Perth Amboy General Hospital And Old Bridge Regional Hospital

National Labor Relations Board - Board Decisions

Mar 31, 1986

279 N.L.R.B. 52 (N.L.R.B. 1986)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raritan Bay Medical Center a/k/a Perth Amboy
General Hospital and Old Bridge Regional Hos-
pital and District 65, United Automobile, Aero-
space & Agricultural Implement Workers of
America, AFL-CIO. Cases 22-CA-13612, 22-
RC-9300, and 22-RC-9301
31 March 1986
DECISION, ORDER, AND
CERTIFICATIONS OF RESULTS OF
ELECTIONS
BY MEMBERS DENNIS , BABSON, AND
STEPHENS
On 12 September 1985 Administrative Law
Judge James F. Morton issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, i and
i The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In sec II,F,2 and fn 2 of his decision , the judge incorrectly reported
the name of and citation to Jamaica Towing, 236 NLRB 1700 ( 1978), affd
and remanded on other grounds 602 F 2d 1100 (2d Cir 1979)
In sec II,F,1 of his decision , the judge incorrectly reported the citation
to Dutch Boy, Inc, 262 NLRB 4 (1982), enfd sub nom ARTRA Group,
Inc v NLRB, 730 F 2d 586 (10th Cir 1984) We correct these errors
2 We agree with the judge that the Respondent 's restriction on the dis-
tribution of union literature was unlawful We do so, however, because
Administrative Coordinator Connor told employee Walker that she was
not permitted to distribute union literature between the time she punched
in and the beginning of her shift We find that in the Respondent's facili-
ty such time is nonworking time and under the Respondent's no-distnbu-
tion rule distribution on nonworking time is not prohibited Thus, the re-
striction on such distribution is unlawful
Member Babson, in finding that Connor's instruction to Walker not to
distribute union literature violated Sec 8(a)(1) of the Act, relies on the
fact that Walker's activity occurred on nonworking time in a nonworking
area and that the Respondent failed to demonstrate the necessity for its
prohibition of such activity See Stoddard-Quirk Mfg Co, 138 NLRB 615
(1962)
We also agree with the judge that the Respondent ' s president violated
Sec 8(a)(1) of the Act by calling a union activist an agitator and trouble-
maker in the presence of other employees , but only for the following rea-
sons The judge found that during an informal discussion session follow-
ing a meeting the Respondent held with employees to discuss the Union,
employee Lopez was discussing decertification with a coworker The Re-
spondent 's president , McLaughlin , began to walk toward Lopez and told
the employees to go back to work When Lopez asked McLaughlin if she
could finish her conversation , McLaughlin became angry and called her
an agitator and a troublemaker who did not belong at the meeting Lopez
testified that she thought McLaughlin was going to hit her She then left
the meeting
McLaughlin 's comment equates union activity with causing trouble and
indicated that employees who engage in union activities are out of favor
with the Respondent The statement emanated from an authoritative
source, the Respondent 's president , and was not an isolated remark
conclusions as modified2 and to adopt the recom-
mended Order as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Raritan Bay Medical Center a/k/a Perth
Amboy General Hospital and Old Bridge Regional
Hospital, Perth Amboy and Old Bridge, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
Insert the following as paragraph 1(f) and relet-
ter the subsequent paragraph.
"(f) Unlawfully restricting the distribution of
union literature."
CERTIFICATION OF RESULTS OF
ELECTION IN CASE 22-RC-9300
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for District 65, United
Automobile, Aerospace & Agricultural Implement
Workers of America, AFL-CIO and that it is not
the exclusive representative of the employees in the
bargaining unit in the above-designated case.
CERTIFICATION OF RESULTS OF
ELECTION IN CASE 22-RC-9301
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for District 65, United
Automobile , Aerospace & Agricultural Implement
Workers of America, AFL-CIO and that it is not
the exclusive representative of the employees in the
bargaining unit in the above-designated case.
Rather, it occurred during a campaign in which other unfair labor prac-
tices were committed Under all the circumstances , we find the comment
coercive and violative of Sec 8(a)(1) of the Act
s The Respondent 's motion to sever Cases 22-RC-9300 and 22-RC-
9301 from Case 22-CA- 13612 is denied Absent exceptions , we adopt pro
forma the judge's recommendation that certifications of results of elec-
tions issue in Cases 22-RC-9300 and 22-RC-9301
Mitchell A. Schley, Esq., for the General Counsel.
Peter A. Somers, Esq. (Lindabury, McCormick & Esta-
brook), of Westfield, New Jersey, for the Respondent.
