with the other professional
employees, and wage increases have been equally meted
out to all employees for many years . All employees are
subject to the same centralized labor relations and per-
sonnel policies and practices , including a uniform disci-
pline and discharge procedure . Even though the nurses,
and other professionals may and usually do perform their
duties in separate departments under separate supervi-
sion, in St. Francis II the Board refused to find sufficient
differences to warrant separate units when there was a
complete separation of supervision , direction, and duties
between maintenance and service employees , and mainte-
nance employees performed their duties independently
even though they were in frequent contact with every
category of health care personnel. This is consistent with
long-established precedent refusing to fmd a bargaining
unit inappropriate because it is comprised of employees
in different departments under different immediate super-
vision. x s
With respect to the diversity of education, training,
skills, licensure, and duties between the nurses and the
other professional employees , these differences are no
more pronounced than those among employees with, dif-
ferent training , skills, and, duties in appropriate all em-
ployee or production and maintenance units commonly
found in industry . Each professional -employee of this
employer possesses special knowledge and skills that are
essential to the performance of duties functionally inte-
grated into the Hospital's patient care system. The trans-
fer of professional employees from one function to an-
other is necessarily limited by the range of each's specific
training, skills, and licensure, but the replacement of a
nurse serving as infection control officer by a nonnurse
with a Bachelor of Science degree in medical technology
who now works with the remaining nurse serving as an
infection control officer; the mixture of three nurses with
two nonnurses in the classification of instructor in educa-
tion and training ; and the transfer of staff nurses to the
utilization review classification illustrates that job inter-
change between nurses and other professionals is not en-
tirely foreclosed because there are certain positions for
which both would be qualified.
An examination of the frequency of contact between
the nurses and other professionals reveals that nurses
18 E.g., Montgomery Ward & Co., 91 NLRB 366 (1950); Benner Tea
Co., 88 NLRB 1409 (1950); Texas-Empire Pipe Line Co., 88 NLRB 631
(1950); Kol-Master Corp., 75 NLRB 1229 (1948); Sharon Wire Co., 115
NLRB 372 (1956).
working, on the same shift have more regular contact
with each other than with other professionals, but Re-
spondent correctly points out that the contact between
nurses and other professionals is as great as that between
the maintenance and service men in St. Francis II, and I
find it is considerably more than that between the boiler
room maintenance employees and other hospital person-
nel in St. Francis IT Despite the lack of significant con-
tact in St. Francis II, the Board was not persuaded that
there was a disparity of interests sufficient to warrant a
separate maintenance unit . Considering that the contact
in this case is greater than that in St Francis II, it fol-
lows' and I ford that the level of contact between regis-
tered nurses and other professional employees of Re-
spondent is not so negligible that a separate unit of regis-
tered nurses is thereby justified.
After considering all the record evidence, I conclude
the Union has not met its burden of proof , with respect
to the unit it seeks, and the differences in wages, hours,
and working conditions between the registered nurses
and the other professional employees, many of which
have been previously found by the Board not to be a suf-
ficient reason for finding a unit inappropriate, do not
meet the "sharper than usual " standard promulgated by
the Board. The record therefore does not demonstrate a
disparity of interests between registered nurses and other
professional employees sufficient to justify separate rep-
resentation.
Having found a unit restricted to registered nurses in-
appropriate for purposes of collective bargaining, I fur-
ther 'find the representation election conducted in Case
9-RC-13185 is a nullity; the objections to election must
therefore be dismissed; and the bargaining order request-
ed must be denied. The Union stated at the January 1980
hearing that it wished to proceed to an election if the
Regional Director or the Board found an n appropriate
unit other than the petitioned for nurses' unit. The Re-
spondent Employer contends either an all-professional
employees unit or an all health care professional employ-
ees unit is appropriate. There are several categories of
employees alleged by, the Employer to be professional
employees whose status has not been litigated. Accord-
ingly, I will recommend Case 9-RC-13186 be severed
and remanded to the Regional Director for further pro-
ceedings. If the parties are unable to stipulate to an ap-
propriate unit, the Regional Director will direct a hear-
ing for the purpose of adducing evidence as to the ap-
propriate unit. The Regional Director will then issue a
supplemental decision and direction of second election in
which he shall determine whether a professional or
healthcare professional unit is appropriate in light of St.
