N. T. Enloe Memorial Hospital

National Labor Relations Board - Board Decisions

Jul 14, 1980

250 N.L.R.B. 583 (N.L.R.B. 1980)

N. T. ENLOE MEMORIAl HOSPITAIL
N. T. Enloe Memorial Hospital and California
Nurses' Association. Case 20-CA-13625
July 14, 1980
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND
TRUESDAL.E
On February 2, 1979, Administrative Law Judge
Bernard J. Seff issued the attached Decision in
which he found that California Nurses' Association
(herein called CNA) is a labor union within the
meaning of Section 2(5) of the Act and that Re-
spondent violated Section 8(a)(5) and (1) of the Act
on and after January 23, 1978, by withdrawing rec-
ognition from and refusing to bargain with CNA,
the exclusive bargaining representative of the non-
supervisory registered nurses, and by unilaterally
instituting in April 1978 changes in wages and
fringe benefits of said nurses. On February 28,
1979, Respondent filed exceptions, a brief, and a re-
quest for oral argument. On March 12, 1979, the
General Counsel filed limited cross-exceptions and
a memorandum in lieu of a brief. On April 2, 1979,
Respondent filed an answering brief.
On May 22, 1979, the Board in accordance with
the principles set forth in Sierra Vista Hospital,
Inc.,' remanded the proceeding to Administrative
Law Judge Seff for the limited purpose of receiv-
ing evidence as to whether or not the presence of
supervisors or of third parties as officers on the
CNA board of directors, or in other positions of
authority to speak for or bargain on behalf of
CNA, presents a conflict of interest which disquali-
fies CNA as the collective-bargaining representa-
tive of Respondent's nonsupervisory registered
nurses.2
On January 7, 1980, Administrative Law Judge
Seff issued the attached Supplemental Decision
wherein he found Respondent has not met its
burden of establishing a disqualifying conflict of in-
terest either on January 23, 1978, the date of the
refusal to bargain, or "at the present time." On Jan-
uary 30, 1980, Respondent filed exceptions and a
brief, and on February 18, 1980, the General Coun-
sel filed limited cross-exceptions and a brief.
' 241 NLRB 631 (1979) (Member Truesdale, dissenting in part)
2 For the reasons fully set forth in his partial dissent in Sietrra 'twsu
Hospital. Inc. supra. and further explicated in his concurrence in Rapitr
nospitals. Inc:. d/b/a I'elemrn Bauptir Ibllspaul, 246 NL RB No 25 ( 147q),
Member Truesdale believes the remand fior a further hearing to itlke ei-
dence regarding the Umnion's status as a labor organization was not sar-
ranted Member Truesdale, ho,wever, is in full agreenenlt sith his col-
leagues regarding the other issues insolved herein and joins his col-
leagues in affirming the rulings, findings, and conclusions of the Adminis-
trative Law Judge and in adopting the Adminisr;laiise I.aa Judge', rec-
ommended Order as modified. mupra
250 NLRB No. 78
The Board has considered the record and the at-
tached Decision and Supplemental Decision in
light of the exceptions, cross-exceptions, memoran-
dum, and briefs and has decided to affirm the rul-
ings, findings, and conclusions of the Administra-
tive Law Judge.3
As indicated above, the Administrative Law
Judge correctly concluded that the collective-bar-
gaining process for employees represented by CNA
was controlled by unit employees and that there is
no basis for concluding that there is a conflict of
interest which disqualified CNA as the bargaining
representative. In so holding, the Administrative
Law Judge found, inter alia, that Catherine Dono-
van, a member of CNA's board of directors who
was employed as a part-time shift supervisor by
American River Hospital, was not a supervisor
within the meaning of the Act because there was
no evidence to that effect. However, Respondent
contends that the Administrative Law Judge failed
to rely on an exhibit in the instant case which con-
tained a stipulation reached by the parties in Lodi
Memorial Hospital Association, Inc.,4 that Donovan
was a supervisor as defined in the Act. Although
the parties herein are not bound by said stipulation,
we find that, even if Donovan is arguably a super-
visor as defined in the Act, Respondent has not
presented persuasive evidence to show that Dono-
van was engaged in collective bargaining and con-
sequently there was no clear and present danger of
a conflict of interest interfering with the collective-
bargaining process between CNA and Respond-
ent.5
CONCI.USIONS OF LAW
1. Respondent N. T. Enloe Memorial Hospital is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. California Nurses' Association is a labor orga-
nization within the meaning of Section 2(5) of the
Act and was not disqualified on January 23, 1978,
and thereafter from representing Respondent's em-
ployees in the following appropriate unit:
All registered nurses at the hospital facility in
Chico, California, excluding all nursing direc-
tors, assistant nursing directors, shift supervi-
sors, in-service supervisors, surgery supervi-
sors, obstetrics supervisors, nursery supervi-
sors, specialized care unit supervisors, emer-
gency room supervisors, south wing supervi-
sors, central service supervisors, all other em-
' Respondet t's request for oral arguimeint is herebh denied a;i the
record, cxcepllon%, memorandum, and hrief, adequatels present Ihe isues
aind positions of the parties
24'9 NlRB 786 (198))
See Iodi M.eMmorial Ilow itul 45iX'tti/ion. Inc. upra.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, and guards and supervisors as defined
in the Act.