Ellen F. Moss, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASES
JAMES F . MORTON , Administrative Law Judge. Elec-
tions were conducted in Cases 22-RC-9300 and 22-RC-
9301. District 65, United Automobile , Aerospace & Agri-
cultural Implement Workers of America , AFL-CIO (the
Union) did not receive a majority of the votes cast in
either election and it filed objections . Certain of those
279 NLRB No. 10
PERTH AMBOY HOSPITAL
objections[ were identical with the allegations of unfair
labor practices set out in the complaint in Case 22-CA-
13612. The issues in the representation cases are whether
there is merit to any of the allegations of unlawful con-
duct and, if so, whether the results of the elections
should be set aside and new elections conducted. The al-
legations of unlawful conduct are that Raritan Bay Medi-
cal Center a/k/a Perth Amboy General Hopsital and, ad-
ditionally , a/k/a Old Bridge Regional Hospital (Re-
spondent):
(a) by its administrative coordinator, Kathryn Con-
nor, unlawfully restricted the distribution of the
Union's campaign literature in mid-October, 1984.
(b) by one of its unit coordinators, Debra Mahoney,
warned employees in mid-November, 1984 that
they would no longer get merit raises if the Union
was selected as their collective bargaining repre-
sentative.
(c) by its president, Keith McLaughlin, (1) informed
employees on about 22 November, 1984 that Re-
spondent would not bargain in good faith with the
Union if the employees selected the Union as their
representative and (2) made disparaging remarks
to employees because they supported the Union.
(d) by its chief medical technologist , Judith Gold-
berg, (1) in mid-October, 1984 unlawfully interro-
gated an employee as to her support for the
Union, impliedly warned her that she would suffer
because of that support and solicited grievances to
induce her to abandon her support for the Union
and (2) on about 29 November 1984 threatened
employees with stricter enforcement of work rules
to discourage support for the Union.
I. JURISDICTION
As established in the pleadings, Respondent is a New
Jersey corporation engaged in providing health care
services. Its operations annually meet the Board's juris-
dictional standard for employers providing such services.
The pleadings further establish that the Union is a
labor organization as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a 459-bed hospital in Perth
Amboy and an 80-bed hospital in Old Bridge, both in
New Jersey. Altogether it has about 1000 nonprofession-
al employees and about 400 professional employees, with
each group exclusive of managerial employees, physi-
cians, confidential employees , students , casual and tem-
porary employees, other employees, guards and supervi-
sors as defined in the Act.
In 1984, the Union filed the petition in Case 22-RC-
9300 seeking to represent the nonprofessional employees;
its petition in Case 22-RC-9301 pertains to the unit of
professional employees described above. On 18 October
I The remainder of the Union's objections had been withdrawn prior
to the hearing before me
53
1984 (all dates hereafter are for 1984 unless specified oth-
erwise), arrangements were made to hold elections on 5
and 6 December among employees in those units. The
first alleged unfair labor practice is alleged to have oc-
curred about 6 weeks before the elections took place. In
that 6-week interval , Respondent and the Union cam-
paigned vigorously via leaflets and meetings.
B. The Alleged Unlawful Restriction on the
Distribution of Union Literature
The complaint alleges , and Respondent denies, that
Kathryn Connor, Respondent 's administrative coordina-
tor, unlawfully restricted employees with respect to the
distribution of union literature during the preelection
period.
In support of that allegation, the General Counsel of-
fered the testimony of Mary Walker as follows. She is an
LPN who had a practice of punching in on the time-
clock about one-half hour before her starting time. There
was an occasion, about 6 weeks before the election,
when she intended to use that one-half hour interval to
hand out union literature in the cafeteria. On that occa-
sion she greeted several employees as she walked in and
placed union leaflets on a table. Respondent's administra-
tive coordinator, Connor, saw her do this and said, "I
can't believe this." Connor then asked Walker if she had
already punched in on the timeclock. Walker responded
that she had. Connor then told her that she could not
hand out union literature after she had punched in.
Walker protested that Connor was infringing on her
rights but complied with Connor's instruction.
Connor testified for Respondent as follows. The
"whole problem" she had with Walker in October had to
do with Walker's not having complied with Respond-
ent's guidelines regarding the use of the timeclock. Re-
spondent had a problem with employees who punched in
their timecards 20 minutes or more before their starting
times in that those employees were often not reporting
for work on time. Respondent adopted a policy of re-
quiring employees not to punch in prior to 10 minutes
before their scheduled starting times to ensure that they
would begin work on time . Sometime in October,
Connor had occasion to walk into the cafeteria about
one-half hour before the day shift was to begin. Walker
came into the cafeteria a few minutes later. Connor
asked Walker if she had punched in. Walker replied that
she had. Connor then told her that she should not be
punched in that early and that she has been told before
about Respondent's policy on that point. Walker told her
that she was infringing on her rights and then began to
hand out union literature, "particularly to a dietary girl
... working at the time." Connor told Walker that she
was not allowed to hand out union literature to employ-
ees who were working. Walker handed a leaflet to her,
Connor, and told her to read it. Connor again told
Walker not to hand out union literature to "people who
were working." Walker started to yell and finally left
"under protest." Walker then "started to whimper" that
Connors was hired as a union buster.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walker was recalled to rebut the assertions of Con-
nors . In particular , she denied she handed union litera-
ture to any employee who was working.
