Petaluma Hospital

National Labor Relations Board - Board Decisions

Jul 26, 1984

271 N.L.R.B. 412 (N.L.R.B. 1984)

DECISIONS OF NATIONAL
James F. Cotter, Proprietor, d/b/a Petaluma Conva-
lescent Hospital and Hospital and Institutional
Workers Union, Local 250, Service Employees
International Union, AFL-CIO, Petitioner.
Case 20-RC-15485
26 July 1984
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted by the Regional Director for Region 20
of the National Labor Relations Board 13 May
1982 among employees in the stipulated unit. At
the conclusion of the election, the parties were fur-
nished a tally of ballots which showed that of ap-
proximately 64 eligible voters, 16 cast ballots for
and 37 cast ballots against the Petitioner. There
were no challenged ballots. Thereafter, the Peti-
tioner filed timely objections to conduct affecting
the results of the election.
After an investigation, the Regional Director
issued his Report on Objections and notice of hear-
ing. In his report, the Regional Director found that
the Petitioner's objections disclosed substantial and
material issues of fact which could best be resolved
by a hearing.
Pursuant to the notice, a hearing was held 15
July 1982 before Hearing Officer Alina M. Lopez-
Martin, in which the Employer and the Union par-
ticipated. The parties were afforded full opportuni-
ty to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the
issues herein. Thereafter, the Employer filed timely
exceptions and a supporting brief, and the Union
filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the hearing officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
The Board has reviewed the record in light of
the exceptions and briefs and hereby adopts the
hearing officer's findings and recommendations.'
1 We have considered our colleague's dissenting opinion but are in full
agreement with the hearing officer's findings and recommendations
which accord with pertinent Board precedent. Our dissenting colleague's
concerns have been considered, and rejected, in various of the decisions
cited by the hearing officer in her report. The hearing officer found the
alleged interrogation nonthreatening and not creative of an atmosphere
that rendered a free choice improbable. However, she recommended a
new election based on the threat to close the facility. The pertinent por-
iion of the report has been attached to this decision as an appendix. We
271 NLRB No. 65
ORDER
It is hereby ordered that the election conducted
herein on 13 May 1982 among the employees of
James F. Cotter, Proprietor, d/b/a Petaluma Con-
valescent Hospital, located at Petaluma, California,
is set aside.
[Direction of Second Election omitted from pub-
lication.]
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues and the hearing offi-
cer, I would find that the statement by Mary Fumi-
galli, director of staff development, to several em-
ployees in the employees' or nurses' lounge con-
cerning her feeling that Cotter, the Employer's
proprietor, would close the facility and go bank-
rupt before he would allow the Union to come in,
did not constitute a threat which inhibited the em-
ployees in casting their ballots in the election.
The record shows that the employees' lounge
was used as a "break" area by both employees and
supervisors; that Fumigalli is a minor supervisor
whose main function is the 2- or 3-day orientation
of new nurses aides and the establishment of an in-
service training program for nurses; and that Fumi-
galli's supervisory authority is limited to recom-
mending to the director of nursing that an employ-
ee is not doing a satisfactory job and should be rep-
rimanded. Nurse assistant Sharon Ragland, a union
organizer, testified that only three or four other
employees in addition to herself were present in
the nurses' lounge when Fumigalli made her state-
ment.
Moreover, the record also shows that the em-
ployees who heard Fumigalli's statement did not
believe that the Employer would close the facility
and were aware that such conduct would be un-
lawful. Employee Ragland testified, "I didn't be-
lieve it," when asked at the hearing about her re-
agree that the election should be set aside and that a new election should
be directed.
In light of the decision to set aside the election, Member Zimmerman
finds it unnecessary to pass on the hearing officer's finding with regard to
the alleged interrogation of employees.
We find, contrary to our dissenting colleague, that the record does not
support a finding that the statement by Mary Fumigalli, director of staff
development, that the Employer would close the facility and go bankrupt
before he would allow the Union to come in, 2 days before the election
in the employees' lounge, was not widely disseminated because no more
than 3 or 4 of the 64 eligible voters heard the statement. Although
Sharon Ragland, a union organizer, testified that only three or four other
employees in addition to herself were present in the lounge when Fumi-
galli made her statement, such testimony does not constitute evidence
that the statement was not disseminated to other employees. The employ-
ees who heard Fumigalli's statement did not testify, and Ragland did not
testify that she did not speak to other employees concerning Fumigalli's
statement. No conclusion may be drawn from this record that the impact
of Fumigalli's statement was limited to the three or four employees in her