3. Respondent violated Section 8(a)(5) and (1) of
the Act on and after January 23, 1978, by with-
drawing recognition from and refusing to bargain
with California Nurses' Association, the exclusive
bargaining representative of the employees in the
appropriate unit, and by instituting in April 1978
unilateral changes in the wages and fringe benefits
of said employees.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, N. T. Enloe
Memorial Hospital, Chico, California, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to recognize and bargain collective-
ly, on request, concerning rates of pay, wages,
hours, and other terms and conditions of employ-
ment with California Nurses' Association as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All registered employees at the hospital facili-
ty located in Chico, California, excluding all
nursing directors, assistant nursing directors,
shift supervisors, in-service supervisors, sur-
gery supervisors, obstetrics supervisors, nurs-
ery supervisors, specialized care unit supervi-
sors, emergency room supervisors, south wing
supervisors, mid-wing supervisors, central
service supervisors, all other employees, and
guards and supervisors as defined in the Act.
(b) Unilaterally granting wage increases or fringe
benefits or otherwise altering any terms and condi-
tions of employment with respect to the employees
in the appropriate unit.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds necessary to effectuate the policies
of the Act:
(a) Recognize and, upon request, bargain with
the above-named labor organization as the exclu-
sive representative of all the employees in the ap-
propriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its facility in Chico, California, copies
of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
6 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to recognize or bar-
gain collectively, on request, concerning
wages, hours, and other terms and conditions
of employment with California Nurses' Associ-
ation in the following appropriate unit:
All registered nurses at our hospital facility
located in Chico, California, excluding all
nursing directors, assistant nursing directors,
shift supervisors, in-service supervisors, sur-
gery supervisors, obstetrics supervisors,
nursery supervisors, specialized care unit su-
pervisors, emergency room supervisors,
south wing supervisors, mid wing supervi-
sors, central service supervisors, all other
employees, and guards and supervisors as
defined in the Act.
WE WILL NOT unilaterally grant wage in-
creases or fringe benefits or otherwise change
any terms and conditions of employment.
584
N. T. ENLOE MEMORIAL HOSPITAL
However, nothing in the Board's Order is in-
tended to reduce any increases in wages or im-
provements in fringe benefits which have been
granted to the employes.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed them in
Section 7 of the Act.
WE WILL recognize and, upon request, bar-
gain with California Nurses' Association as the
exclusive representative of all employees in the
appropriate unit and, if an understanding is
reached, embody such understanding in a
signed agreement.
N. T. ENLOE MEMORIAL HOSPITAL
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This
matter was heard by me in Chico, California, on July 20
and 21, 1978. The complaint was issued on March 14,
1978, based on a charge which was filed January 25,
1978.'. The complaint alleges that N. T. Enloe Memorial
Hospital, hereinafter referred to as Respondent or Re-
spondent Hospital, has since on or about December 20,
1977, and continuing to date, failed and refused to recog-
nize and bargain with the California Nurses' Association,
hereinafter referred to as the CNA. Respondent Hospital
denies the allegation of refusing to bargain but did agree
with the jurisdictional facts alleged in the complaint.
All parties were given full opportunity to participate,
to introduce relevant evidence, to argue orally, and to
file briefs. Briefs, which have been carefully considered,
were filed on behalf of the General Counsel and Re-
spondent.
Upon the entire record, and from my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a nonprofit California corporation, main-
tains and operates an acute care medical hospital facility
located in Chico, California. During the past 12 months,
Respondent, in the course and conduct of its operations,
received gross revenues in excess of $250,000.
Also during the past 12 months, Respondent, in the
course and conduct of its operations, purchased and re-
ceived goods and supplies valued in excess of $50,000 di-
rectly from suppliers located outside the State of Califor-
nia.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce and
in business affecting commerce, within the meaning of
Section 2(2), (6), and (7) of the Act.
I All dates in the instant case concern esents which took place in 1978
unless otherwise specified.
II. THE LABOR ORGANIZATION INVOLVED
CNA is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. Background
In 1966, Respondent agreed to a State Conciliation
Service election as a result of which CNA became exclu-
sive bargaining representative for a unit of registered
nurses at Respondent's facility.
The first contract executed between the parties cov-
ered the period from April 1, 1974, to March 31, 1976,
and the bargaining unit which was defined to include:
All registered professional nurses employed by Re-
spondent at its hospital facility located in Chico,
California; excluding all nursing directors, assistant
nursing directors, shift supervisors, in-service super-
visors, surgery supervisors, obstetrics supervisors,
nursery supervisors, specialized care unit supervi-
sors, emergency room supervisors, south wing su-
pervisors, mid wing supervisors, central service su-
pervisors, all other employees, and guards and su-
pervisors as defined in the Act.
The initial contract provided that, as a condition of em-
ployment, bargaining unit employees either join and
maintain membership in CNA or pay an "agency repre-
sentation fee."
Pursuant to the reopening provisions of the 1974-77
agreement, the agreement was reopened for negotiations
in the spring of 1976, after 2 years of its term had ex-
pired. On June 18, 1976, the registered nurses struck Re-
spondent's facility. The strike ended on August 26, 1976.
The CNA and Respondent thereafter executed a new
collective-bargaining agreement for the period April 1,
1976, through March 31, 1978.