Respondent called a security guard for the purpose of
corroborating Connor 's account . The guard related that
Connors asked Walker if she had punched in and that
Walker said she had . The guard observed nothing else.
Respondent also called a supervisory nurse apparently
in an effort to corroborate Connor 's testimony about Re-
spondent's rule against employees punching in too early.
The supervisor 's testimony on that point did not allude
to any such policy.
I credit Walker 's account in view of the failure of Re-
spondent 's witnesses to corroborate Connor's account,
and as it is unlikely that Respondent would have a late-
ness problem with employees who come to its premises
early or that Respondent , to ensure that employees begin
work on time , would instruct those coming in early to
punch in later . Moreover, as the General Counsel notes
in the brief, Connor 's version is implausible as it is incon-
gruous for Walker to have accused Connor of infringing
on her rights to distribute union literature before Walker
handed any literature out that day . Further, and as the
General Counsel also noted in the brief, Connor's testi-
mony that the "whole problem" pertained to Walker's
having punched in too soon is undermined by her later
testimony aimed at showing that Walker was also in vio-
lation of Respondent 's distribution rule. Respondent, for
its part, notes in its brief that Respondent 's "concern
over early punch -ins is not debatable" by reason of the
Fair Labor Standards Act. If that be so , that assertion
would add but another dimension to the matters that de-
tract from the validity of Connor 's account, inasmuch as
she never indicated that that was her concern when she
confronted Walker.
C. Alleged Threat Concerning Merit Raises
One issue in this case is whether one of Respondent's
unit coordinators, Debra Mahoney, threatened employ-
ees under her that Respondent would stop granting merit
raises if the Union won the elections . It is undisputed
that Respondent has a practice of reviewing employee
wages each year and granting merit increases then.
The issue is one of credibility. In pressing their respec-
tive views on that point , all parties pointed out apparent
contradictions and inaccuracies on collateral matters, i.e.,
about when Mahoney held the first meeting with her
staff, about which meeting the subject of merit raises
came up , about whether witnesses who testified on the
issue were actually present when the subject of merit
raises was discussed , and so on . For the reasons dis-
cussed next, I find that none of the arguments, pro and
con, offered by the parties are persuasive in helping to
resolve the issue of exactly what Mahoney said when the
subject of merit raises came up.
Both the General Counsel and Respondent are in
accord that Mahoney discussed the subject of merit
raises at only one of the meetings she held concerning
the upcoming union elections . One of the General Coun-
sel's witnesses, Jan Sager , testified that that subject was
brought up at the first of three meetings she attended,
that that first meeting took place in mid -November, and
that Mahoney then made the unlawful threat discussed
below . Another of the General Counsel 's witnesses, RN
Kim Pilch , testified that that meeting occurred 2 or 3
weeks before the election, that is, about mid to late No-
vember.
Respondent placed in evidence a report prepared by
its unit coordinator, Mahoney , which reflected that she
held the first meeting concerning the union election on
29 October and that Sager attended it, but not Pilch. Re-
spondent then would have me discredit Sager's testimo-
ny that the first meeting she attended took place in mid-
November and also reject Pilch's effort to corroborate
Sager 's testimony . Further testimony adduced from Re-
spondent's witnesses beclouded this point . Thus, Ma-
honey testified that Sager and another employee, Carol
Donadio, arrived so late at the first meeting that it was
necessary for her to brief these two employees later what
transpired at that meeting . Sager's testimony creates an
additional tangential issue as she relates that the meeting
for which she and Carol Donadio arrived late was the
second one she attended and that it took place in late
November . Further, the report prepared by Mahoney
about the 29 October meeting presented its own prob-
lems in that Mahoney testified she wrote in the names of
the attendees whereas another of Respondent 's witnesses,
Gloria Dolman, testified that she herself signed the at-
tendance record . It may be that Dolman signed a sheet,
other than the report placed in evidence by Respondent,
but I am not sure . Dolman's account throws further con-
fusion on the report Mahoney prepared . Thus, according
to Respondent 's record, in evidence , Dolman attended
only the 29 October meeting but Dolman 's own testimo-
ny is that she was certain she attended more than one
meeting held by Mahoney on the matter of the union
elections . In fact Dolman stated she attended one meet-
ing at which Pilch was present ; Mahoney 's records indi-
cate she did not . Respondent produced no further
records to clarify Dolman's account or explain the ap-
parent discrepancies . On the other hand, the Union,
based on its analysis of the evidence concerning these
collective areas, stated in its brief that the meeting at
which the General Counsel's witness , Sager, arrived late
with coemployee Donadio was probably the 29 October
meeting . But Sager's testimony was that she and Dona-
dio arrived too late for the second meeting Mahoney
held and that was in late November . In sum , I find that
consideration of the testimony offered on the foregoing
matters collateral to the central issue concerning what
Mahoney actually said respecting merit raises does not
provide enough assistance to me in resolving that issue
but rather introduces secondary credibility concerns
which serve only to detract from it . I turn then to con-
sideration of the testimony offered concerning what Ma-
honey said respecting merit raises.