presence when she made the threat. See Standard Knitting Mills, 172
NLRB 1122 (1968).
412
PETALUMA HOSPITAL
sponse to Fumigalli's comment that Cotter would
shut down and go bankrupt if the Union came in.
Ragland testified further that at the time Fumigalli
made the comment in issue she stated that Cotter
would not give up a $76,000 income for one union.
Ragland also made the statement to Fumigalli that,
"He [Cotter] cannot do that, and I am not stupid
enough to believe that he would." In response to a
question by counsel for the Union as to whether or
not the other employees who were in the lounge
with Ragland knew whether or not Fumigalli's
comment was against the law, Ragland testified:
"Most of them were aware of that, yes." When
counsel asked Ragland how she knew that, Rag-
land testified: "Because of my helping organize the
union; I was reassuring them they couldn't do
that."
I find that, as the record shows, Fumigalli, a
minor supervisor, was merely expressing her per-
sonal feelings concerning the Employer's response
to the Union; that the comment was made in a
break area regularly used by both employees and
supervisors where myriad topics were discussed;
that no more than 3 or 4 of the 64 eligible voters
heard the comment; and that the employees were
aware of the law and that none felt threatened.
In conclusion, I would find that Fumigalli's com-
ment was not clearly coercive and that it did not
have a tendency to restrain the exercise of free
choice in the election. Accordingly, I would not
set aside the election.
APPENDIX
Sharon Ragland testified that on May 11, two days
before the election, Director of Staffing Mary Fumigalli
spoke with a group of employees in the nurses lounge.
Fumigalli stated that she felt that Cotter would "close
the facility down before he would allow a union to come
in." "He would close it down and go bankrupt before he
would allow a union to be. .. " These statements took
place after a meeting held by James Cotter, two days
before the election. The Employer did not provide any
rebuttal testimony.
Eric Mawson, who was the administrator of the facili-
ty from March 16 to May 13, testified that Mary Fumi-
galli was excluded from the Excelsior list because she is
considered a supervisor and part of management. Fumi-
galli is a registered nurse who has on occasion acted as a
charge nurse and who during the critical period acted
primarily as the Director of Staff Development.
As Director of Staff Development, Fumigalli can rec-
ommend against certifying new employee trainees and
her recommendations are acted upon. She is in charge of
orienting new personnel to the facility. She also provides
in-service training to the nursing staff and answers di-
rectly to the Director of Nursing, Dorothy Beck.
According to Mawson, all directions given by Fumi-
galli, or any other registered nurses, are to be followed
by the nursing staff. Mawson explained that the Director
of Nursing can direct Fumigalli to give in-service train-
ing if she believes that nursing care warrants it. Fumi-
galli sets up the training program and then implements it.
Fumigalli then reports the progress of the nurses to the
Director of Nursing. Although Fumigalli does not have
the authority to reprimand employees, she can effective-
ly recommend that an employee be reprimanded for not
performing his or her job, at which time the Director of
Nursing counsels the employee.
Mawson testified further that Fumigalli regularly at-
tends management meetings and was instructed as to the
do's and don'ts of management during the Union orga-
nizing campaign.
The Employer in its brief argues that Fumigalli, a su-
pervisor within the meaning of the Act, was not in a po-
sition to know the management position, but was merely
speculating without actual knowledge. Furthermore,
even if two or three other employees who were present
during the exchange were coerced, there is no evidence
that they communicated the exchange to other employ-
ees, and therefore, the number of employees who might
have been influenced could not have been sufficient to
affect the outcome of the election.
In determining whether any person is acting as an
agent of the Employer, the questions of whether the spe-
cific acts performed were actually authorized or subse-
quently ratified shall not be controlling. In determining
whether an Employer's statement to employees is per-
missible, the major issue is whether the employees could
find any hidden threat or promise in what was said.' Fu-
migalli's prediction that the facility might close, was
heard by Sharon Ragland, Sharon Shaw, Farideh Day-
lamy, Gina Fumigalli, and Patty Vivian. Furthermore,
the Board has held that statements during election cam-
paigns are expected to be disseminated and discussed
among employees. 2
Accordingly, I recommend that the election held May
13, should be set aside and that a new election should be
held.
Caron International, 246 NLRB 1120.
2 Standard Knitting Mills Inc., 172 NLRB 1122 (1968).1 disagree with
the Employer's argument and conclude that Fumigalli's prediction of the
closure of the facility made close to the election date,? was sufficiently
threatening to inhibit the free choice of the employees in casting their
ballot for or against Petitioner.
' Dresser Industries, 231 NLRB 501, and Strouffer Restaurant and Inn Cor-
poration, 213 NLRB 799, 800.
413