The 1976 negotiations which ended the strike resulted
in the deletion of the union-security clause which had
been part of the parties' prior agreement, and made no
provision for the return of registered nurses who had
been replaced during the dispute. In addition, the bar-
gaining unit in the new agreement was modified to ex-
clude statutory supervisors who had been previously
covered by the parties' initial collective-bargaining
agreement.
On December 16, 1977, Respondent filed a timely RM
petition, accompanied by documentation setting forth ob-
jective considerations which formed the basis for the pe-
tition.
Thereafter, both Respondent and the CNA took virtu-
ally simultaneous actions to terminate the 1976-78 agree-
ment.
On December 20, 1977, Respondent's labor attorney
sent a letter to the CNA which put them on notice that
Respondent was terminating the agreement between the
CNA and the Hospital.
On January 19, the Board's agent telephoned counsel
for Respondent and stated that the Regional Director for
585
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 20 had determined that the petition in Case 20-
RM-2203 had raised a question concerning representa-
tion, that a hearing would be held on the petition, and
requested available hearing dates. On the same day,
CNA sent a letter to Respondent's administrator which
set forth its position that the CNA was currently formu-
lating proposals of the upcoming negotiation of the col-
lective-bargaining agreement with the Hospital. CNA
proposed that the first negotiating session take place in
Chico on February 15 or February 22. Respondent re-
ceived, on January 20, a notification from the NLRB
confirming that a hearing on the RM petition had been
scheduled for January 27.
On January 25, 2 days before the scheduled represen-
tation hearing on the RM petition and some 21 days
prior to the first negotiating date proposed by it, the
CNA filed the charge in the instant matter, alleging that
Respondent had failed and refused to negotiate in good
faith. The next day, January 26, the NLRB Regional Di-
rector sent Respondent's counsel a telegram stating that
the hearing on the RM petition had been "postponed in-
definitely pending resolution of a blocking charge in
Case 20-CA-13625."
On March 31, the 1976-78 collective-bargaining agree-
ment between CNA and Respondent expired by its
terms. Beginning in November 1977 and continuing until
March 1978, representatives of Respondent and CNA ex-
changed correspondence concerning certain grievances
filed by CNA under the contract. Respondent states in
its brief that it did not refuse to meet and discuss the al-
leged grievances.
In the first week of April 1978, consistent with its past
practice, Respondent implemented wage and benefit
changes for hospital personnel, including its registered
nurses.
Thereafter, on July 12, CNA amended its original
charge to set forth the additional claim that Respondent
had violated the Act by instituting unilateral changes in
wages and benefits.
At the hearing on July 20, the complaint was amended
to incorporate these additional allegations and to change
the date upon which Respondent allegedly refused to
bargain with CNA from December 20, 1977, to January
23, 1978.
B. Respondent Contends That It Entertained a Good-
Faith Doubt as to CNA's Majority Status
The hospital administrator, Sweeney, testified that he
was kept constantly informed of the bargaining unit em-
ployees' sentiments concerning representation by CNA.
The information came from numerous sources, including
Personnel Director Ellen Edlefsen, Director of Nurses
Albert Sharpe, the nurse supervisors and the staff RNs
themselves. Many of the reports received by Sweeney
were provided by supervisors. In addition to Sharp and
Edlefsen, Supervisors Meinberg, Ahlemeyer and Marion
testified as to information which they had received or
overheard to the effect that many of the employees did
not desire to be represented by the Union.
Respondent's brief summarizes the following facts
which supported his conclusion that the CNA lacked
majority status:
1. Of the approximately 104 RNs employed at the
time of the strike called by CNA in summer of
1976, approximately 31 refused to strike. Of the 73
who did strike, approximately 26 resigned. Twelve
returned before the strike ended. Approximately 22
strike replacements were hired. Thus, at the end of
the strike, of the approximately 100 RNs in Re-
spondent's employ, only 35 were RNs who support-
ed CNA through the strike.
2. During the strike, a number or RNs explicitly
communicated strong dissatisfaction with CNA.
Nurse Selberg reported that many of the RNs were
upset and felt that CNA had been lying to them.
She also suggested that the Hospital "throw [CNA]
out and keep them out." Nurse Brunold said she
was "sick and tired of the women's lib running
CNA." Nurse Nadeau said she was ashamed of the
strike and, as a result, was planning to leave the
area. Nurse Delmatier told Administrator Sweeney
that, "CNA is misleading the nurses and the nurses
don't believe the CNA." She further stated to Alma
Meinberg, at that time a fellow staff RN, that the
RNs "really could get along better without CNA."
Nurse Enns stated that she was not happy with
CNA representation. A number of other nurses, in-
cluding Barden, Benzie, Davis, Janney, Marilyn
Johnson, Morton, and Von Seggern, unequivocally
stated that they no longer wanted to be represented
by CNA.
Of the new replacement RNs, many questioned the
hospital administration as to whether or not they would
be compelled to join the CNA.
After the strike, in view of the fact that union support
had been significantly eroded, CNA made concessions in
contract negotiations, including acquiescence in the with-
drawal of union security.
During the months following the strike, at least 14
RNs indicated that they did not want to be members of
CNA. At least 42 RNs stated they did not want to be
represented by or involved with CNA. A number of
other employees expressed dissatisfaction with CNA.