The General Counsel called three witnesses (RN Kim
Pilch, RN Elaine Zimmerman , and LPN Jan Sager) who
testified that, in mid or late November , Unit Coordinator
Debra Mahoney held a meeting on the fourth floor of
the Perth Amboy hospital. Present then were approxi-
mately 10 employees; they were aides, RNs, and LPNs
either finishing the night shift or reporting for the day
PERTH AMBOY HOSPITAL
shift. The General Counsel's witnesses testified that Ma-
honey then (1) stated that she had been asked to hold
staff meetings regarding the upcoming elections, (2)
talked about another union which struck a nearby hospi-
tal for 2 months to get a raise of only 1 percent , (3) told
employees that they could not collect unemployment
benefits if they go on strike , and (4) said that, if the
Union got in, the employees will no longer get merit
raises . 2 According to the General Counsel's witnesses,
one of the employees most active for the Union, Jan
Sager, then said to Mahoney that the Union will give the
employees yearly raises.
The testimony of the General Counsel 's witnesses also
reflected that Mahoney's comment concerning merit in-
creases came to the attention of the unit employees who
later voted and was upsetting to them.
Respondent called Debra Mahoney as its witness re-
specting the alleged threat. She testified that she held a
staff meeting and used an undated "fact" sheet compar-
ing Respondent 's wages and benefits with those at a
nearby organized hospital. On that sheet, and under the
category "Merit Pay," there is a note that Respondent's
program has improved each year and another note appli-
cable to a unionized hospital, reading, "not available to
bargaining unit employees." Mahoney testified that she
discussed in general each of the 11 items listed on that
sheet, including the merit pay item. She testified that
when she came to the merit pay matter, she explained
how Respondent's program worked, then said that at the
unionized hospital , merit raises were not available but
would be negotiable. Mahoney denied that she told the
employees that, if the Union got in, there would be no
more merit raises. Mahoney also testified that there was
no other discussion at the meeting about the merit pay
items . On cross-examination , Mahoney said she recalled
"slightly" that she had a conversation with Sager to the
effect that Sager told her that if the Union got in, the
Union would give increases.
I credit the accounts of the General Counsel's wit-
nesses . It seems unlikely that Mahoney would have, as
her account suggests , only a slight recollection of any
discussion she had with Sager, a leading union activist,
on the subject of merit pay and it is more likely that
Sager's comments were a rejoinder to remarks of Ma-
honey, as related by the General Counsel's witnesses.
D. Alleged Unlawful Remarks by Respondent's
President
A credibility issue exists concerning whether or not
Respondent's president, on 28 November, told several
employees that he would not bargain in good faith with
2 Pilch testified that Mahoney said, "I hope you realize that if the
Union gets in there will no longer be merit raises " Zimmerman testified
that Mahoney said that if the Union got in , the employees "couldn't
expect any merit raises" and Sager testified that Mahoney asked the em-
ployees if they realized that "if the Union got in, there would be no more
merit increases " Respondent argues in its brief that any such remark by
Mahoney is protected by Sec 8(c) as a prediction , not an unlawful threat
The cases cited by Respondent in support of that contention are not ap-
plicable to the facts in this case I reject Respondent's view as based on
sophistry and not plain meaning None of the considerations , discussed in
Jamaica Touring Inc, 236 NLRB 1700 (1979), which might have placed
Mahoney's remark in a different and lawful context, are present here
55
the Union if it won the election and whether or not he
also made unlawful disparaging comments to one of
them then.
Respondent's president, Keith McLaughlin, conducted
34 meetings with separate employee groups in which he
discussed the union elections. The format of those meet-
ings was fairly uniform. He and other officials gave brief
talks to the assembled groups and then had a question
and answer session after which all adjourned to the rear
of the room for coffee and informal discussion.
On 28 November Respondent was conducting one of
these meetings when two employees, who had just fin-
ished distributing union literature outside the building,
namely, Grisela Lopez and Raymond Kijoroski, walked
in and sat down to listen to the opening talks. Respond-
ent's president testified that he was concerned that these
two off-duty employees might attempt to turn the ques-
tion and answer part of the meeting into an open con-
frontation; he then opted to forgo the usual question and
answer session and to have coffee served immediately
after the formal talks concluded. The alleged unlawful
remarks of Respondent's president purportedly occurred
during the informal discussions when coffee was served.