Francis II. In accord with the Board's Order of 27 Sep-
tember 1984, I hereby issue the following amended con-
clusions of law and a recommended Order:
CONCLUSIONS OF LAW
1. Middletown Hospital Association is an employer en-
gaged 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.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Ohio Nurses Association is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees do not constitute a unit
appropriate for collective bargaining:
All registered nurses employed, by the Employer at
its Middletown, Ohio facility, including staff nurses,
infection control nurses, nurse instructors , and utili-
zation review nurses; but excluding all other em-
ployees, all office clerical employees and all guards
and supervisors as defined in the Act.
4. By coercively interrogating employees with respect
to their union activities and those of other employees,
Respondent violated Section 8(a)(1) of the Act.
5. By making statements to employees that strikes are
inevitable , thereby leaving the' impression that Respond-
ent will not bargain in good faith, Respondent violated
Section 8(a)(1) of the Act.
6. By threatening to refuse to bargain if the Union
were selected by the employees as their collective-bar-
gaining representative , Respondent violated Section
8(a)(1).
7. By telling employees the Respondent had attached a
stigma to them because of their union activities, Re-
spondent violated Section 8(a)(1) of the Act.
8. By telling employees the selection of the Union to
represent them would be an exercise in futility, Respond-
ent violated Section 8(a)(1) of the Act.
9. By soliciting employees to vote against the Union
and persuade other employees to do likewise, Respond-
ent violated Section 8(a)(1) of the Act.
10. By warning employees they could be hurt by testi-
fying in a,Board proceeding , Respondent violated Sec-
tion 8(axl) of the Act.
11. By soliciting employees to abandon the Union and
pursue their concerns through an independent union or a
doctor/nurse committee, Respondent violated Section
8(a)(1) of the Act.
12. By telling employees a grant of part-time employee
benefits would be delayed because of a pending represen-
tation election, Respondent violated Section 8(a)(1) of
the Act.
13. By threatening employees with ' loss of -employ-
ment, changes in working conditions, loss of present and
future benefits, and other unspecified retaliation because
of their support of the Union, Respondent violated Sec-
tion 8(a)(1) of the Act.
14. By blaming- the Union for adverse future changes
in working conditions , Respondent violated Section
8(a)(1) of the Act.
15. By soliciting employee complaints and grievances,
and promising to remedy them , Respondent violated
Section 8(a)(1) of the Act.
16. By announcing and implementing an adjustment in
the cost-of-living wage base, part-time employee benefits,
the discontinuance of its low workload days policy, and
the every other weekend off practice in the Intensive
Care Unit and Coronary Care Unit, all in order to
induce its employees to refrain from supporting the
Union, Respondent violated Section 8(a)(1) of the Act.
17. By implementation of its "One-in-Five" and
"Speak Out" programs for the purpose of soliciting,
promising to remedy , and remedying employee com-
plaints and grievances in order to induce them to refrain
from supporting the Union , Respondent violated Section
8(a)(1) of the Act.
18. By adopting and maintaining the Professional Rela-
tions Conference Group as a forum for resolving em-
ployee complaints and grievances and for the purpose of
discouraging support of the Union, Respondent violated
Section 8(a)(1) of the Act.
19. By maintaining and disparately enforcing an un-
lawful solicitation and distribution rule, Respondent vio-
lated Section 8(a)(1) of the Act.
20. The unfair labor practices set forth above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
21. The election conducted on 20 March 1980 in Case
9-RC-13186 is a nullity, and the objections to election
filed by the Union are therefore redundant and over-
ruled.
[Recommended Order and notice omitted from publi-
cation.]