There was additional evidence adduced during the
hearing that other RNs also expressed the opinion that
CNA lacked majority support. In December, Ahlemeyer,
supervisor of the obstetrics department, informed Direc-
tor of Nurses Sharpe that approximately eight of the
RNs in her department did want CNA representation. At
about the same time, Surgery Department Supervisor Al-
exandra Marion informed Sharpe that of the seven RNs
in her department, six did not want to be represented by
CNA. In January, Staff Nurse Mary Larson told Day
Shift Supervisor Alma Meinberg that "most of the nurses
really did not want to be represented by CNA."
Respondent's brief itemizes the names of 31 RNs who
stated they did not want to be represented by the CNA.
Four RNs stated they did not want to join the CNA. Six
of the nurses expressed dissatisfaction with CNA and its
leadership.
Based on the information reported supra, Administra-
tor Sweeney and Personnel Director Edlefsen concluded
that the majority of the RNs in the bargaining unit were
586
N. T ENLOE MEMORIAL HOSPITAL
opposed to CNA. Some of the employees, while stating
they no longer wanted to be represented by CNA, said
they did want some form of a contract. A staff member
in the emergency room told her supervisor, Mitchell,
that her estimation, based on her own survey, indicated
that not more than 10 to 15 nurses in the Hospital might
vote for CNA. The record also shows that Jane Wood-
ley, an RN charge nurse in the obstetrics department,
told Ahlemeyer that she did not want to be represented
by CNA. In the middle of February, nurse Pyle reported
to Personnel Director Edlefsen that she had attended a
CNA meeting the night before and there were only
seven people present. The unit at that time consisted of
approximately 94 RNs.
Respondent takes the position that clear Board prece-
dent establishes that any failure to recognize or bargain
with CNA on or after January 23, 1978, was privileged
by the Regional Director's finding that the petition in
Case 20-RM-2203 raised the question concerning repre-
sentation. Respondent's brief states that an employer, ac-
cording to the General Counsel, is required to recognize
and bargain with an incumbent union after a Regional
finding that such employer has filed a timely RM peti-
tion which is supported by objective considerations suffi-
cient to warrant the petition's processing. It relies on the
cases of Telautograph Corporation, 199 NLRB 892 (1972),
and George Braun Packing Co., 210 NLRB 1028 (1974).
Respondent quotes from the Telautograph case that the
Board stated:
In Shea Chemical Corporation, 121 NLRB 1027, the
Board established the rule that when a real question
concerning representation has been raised by the
filing of a petition by a rival union that "an employ-
er may not go so far as to bargain collectively with in-
cumbent (or any other) union until the question con-
cerning representation has been settled by the Board."
The same rule should be applied where a real ques-
tion concerning representation has been raised by
the timely filing of a decertification petition. As in
the case of a petition filed by a rival union, the in-
cumbent union may still continue to administer its
contract and process grievances, and the rule does
not apply in situations where, because of contract
bar, certification year, inadequate showing of inter-
est, or any other established reason, the decertifica-
tion petition does not raise a real representation
question.
We wish to clarify this matter, since a clear state-
ment of that principle may obviate the necessity for
lengthy delays in the processing of properly supported
decertification petitions under like circumstances in the
future. Such processing need not be delayed by an
8(a)(5) charge, since such charge could be promptly
dismissed as nonmeritorious unless, of course, the
charge contains allegations that the respondent has
committed some act (other than its mere refusal to
bargain) which may be a proper basis for finding a vio-
lation of our Act. 199 NLRB at 892. [Emphasis sup-
plied.]
In George Braun Packing Co., supra, the Board stated a
similar rule with respect to RM petitions. It held that
where a proper RM petition has been filed (i.e., one
which is supported by sufficient objective consider-
ations), no violation based on a subsequent refusal to bar-
gain may be found. 210 NLRB at 1028, fn. 2.
Note, too, in George Braun Packing the Board states as
follows:
Our colleagues find that the evidence set forth in
the decision of the Administrative Law Judge is suf-
ficient to meet the standards established in United
States Gypsum Company, 157 NLRB 652, with re-
spect to processing RM petitions and conclude that
since a proper RM petition was filed herein, no vio-
lation based upon a refusal to bargain may be
found.... [210 NLRB at 1028, dissent of Chair-
man Fanning and Member Jenkins.]
The General Counsel, in his brief, states that:
Respondent may argue that the Board's decision
in George Braun Packing Co., 210 NLRB 1028, es-
tablishes that the issuance of a notice or hearing in a
representation case bars a determination based on
the record evidence in an unfair labor practice case
whether an employer in fact had objective reasons
for doubting the union's majority status. In the
Braun case, supra, a complaint alleging a refusal to
bargain was issued against the employer, although a
notice of hearing had previously been issued in the
representation case involving the same parties. At
the hearing in Braun, the employer presented evi-
dence designed to show that it had objective
grounds for doubting the union's majority. After
full litigation of the issue concerning the validity of
the employer's asserted objective grounds, the
Board concluded that there was in fact sufficient
evidence to warrant the processing of the represen-
tation petition and that no violation of the Act had
occurred. It is significant that the Board reached its
decision with a fully litigated record before it. If the
issuance of a notice of hearing in the representation
case had barred full litigation or the sufficiency of
Respondent's grounds for doubting the union's ma-
jority, a hearing would have been unnecessary and
the case could have been disposed of pursuant to
summary judgment procedures. The Board declined
to follow such a procedure.