The first credibility issue has to do with whether Re-
spondent's president said that he would never bargain in
good faith with the Union. To put the evidence concern-
ing that issue in context, it should be noted that the
Union had stressed in its campaign that it would aim for
better wages and benefits, if it won its election, by seek-
ing interest arbitration in the event of a bargaining im-
passe and that it would avoid a strike. Respondent's cam-
paign literature, on the other hand, pointed up how
unionized employees had suffered because of strikes.
During the course of the informal discussion session on
28 November, one of the prounion employees, Jan Sager,
asked Respondent's president, Keith McLaughlin, why
the hospital was always talking strike while the Union
was talking arbitration. Sager testified that McLaughlin
responded that she was daydreaming if she thought that
he was going to bargain in good faith across the bargain-
ing table.
Grisela Lopez testified for the General Counsel that
she heard McLaughlin make this remark. Raymond Ki-
joroski also testified for the General Counsel and he re-
lated that he heard a man at his rear make that comment
but he had not observed which man said it.
McLaughlin testified for Respondent as follows. Jan
Sager asked him why the hospital would not agree to in-
terest arbitration Before he could respond, Grisela
Lopez started to answer. McLaughlin told her that she
should give Sager the courtesy of allowing him to
answer as the question was asked of him. He also told
Lopez that if he was continuously interrupted, he
"would have to dismiss her from the meeting." He then
told Sager that he did not believe that the hospital would
agree to interest arbitration. She asked if he was saying
that he would not bargain in good faith and he replied
that he was not saying that.
Respondent's chief operating officer, Ronald Esser,
testified that McLaughlin told Sager that the hospital
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not agree to interest arbitration and that was Re-
spondent 's point of view throughout its campaign.
It is apparent from the testimony presented at the
hearing that McLaughlin was talking to some but not all
of the employees during the informal part of the meet-
ing. It is also clear that Lopez, Kijoroski , and Esser were
in conversation with other employees during that inter-
val. This is not a matter where witnesses had been focus-
ing on the remarks of one individual conducting a meet-
ing. I note also that the subject of interest arbitration was
referred to frequently during the Union's campaign to
offset Respondent 's campaign emphasis concerning the
impact on employees of a strike. The question posed by
Sager to McLaughlin itself evidences a sense of frustra-
tion on her part, and possibly the Union's too, at Re-
spondent's campaign tactics and suggests to me that she
asked the question in a rhetorical manner . It seems likely
that she did not expect a satisfactory response . 3 These
considerations, coupled with the unlikely prospect that a
knowledgeable executive such as McLaughlin would
make so blatant a remark that Respondent would not
bargain in good faith, weigh heavily against the General
Counsel's burden of persuading me that he did utter such
a remark. There are countervailing factors in the General
Counsel's favor. Thus, as noted below, McLaughlin
struct me as a strong personality who would be quick to
voice his displeasure. Also, the General Counsel's wit-
nesses stood up well against vigorous cross-examination.
The first of those factors, McLaughlin's strong pesona-
lity, cuts both ways however. It is not unlikely that, in
his stating Respondent 's position to Sager, as he recount-
ed it, she was affected more by his mannerisms and that,
coupled with her own predisposition to hear an answer
unsatisfactory to the Union's demands, could easily have
led her to interpret his remarks as a statement that he
would never bargain in good faith. The tenor of the ac-
counts of the General Counsel's other two witnesses sug-
gests this same conclusion . In short, the totality of the
evidence is insufficient to persuade me that the testimoni-
al accounts of Sager, Lopez, and Kijorowski, although
lucid, reflect more probably the actual comments of
McLaughlin than his denial . I thus find that Respond-
ent's president did not state on 28 November that Re-
spondent would refuse to bargain in good faith with the
Union if it won the elections.
I turn now to the allegation that Respondent made un-
lawful disparaging remarks. Although the resolution of
this issue turns on credibility, and although the General
Counsel relies on the testimony of the same witnesses
(Sager, Lopez, and Kijorowski) whose accounts about
what McLaughlin had earlier said were rejected, as set
out in the preceding paragraph , I am not disposed to
reject all the testimony offered by these witnesses simply
because I have rejected their accounts about their per-
ception of the impact of McLaughlin's remarks on the
3 Shortly before Sager questioned McLaughlin , she had in effect ac-
cused Respondent 's chief operating officer , Esser, of having made offen-
sive remarks to a nurse at an earlier meeting and demanded that Esser
apologize Esser told Sager that his remarks were proper and that there
was no reason to apologize I note that testimony as, to some extent, it
indicates that Sager was then inclined to challenge Respondent's view-
points and inclined also to perceive them in the worst possible light
duty of Respondent to bargain collectively on the sub-
ject of interest arbitration. Moreover, nothing is more
common in all kinds of judicial decisions than to believe
some and not all of a witness ' testimony. See Giovanni's,
259 NLRB 233, 236 fn. 7 (1981).
Sager testified that after her discussion with McLaugh-
lin on the subject of interest arbitration, Lopez asked
McLaughlin a question and that McLaughlin then
became furious, shook his head violently, and told Lopez
that she was a troublemaker who did not belong at the
meeting.
Lopez testified as follows on that matter. She was
asked by a coworker about decertification and was in the
process of discussing that subject. McLaughlin then
began to walk towards Lopez and told everyone to
return to work. Lopez asked McLaughlin if she could
finish her conversation with her coworker. In response,
McLaughlin called her an agitator and a troublemaker
who did not belong at that meeting. She felt that
McLaughlin was going "to hit" her and she left.
Kijoroski testified along the same lines as Lopez.
McLaughlin testified as follows for Respondent. He
was in the process of answering Sager's question about
interest arbitration and Lopez interrupted. He told her to
give Sager the courtesy of letting him respond, that ev-
eryone else present was there on hospital time but she
was not and that, if she continued to interrupt, she
would have to leave.
Respondent's chief operating officer, Esser, testified
that Lopez interrupted McLaughlin while he was an-
swering a question, that McLaughlin told her to stop in-
terrupting, and that she then did stop. Esser denied that
McLaughlin called her an agitator or troublemaker.
Respondent called a staff nurse, Jill Lorfing, as a wit-
ness . She testified that Lopez interrupted McLaughlin
and he told Lopez that everyone else was there on hos-
pital time but her and that if Lopez continued to inter-
rupt, she would have to leave.
I credit the accounts given by the General Counsel's
witnesses. In doing so, I have taken into account that
McLaughlin impressed me as one with a strong personal-
ity, accustomed to receiving deference, and inclined to
ready annoyance at having his views questioned. The
very fact that he viewed Lopez' one question to him as a
continued interruption betrays his temperament in that
regard. I note, too, that he had been anticipating an at-
tempt by Lopez and Kijoroski to convert Respondent's
meeting to a Union's campaign effort. It seems clear, too,
from Lorfing's account as well, that McLaughlin was an-
noyed that Lopez was there on her own time while ev-
eryone else was on Respondent's time. In short, it seems
likely from the foregoing that McLaughlin was disposed
to anger at the prospect of Lopez' exploiting Respond-
ent's coffeetime with employees to use it in furtherance
of the Union and that he vented that anger at Lopez.
E. Alleged Unlawful Interrogation, Implied Warning,
and Threat
Anna Coy, a technician in Respondent's employ, testi-
fied that in November the Union distributed a leaflet
which listed her name as one of its supporters. Her su-
PERTH AMBOY HOSPITAL
pervisor, Judith Goldberg, later approached her and said
she had no business to ask Coy but nonetheless Goldberg
wanted to know if Coy had given the Union permission
to list her name . Coy told her she did. Coy testified that
Goldberg then asked her if she was not worried and that
when Coy replied that she was not, Goldberg then asked
her if she liked her job and that she responded that she
did.
Coy also testified that sometime before the election,
Goldberg talked to her about her work schedule and
that, in the course of doing so, Goldberg referred to the
fact that Coy often had been late for work. According to
Coy, Goldberg told her then that, when the Union gets
in, she will be fired if she is late three times . Coy testi-
fied that she had never previously been warned about
her attendance record.
Goldberg testified for Respondent as follows. When
she saw Coy's name on the union leaflet , she was sur-
prised and asked Coy if the Union had her permission to
use it, to which Coy responded that the Union did. That
conversation ended after she told Coy that she should be
sure she knows everything about the Union before she
lends it her name . Goldberg does not believe she told
Coy she should be worried. Goldberg did not then solicit
any grievances from Coy.
Goldberg further testified that she had several conver-
sations with Coy about her being "notoriously tardy."
On 19 December, Goldberg informed all the employees
in her department that they "better shape up."
I credit Coy's testimony in all particulars as she ap-
peared very candid, and because Goldberg corroborated
material aspects of it and did not directly controvert
other material parts.4
F. Analysis
1. Alleged unlawful restriction of the distribution of
union literature
The credited testimony establishes that on one morn-
ing in mid-October LPN Walker was instructed not to
hand out union literature after she punched in her time-
card. I find that Respondent's reason for issuing such an
order to be pretextual and that its real reason was to in-
hibit the lawful distribution of union literature. In these
circumstances, I find that Respondent's instruction to
Walker was aimed solely at curtailing Walker's union ac-
tivities and that it thereby interfered with, restrained, and
coerced employees as to their rights under Section 7 of
the Act. See Dutch Boy, Inc., 262 NLRB 406 (1982).