In view of the Board's decisions in the Braun
case, supra, and the Burns case, supra, Respondent
could not properly conclude that because a notice
of hearing had been issued in Case 20-RM-2203 it
could refuse to meet with the Association for the
purpose of negotiating a new contract. By refusing
to meet with the Association, Respondent assumed
the risk that it would be found guilty of a refusal to
bargain if it could not prove in an unfair labor prac-
tice proceeding that it had objective reasons for
doubting the Association's majority status. Respond-
ent's duty to bargain was not suspended by the
pendency of the representation petition. ...
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It would seem under the facts in the instant case that,
since I find that Respondent did not have reasonable
grounds for doubting the Union's majority, the issuance
of the notice of hearing and its cancellation does not
result in the elimination of the unfair labor practice case.
It would further seem that the sine qua non that would
be required to support Respondent's condition has not
been met in the instant case because of my finding that
Respondent did not have reasonable grounds on an ob-
jective basis for doubting the Union's majority.
It is not disputed that subsequent to the expiration of
the contract Respondent implemented various changes in
the working conditions of the unit employees. The Asso-
ciation was never notified by Respondent of the pro-
posed changes and was not afforded the opportunity to
bargain concerning them. When these changes were put
into effect, the Association enjoyed a presumption of ma-
jority status. As shown above, Respondent did not pres-
ent evidence sufficient to rebut the presumption of ma-
jority status. Respondent's unilateral changes in working
conditions violated Section 8(a)(5).
In the case of Sahara-Tahoe Corporation d/b/a Sahara-
Tahoe Hotel, 229 NLRB 1094 (1977), a clear statement of
the law appears which follows:
The law is well settled that the existence of a
prior contract, lawful on its face, raises a dual pre-
sumption of majority-a presumption that the
Union was the majority representative at the time
the contract was executed, and a presumption that
its majority continued at least through the life of
the contract. Following the expiration of the con-
tract, the presumption continues and, though rebut-
table, the burden of rebutting it rests on the party
who would do so.
The record contains statements by employees showing
discontent with the Union. It is clear that many workers
resented the amount of dues charged by the CNA. Fur-
thermore, reports of employee discontent suffer from the
fact that its probative weight is speculative and conjec-
tural. Many an employee complains of his job without
ever contemplating quitting, and remarks to management
may be influenced by a desire to curry the employer's
favor. The absence of more concrete evidence of em-
ployee discontent, particularly the filing of a decertifica-
tion petition, is actually more persuasive. Respondent's
brief states that as of January 23, 1978, 41 employees, all
of whom are named in the brief, stated they did not want
to be represented by or become involved with the CNA.
At the time these expressions of discontent with CNA
were made known to Respondent there were approxi-
mately 100 employees in the appropriate bargaining unit.
An appropriate unit consists of:
All registered nurses employed by Respondent at its
hospital facility located in Chico, California; exclud-
ing all nursing directors, assistant nursing directors,
shift supervisors, in-service supervisors, surgery su-
pervisors, obstetrics supervisors, nursery supervi-
sors, specialized care unit supervisors, emergency
room supervisors, south wing supervisors, mid wing
supervisors, central service supervisors, all other
employees, and guards and supervisors as defined in
the Act.
Concluding Findings and Analysis
The issue before me is whether or not Respondent was
legally justified in withdrawing recognition from the
Union which was the certified and established bargaining
representative for Respondent's employees. When called
upon to resolve such an issue, the Board has consistently
applied the test set forth in Terrell Machine Company 2 in
formulating its conclusion.3
In Terrell Machine Company, the Board explained the
test as follows:
It is well settled that a certified union, upon expi-
ration of the first year following its certification,
enjoys a rebuttable presumption that its majority
representative status continues. This presumption is
designed to promote stability in collective-bargain-
ing relationships, without impairing the free choice
of employees. Accordingly, once the presumption is
shown to be operative, a prima facie case is estab-
lished that an employer is obligated to bargain and
that its refusal to do so would be unlawful. The
prima facie case may be rebutted if the employer af-
firmatively establishes either (1) that at the time of
the refusal the union in fact no longer enjoyed ma-
jority representative status, or (2) that the employ-
er's refusal was predicated on a good-faith and rea-
sonably grounded doubt of the union's continued
majority status. As to the second of these, i.e.,
"good-faith doubt," two prerequisites for sustaining
the defense are that the asserted doubt must be
based on objective considerations and it must not
have been advanced for the purpose of gaining time
in which to undermine the union. [173 NLRB at
1480-81.] [This second point means, in effect, the
assertion of doubt must be raised "in a context free
of unfair labor practices."]
It is also well settled that the existence of a prior con-
tract, lawful on its face, raises a dual presumption of ma-
jority-a conclusive presumption that the Union was the
majority representative at the time the contract was
signed and a rebuttable presumption thereafter. In the
latter case the rebuttable presumption carries with it the
burden of proof by the party who asserts it.
CONCLUSIONS OF LAW
1. N. T. Enloe Memorial Hospital is, and at all times
material herein has been, engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. California Nurses' Association is a labor union
within the meaning of Section 2(5) of the Act.
2 173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970).
3 This test was most recently approved by the Board in Bartenders.
Hotel. Motel and Restaurant Employers Bargaining Association of Pocatello.