2. Alleged warning about merit raises
Based on the credibility resolution made above con-
cerning the meeting held by Debra Mahoney, a unit co-
ordinator, with members of her staff, including Sager,
Pilch, and Zimmerman about mid-November, I find that
Respondent then informed those staff employees that if
* Goldberg's testimony about a 19 December warning is not in issue
Respondent would apparently have me find that that was the only warn-
ing given Coy about her lateness I cannot draw such an inference in
light of Coy's unrebutted testimony about the discriminatory warning
given her prior to the election
57
the Union won the upcoming elections, Respondent
would no longer grant merit wage increases to its em-
ployees and that Respondent thereby violated Section
8(a)(1) of the Act. See Jamaican Touring Inc., 236 NLRB
1700 (1979).
3. McLaughlin's statements
As I have found that the General Counsel has not sus-
tained the burden of proving that McLaughlin told Sager
on 28 November that Respondent would not bargain in
good faith with the Union, I conclude that the complaint
allegation thereon should be dismissed.
The credited evidence did establish, however, that
McLaughlin became angry with Lopez' talking to a co-
worker on 28 November about the union election and
that he called her an agitator and troublemaker in the
presence of all the employees at that meeting. Respond-
ent, in its brief, argues that such conduct cannot be un-
lawful, citing Premier Rubber Co., 272 NLRB 486 (1984),
for the proposition that it would be but a "harmless com-
ment to an open and active union supporter." The Gen-
eral Counsel and the Union argue , in their respective
briefs, in essence, that such a remark is unlawful precise-
ly because it is directed at an open and active union sup-
porter, citing Champion Road Machinery, 264 NLRB 927,
929 (1982), and other cases for the proposition that the
public disparagement of prounion employees as trouble-
makers and agitators interferes with employees' Section 7
rights as it indicates to employees that prounion employ-
ees have been placed in relatively unfavorable positions
because of their support for a union.
Respondent's reliance on Premier Rubber is misplaced
as there the union was subjected to name-calling. The
cases relied on by the General Counsel and the Union
are to some extent also distinguishable as, in good part,
the disparaging remarks were made in conjunction with
other, obviously coercive, conduct. Nevertheless, it
seems quite clear to me that a supervisor' s disparaging an
employee before his peers because of that employee's
support for a union is inherently coercive. To hold oth-
erwise would condone abuse of managerial responsibility,
would treat employees as insensitive cogs, and, most im-
portantly, would undermine their personal right to have
the respect of their fellow workers and their supervisors.
Abuse of an employee in the form of name-calling be-
cause of his support for a union is a personal affront and
a serious impairment of his Section 7 rights and those of
his coworkers.
4. The Goldberg-Coy discussion
Having credited Coy's testimony and taking into ac-
count the attendant circumstances, I find that Respond-
ent unlawfully interrogated Coy in mid-October. See Ro-
sehill Cemetary Assn., 275 NLRB 180 (1985); Doral Build-
ing Services, 273 NLRB 454 (1984); Masters Security Serv-
ices, 270 NLRB 543 (1984). The implied warning given
by its chief medical technologist that Coy would suffer
reprisals because of her support of the Union was also
coercive. The General Counsel has alleged that Gold-
berg's comments also constitute an unlawful solicitation
of grievances, presumably aimed at inducing Coy to
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdraw her support from the Union. To reach that
conclusion , it would be necessary to draw several pre-
liminary inferences first and from those draw the one
that the General Counsel contends is violative . Rather, I
find that Goldberg's asking Coy if she is happy with her
job is a further suggestion that she might lose it by her
continued support of the Union , i.e., part of the implied
warning already found , and not an unlawful solicitation
of grievances.
Last, the credited evidence also discloses that Re-
spondent threatened Coy with stricter enforcement of its
work rules because she supported the Union.
Altogether then , I conclude that Respondent, by chief
medical technologist , Goldberg, unlawfully interrogated
Coy, impliedly warned her that she would suffer repris-
als because of her support of the Union, and threatened
stricter enforcement of work rules against her based on
that same consideration . Respondent, however , did not
solicit grievances from Coy to induce her to withdraw
her support from the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act and a health care institution within the meaning of
Section 2(14) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has committed the following unfair
labor practices in violation of Section 8(a)(l) of the Act:
(a) by having, through administrative coordinator,
Kathryn Connor, unlawfully restricted the distribution of
union literature in mid-October, 1984.
(b) by having, through unit coordinator, Debra Ma-
honey, warned employees in mid-November 1984 that, if
the Union won the elections , Respondent would discon-
tinue granting employees merit pay increases each year.
(c) by having, through its president, Keith McLaugh-
lin, publicly disparaged an employee because that em-
ployee was a union supporter.
(d) by having, through its chief medical technologist,
Judith Goldberg, unlawfully interrogated an employee as
to her support for the Union, impliedly warned that she
would suffer reprisals because of that support, and
threatened her with stricter enforcement of work rules to
discourage her support for the Union.
4. Respondent did not, as alleged in the complaint,
state that it would not bargain in good faith with the
Union if it won the elections or unlawfully solicit griev-
ances to induce employees to withdraw support from the
Union and , consequently, the complaint allegations there-
on are without merit.
5. The unfair labor practices found in paragraph 3
above affect commerce within the meaning of Section
2(6) and (7) of the Act.
III. THE REPRESENTATION CASES
The objections filed by the Union parallel the unfair
labor practices alleged in the complaint . Based on the
findings and conclusions above , those objections which
track the unfair labor pactices found above, have merit;
the remainder do not.
The critical issue is whether or not the results of the
elections should be set aside by reasons of there being
merit in certain of the Union 's objections.
Briefly, it has been found that an LPN, Walker, was
informed that she could not distribute union leaflets as
long as she had punched in her timecard . That limitation
turned out to have no serious impact on her ability to
distribute union literature as she acknowledged that, sub-
sequently , she simply waited until after she distributed
the literature before she punched in.
It was found that in one brief talk, a low-level supervi-
sor, Unit Coordinator Mahoney, construed a campaign
chart to indicate that Respondent would no longer grant
merit raises if the employees voted for the Union. It ap-
pears, too, that that statement was disseminated by word
of mouth to other unit employees . In context however,
Mahoney's aberrant remark on that one occasion has to
be considered against the backdrop of an aggressive cam-
paign by both sides and in the context of Respondent
having conducted 34 employee meetings with its top of-
ficials who invited questions to resolve any concern. It
would seem that, if the issue of merit raises reached a
level of significance to have affected the results of the
elections , that issue would have been raised and resolved
at the highest management level during any of these 34
meetings . It appears that that issue was never so raised.
Even the employee (Sager) who had testified to Mahon-
ey's remark, did not testify that she confronted
McLaughlin with it, although she readily confronted him
on other points.
Lastly, the Goldberg-Coy discussions were one-on-one
conversations and do not appear to have had any real
impact on the overall election process, particularly in
view of the large sizes of the respective units.
I therefore conclude that it will not effectuate the poli-
cies of the Act to set aside the results of the election and
to conduct rerun elections . Cf. Metz Metallurgical Corp.,
270 NLRB 889 (1984).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed5
ORDER
The Respondent, Raritan Bay Medical Center a/k/a
Perth Amboy General Hospital and Old Bridge Regional
Hospital, Perth Amboy and Old Bridge, New Jersey, its
officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Unlawfully interrogating employees concerning
their support for District 65, United Automobile, Aero-
space & Agricultural Implement Workers of America,
AFL-CIO.
(b) Warning them that they would no longer receive
merit raises if the Union was selected to represent them.
3 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
PERTH AMBOY HOSPITAL
(c) Holding employees up to public ridicule by making
disparaging comments to them because of their support
for the Union.
(d) Impliedly warning employees that they would
suffer reprisals because of their support for the Union.
(e) Threatening stricter enforcement of work rules to
discourage support for the Union.
(f) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its hospitals in Perth Amboy and Old
Bridge, New Jersey, copies of the attached notice
marked "Appendix."6 Copies of the notice, on forms
provided by the Regional Director for Region 22, after
being signed by the Respondent 's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found above.
IT IS FURTHER ORDERED that , notwithstanding that
those objections to the conduct of the elections, which
6 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 "
59
parallel the unfair labor practices found herein, have
merit , certifications of results should issue in both repre-
sentation cases that the Union has not received a majori-
ty of the valid votes cast in either unit.
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 or-
dered us to post and abide by this notice.
WE WILL NOT unlawfully interrogate our employees
about their support for District 65, United Automobile,
Aerospace & Agricultural Implement Workers of Amer-
ica, AFL-CIO.
WE WILL NOT unlawfully restrict employees in distrib-
uting campaign material for the Union.
WE WILL NOT hold employees up to public ridicule by
making disparaging remarks about them because they
support the Union.
WE WILL NOT warn employees that they will suffer re-
prisals because of their support for the Union.
WE WILL NOT threaten employees with stricter en-
forcement of work rules in order to discourage their sup-
port for the Union.
WE WILL NOT in any related manner interfere with, re-
strain or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
RARITAN BAY MEDICAL CENTER A/K/A
PERTH AMBOY GENERAL HOSPITAL AND
OLD BRIDGE REGIONAL HOSPITAL