Idaho. and its Employer-Members, 213 NLRB 651 (1974); and Eastern
Washington Distributing Company. Inc., 216 NLRB 1149 (1975).
588
N. T. ENLOE MEMORIAL HOSPITAL
3. The unfair labor practices found to have been com-
mitted by Respondent affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Respondent shall be ordered to cease and desist from
its unlawful conduct.
In order to remedy the unfair labor practices enumer-
ated supra, it shall be recommended that the Respondent
be required to bargain on request with the Charging
Union and embody any resulting agreements in a signed
contract.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER4
The Respondent, N. T. Enloe Memorial Hospital,
Chico, California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain, upon request, with the repre-
sentative of the employees in the following unit:
All registered nurses employed by Respondent at its
hospital facility located in Chico, California; exclud-
ing all nursing directors, assistant nursing directors,
shift supervisors, in-service supervisors, surgery su-
pervisors, obstetrics supervisors, nursery supervi-
sors, specialized care unit supervisors, emergency
room supervisors, south wing supervisors, mid wing
supervisors, central service supervisors, all other
employees, and guards and supervisors as defined in
the Act.
(b) Granting increases in wages and/or fringe benefits
without first bargaining with the Union. Nothing in this
Order is intended to decrease any increase in wages or
improvements in fringe benefits which have been granted
to employees.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning the
terms and conditions of employment or the employees in
the appropriate units, and, if any agreement is reached,
embody such agreement in a signed document.
(b) Post at its offices located in Chico, California,
copies of the attached notice marked "Appendix." s
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and shall
4 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
5 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees customarily are posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Direction for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the Nation-
al Labor Relations Board found that we have violated
the National Labor Relations Act, as amended, and has
ordered us to post this notice.
WE WILL NOT refuse to bargain, upon request,
with California Nurses' Association on behalf of the
employees in the following appropriate unit:
All registered nurses employed by Respondent at
its hospital facility located in Chico, California;
excluding all nursing directors, assistant nursing
directors, shift supervisors, in-service supervisors,
surgery supervisors, obstetrics supervisors, nurs-
ery supervisors, specialized care unit supervisors,
emergency room supervisors, south wing supervi-
sors, mid wing supervisors, central service super-
visors, all other employees, and guards and super-
visors as defined in the Act.
WE WILL grant increases in wages and/or fringe
benefits without first bargaining with the Union.
However, nothing in this Order is intended to de-
crease any increases in wages or improvements in
fringe benefits which have been granted to the em-
ployees.
N. T. ENLOE MEMORIAL HOSPITAL
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This
case was initially heard by me in Chico, California, on
July 20 and 21, 1978, at which time the record was
closed. The original Decision and recommended Order
was issued by me on February 2, 1979. I found that Re-
spondent, N. T. Enloe Memorial Hospital, had violated
Section 8(a)(5) and (1) of the Act by refusing to bargain
in good faith with the California Nurses' Association,
hereinafter referred to as CNA.
589
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Background
The General Counsel, in his Supplemental Memoran-
dum dated December 14, 1979, includes a concise state-
ment of the history of this case on remand.
On May 22, 1979, the Board issued an Order remand-
ing the instant case for hearing on the issue whether the
California Nurses' Association, hereinafter called the
CNA, is disqualified from representing, for purposes of
collective bargaining, the nonsupervisory registered
nurses of N. T. Enloe Memorial Hospital, hereinafter
called Respondent, by virtue of a conflict of interest aris-
ing from the participation of supervisors in the activities
of the Association. Pursuant to the remand order on Oc-
tober 4 and 10, 1979, a hearing was held and the record
was closed. The parties thereafter submitted briefs to me.
On November 5, 1979, the Board granted Respondent's
interim appeal which asserted that the status of the CNA
on January 23, 1978, the date of the refusal to bargain
alleged in the complaint, was material to the resolution
of the issues presented in the instant case. The Board di-
rected that Respondent be permitted to present evidence
concerning status of CNA on that date. On November
27, 1979, a hearing was held for the purpose specified in
the Board's Order. The issues presented to me are
whether the Association was disqualified on January 23,
1978, from representing the unit employees of Respond-
ent by virtue of a conflict of interest. The criteria for
making these determinations are found in Sierra Vista Hos-
pital, Inc., 241 NLRB 631(1979) and Baptist Hospitals. Inc.,
d/b/a Western Baptist Hospital, 246 NLRB No. 25 (1979).
The remand was ordered for the limited purpose of re-
ceiving evidence to determine whether or not the pres-
ence of supervisors of the Employer or of third parties
who are principal competitors with Respondent, as offi-
cers on the board of directors of, or in the positions of
authority to speak for or bargain on behalf of the CNA,
disqualifies the Association as the collective-bargaining
representative of Respondent's nonsupervisory nurses,
and for the additional purpose of issuing a Supplemental
Decision concerning such evidence.
It is not disputed that Respondent did refuse to bar-
gain with CNA on January 23, 1978. In order for Re-
spondent to prevail, it has the heavy burden of establish-
ing by adducing probative evidence which demonstrates
that supervisory participation in a labor organization's in-
ternal affairs presents a clear and present danger of inter-
ference with the bargaining process. If this is so, it
would result in compromising the integrity of the CNA
for bargaining for the employees in the appropriate unit.
Discussion
It cannot be too strongly emphasized that in order for
Respondent to establish a disqualifying conflict of inter-
est it has a heavy burden to sustain its position as is set
forth in the Sierra Vista decision.
The Board states therein as follows:
There is a strong public policy favoring the free
choice of a bargaining agent by employees. The
choice is not likely to be frustrated. There is a con-
siderable burden on a nonconsenting employer in
such a situation as this, to come forward with a
showing that the danger of a conflict of interest in-
terfering with the collective-bargaining process is
clear and present. [241 NLRB 631.]
The formulation of the burden on the Employer is but-
tressed by the Board's reliance on the decision of the
First Circuit in the case of N.L.R.B. v. David Buttrick
Company, 399 F.2d 505, 507 (1968). There can be no
question with regard to a conflict-of-interest defense that
the Board agrees with the Court of Appeals for the First
Circuit's formulation of a respondent's burden of show-
ing a "clear and present danger," and that the Board will
strike that defense when a respondent fails to carry its
burden.
Respondent contends in argument at the hearings and
in its briefs that the burden of proof is on the General
Counsel in a C case and not on Respondent. However, it
is clear that Respondent, by asserting an affirmative de-
fense on the conflict-of-interest issue, has the burden of
going forward with proof and this burden is clearly on
Respondent. To underscore its position, the Board fur-
ther stated in Sierra Vista, "[i]f Respondent (or any other
employer who raises a similar issue) is unable to adduce
probative evidence substantiating a claim that supervi-
sory participation in the affairs of the union presents a
clear and present danger of interfering with the bargain-
ing process, its contention will be summarily found lack-
ing in merit."
The bylaws of the Association appear in the record as
Respondent's Exhibit 25. The CNA is a constituent asso-
ciation of the American Nurses' Association. One of the
major purposes of the CNA is described as being the
function, inter alia, of promoting and protecting the eco-
nomic and general welfare of registered nurses. In order
to effectuate this purpose, the governing body of the
CNA is the board of directors. There are 15 members of
this board. At the hearing which took place on Novem-
ber 27, 1979, evidence was proffered as to the job classi-
fications of 10 of these members who were members of
the board of directors in January 1978.1 The record does
not contain any evidence which shows the job classifica-
tions of the remaining five members of the Association's
board of directors in January 1978. One of the members
of the board, Catherine Donovan, who worked at
American River Hospital, performed some part-time al-
legedly supervisory functions. There is no evidence in
the record to show what authority she exercised as a
part-time shift supervisor. It should be pointed out that
there is also no evidence in the record showing that any
of the other members of the board performed any super-
visory functions. It is to be noted that none of the mem-
bers of the board of directors in January 1978, were em-
ployed at Respondent's facility.
It is also to be specifically noted that the bylaws state
unequivocally that the members of the commission must
be statutory employees and cannot be supervisors within
the meaning of the Act. (Resp. Exh. 25.) The bylaws
Toni 'Propoltnik Don)llna Ver Stceg, Wilma Talhl, Helell r;ajkovich,
Marge Henders,on. Ca;lhcrine I)onnlan. Shirley Smith. l.orrane Ilult-
qtusl, ()l'ia L.anollnc . and J Do)rnthy FrankIhn
590
N. T. ENI.()OF MEMORIAL HOSPITAlI
provide for the creation of an economic and general wel-
fare commission. This body is responsible for the Associ-
ation's policy with respect to collective-bargaining mat-
ters. The bylaws further provide for the creation of re-
gional associations. The name of the regional association,
which is responsible for Chico, California, is the Superi-
or California Nurses' Association, region 8, which is the
location where Respondent's facility is to be found. It
should be further noted that the record does not show
the degree of control exercised by the board of directors
of the association, the economic and general welfare
commission, and the board of directors of region 8 over
the subject matter of collective bargaining with individu-
al employers.
Respondent seeks to make much of the fact that a
number of supervisors are members of CNA. This argu-
ment has no merit because the Board has held that, "The
mere presence of supervisors in a labor organization is
virtually irrelevant to determining status under Section
2(5) of the Act. Indeed, we have, with court approval,
uniformly construed Section 2(5) to reach all associations
which exist for the purpose, in whole or part, of collec-
tive bargaining and which admit employees to member-
ship, despite the fact that supervisors, in addition to em-
ployees, and even in substantial numbers, may likewise
be admitted." 2
The matter that is crucial to the case at bar is whether
or not CNA is disqualified from representing registered
nurses because a member of CNA, who plays an active
and influential role in collective bargaining, is employed
as a supervisor either by the Employer whose nurses
CNA seeks to represent, or by another employer with
whom the primary employer has a competitive relation-
ship.
There is no showing that Respondent employs a
member of CNA as a supervisor who plays any role in
collective bargaining. There is also no showing that a
member of CNA is employed by a competing employer
as a supervisor, and that such member participates in col-
lective bargaining. Nor can it be said that there is any
evidence in the record from which an inference can rea-
sonably be drawn that either of the above-named circum-
stances existed. Attention is again called to the fact that
Respondent has a heavy burden of going forward with
proof to demonstrate with probative evidence that either
of these contentions are met. The economic and general
welfare committee of region 8 is the collective-bargain-
ing arm of CNA. Respondent argues that the economic
and general welfare committee of region 8 and the EGW
commission are subject to the directives of the house of
delegates and the CNA Board of Directors. The latter is
also dependeot upon the House of Delegates for all its
operating funds. From these facts Respondent contends
that the failure to release the EGW Commission from
the "grasp" of the house of delegates and CNA board is
significant because membership in those bodies is open to
all CNA members and both count statutory supervisors
among their members. It appears to me that these con-
tentions of Respondent are highly speculative and in my
opinion, therefore, lacking in merit. What is more signifi-
2 Sierra Vista Hospital. Inc. supra
cant is the fact that none of the members of the board of
directors in January 1978, were employed at Respond-
ent's facility. Respondent calls attention to the fact that
since 1977 the director from region 8 has been Catherine
Donovan, who allegedly is a supervisor as defined in the
Act.
Donovan is employed by American River Hospital
which is located in Carmichael, California. Carmichael is
located 100 miles from Chico, California, where Re-
spondent's facility is located. The General Counsel, in his
memorandum of December 14, 1979, points out that
during the period from January 1978 to October 1979
none of the patients admitted to Respondent's facility
were residents of Carmichael, California. During this
period most of Respondent's patients were residents of
Chico, other locations in Butte County, and the city of
Orland, which is located 20 miles from Chico. For exam-
ple, during January 1978 approximately 80 percent of
Respondent's admissions came from these locations. Fur-
ther, a very small percentage of Respondent's patients
came from areas in excess of 50 miles from Chico.
During the first 6 months of 1978, only 14 patients who
lived in the communities of Elk Creek, Stonyford, and
Williams were admitted to Respondent's hospital.
Respondent in its brief describes American River Hos-
pital as a principal competing hospital. There is little
convincing evidence in the record that American River
Hospital and Respondent are in fact in direct competition
with each other. It is also true that from January 1978 to
October 1979, according to the testimony of Respond-
ent's director of the hospital, a Mr. Sweeney, Respond-
ent had no patients from Carmichael. The record also is
barren of any information or any facts which show that
Donovan participated in collective bargaining for her
hospital, American River Hospital, and there is nothing
to indicate that she played a role in collective bargaining
as a member of the Board of Directors of CNA, or in
any other capacity. It is certainly clear that based on the
record, Respondent has not carried the burden of going
forward with evidence to show that Donovan was ac-
tively engaged or engaged in any way in collective bar-
gaining and therefore the reliance placed by Respondent
on the fact that Donovan, although a member of the
board of directors of CNA and located in region 8,
which is the same region where Respondent's facility is
located, is in a situation which is encompassed in the
Sierra Vista case criteria.
The General Counsel, in his memorandum of Decem-
ber 14, calls attention to the fact that no evidence was
introduced at the hearing of November 27 which sup-
ports the position of Respondent. The record evidence
introduced at this hearing shows that union employees
represented by the Association have complete autonomy
in formulating collective-bargaining proposals and in de-
ciding whether to accept particular contract provisions.
This autonomy has existed from January 1978 to the
present time. The General Counsel also points out that
while the Association's economic and general welfare
commission formulates the general program of the Asso-
ciation with respect to collective bargaining, the posi-
tions adopted by the commission are not binding on the
591
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit employees during collective bargaining with their
employers.
While Catherine Donovan is described as a supervisor
by Respondent and is called a shift supervisor according
to an exhibit offered by the Charging Party, it must be
stated that the burden of showing that a disqualifying
conflict of interest with respect to the Association exist-
ed on January 23, 1978, rests on Respondent, who has a
heavy burden in this regard. It would appear clear that
the evidence submitted by Respondent is not sufficient to
meet its burden of establishing a clear and present danger
of a conflict of interest interfering with the collective-
bargaining process. Attention is again called to the fact
that while supervisors are members of the Association
and constitute a minority of its board of directors and
that of region 8, no supervisor of the Respondent is a
member of one of the governing bodies of the Associ-
ation of region 8. Nor has any evidence been adduced to
show that any supervisor of a competitor of Respondent
holds a position of authority in the Association. Supervi-
sors are by definition excluded from membership on the
economic and general welfare commission which is re-
sponsible for formulating the Association's policy on col-
lective bargaining. Donovan was the only member who
had a supervisory job title. The performance of the
duties of a part-time shift supervisor by Donovan, at
American River Hospital, does not establish that she was
a supervisor within the meaning of Section 2(11) of the
Act in January 1978 since there is no record evidence es-
tablishing what authority she exercised as a shift supervi-
sor. Donovan did not become a supervisor because she
had that title. At least this is so within the meaning of
the Act. The fact of the matter is that a finding of super-
visory status can only be based on evidence showing that
an individual exercises one of the types of supervisory
authority enumerated in Section 2(11) of the Act. It has
been shown that the collective-bargaining process for
employees represented by the Association was controlled
by the unit employees, who acted in an autonomous
manner and there is no basis for therefore concluding
that the composition of the Board of Directors could
create a disqualifying conflict of interest.
Conclusion
Based on the foregoing, I conclude and find that Re-
spondent has not established any justification for its re-
fusal to bargain with the Union. Respondent has not met
its burden of establishing a disqualifying conflict of inter-
est either on January 23, 1978, the date of the alleged re-
fusal to bargain, or at the present time for the reasons set
forth supra. For all of the reasons elucidated above, my
decision of February 2, 1979, that Respondent violated
Section 8(a)(5) and (1) of the Act, should be reaffirmed.
592