Presbyterian Community Hospital

National Labor Relations Board - Board Decisions

Jun 29, 1977

230 N.L.R.B. 599 (N.L.R.B. 1977)

PRESBYTERIAN COMMUNITY HOSPITAL
Presbyterian Community Hospital and Union de
Empleados de Hospitales de Puerto Rico and
Office and Professional Employees International
Union, Local 462, AFL-CIO, Party to the Con-
tract. Case 24-CA-3774
June 29, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On March 30, 1977, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order except as modified
herein.l
Respondent apparently concedes that it violated
Section 8(a)(2) and (1) of the Act by executing a 3-
year collective-bargaining agreement with Office and
Professional Employees International Union, Local
462, AFL-CIO (hereinafter Local 462) on September
30, 1976, although it had been advised that Local 462
no longer represented a majority of the employees in
the bargaining unit. However, Respondent excepts to
the Administrative Law Judge's finding that it
unlawfully maintained and enforced said contract in
all respects. Respondent takes the position that,
although it honored the union-security and dues-
checkoff provisions of the agreement,2 it did not
otherwise implement the contract, including its wage
and fringe benefit terms. 3
We agree with Respondent that the record fails to
disclose that it put into effect the September 30, 1976,
contract, except for the articles relating to union
security and dues checkoff. But we find that evidence
that these two articles of the contract were observed
is sufficient to satisfy the allegation of the complaint
that Respondent maintained and enforced the
I In par. I(c) of his recommended Order, the Administrative Law Judge
provides that Respondent shall cease and desist from "in any like or related
manner" infringing upon employee rights guaranteed in Sec. 7 of the Act.
However. in cases of this kind, involving a violation of Sec. 8(aX3), it is the
Board's established policy to use the broad injunctive language "in any
other manner." See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A.
4, 1941). Accordingly, we shall modify the Administrative Law Judge's
recommended Order and notice to conform his injunctive language to that
customarily used by the Board.
2 Respondent, however, placed the dues collected from employees under
the contract in escrow, rather than paying the money to Local 462.
230 NLRB No. 80
collective-bargaining agreement. General Counsel
need not establish that each and every term of such
an illegal agreement was enforced.
Respondent also excepts to the following language
contained in the section of the Administrative Law
Judge's Decision entitled, "The Remedy,": "Nothing
contained herein shall be construed as requiring the
Hospital to vary the wages, hours, seniority, or other
substantive terms of employment which the Hospital
has established in the performance of said contract,
or to prejudice the assertion by its employees of any
right that they may have thereunder." Respondent
excepts further to similar language used in paragraph
l(b) of the Administrative Law Judge's recommend-
ed Order. Respondent contends that such language
might be interpreted as requiring it to pay retroac-
tively to employees the wage rates and fringe benefit
levels specified in the September 30, 1976, collective-
bargaining agreement.
The intent and purpose of the language called into
question by Respondent is to insure that the
Decision and Order is not construed as requiring
Respondent to change or vary any wage, hour,
seniority, or other substantive terms of employment
which it may have established in the performance of the
illegal contract. The language in issue is not intended
or designed to require Respondent to observe
retroactively, or prospectively, the substantive provi-
sions of the contract. However, to resolve any
ambiguity, we hereby modify the last sentence of the
second paragraph of "The Remedy," section of the
Administrative Law Judge's Decision to read as
follows: "Nothing contained herein shall be con-
strued as requiring Respondent to abandon or vary
any wage, hour, seniority, or other substantive terms
of employment which it may have established in the
performance of said contract." We shall similarly
modify paragraph l(b) of the recommended Order
and the Notice.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Presbyterian Community Hospital, Santurce,
Respondent does not except to the Administrative Law Judge's finding
that it violated Sec. 8(aX3) by including a union-security clause in the
contract.
3 We hereby deny Respondent's request that the record be reopened to
receive a sworn statement from its comptroller averring that Respondent did
not implement the wage and fringe benefit provisions of the September 30,
1976, agreement, as Respondent has shown no reason why such evidence
was not offered at the hearing.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Puerto Rico, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) Giving effect to its collective-bargaining
contract with said Local 462 executed on September
30, 1976, or any renewal, extension, or modification
thereof; provided, however, that nothing contained
herein shall be construed as requiring Respondent to
abandon or vary any wage, hour, seniority, or other
substantive terms of employment which it may have
established in the performance of said contract."
2. Substitute the following for paragraph l(c):
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize Office and Professional
Employees International Union, Local 462, AFL-
CIO, as the exclusive collective-bargaining repre-
sentative of our licensed practical nurses and
technicians, unless and until said Local 462
demonstrates its majority status in a Board-
conducted election among such employees in an
appropriate unit.
WE WILL NOT give effect to our collective-
bargaining contract with said Local 462 executed
on September 30, 1976, or any renewal, extension,
or modification thereof; provided, however, that
we are not required to abandon or vary any wage,
hour, seniority, or other substantive terms of
employment which we may have established in
the performance of said contract.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the
National Labor Relations Act.
WE WILL reimburse all our present and former
employees for all initiation fees, dues, or other
moneys paid or withheld pursuant to the contract
executed on September 30, 1976, or any exten-
sion, renewal, modification, or supplement there-
of, or any superseding agreement, with interest at
6 percent per annum, computed quarterly.
PRESBYTERIAN
COMMUNITY HOSPITAL
DECISION
STATEMENT OF THE CASE
MARVIN RoTH, Administrative Law Judge: This case was
heard at Hato Rey, Puerto Rico, on January 24, 1977. The
charge was filed on October 1, 1976, by Union de
Empleados de Hospitales de Puerto Rico (herein called
U.E.H.). The complaint, which issued on November 30,
1976, and was amended at the hearing, alleges that
Presbyterian Community Hospital (herein called the
Hospital or Respondent), violated Section 8(aXl) and (2)
of the National Labor Relations Act, as amended. The
gravamen of the complaint is General Counsel's contention
that the Hospital violated Section 8(a)(2) by negotiating,
executing, and thereafter maintaining and enforcing a
collective-bargaining contract with the Office and Profes-
sional Employees International Union Local 462, AFL-
CIO (herein called Local 462), the incumbent Union,
notwithstanding that the Hospital had actual knowledge
that a majority of its employees no longer wished to be
represented by Local 462. The answer, as amended at the
hearing, denies the commission of the alleged unfair labor
practices. All parties were afforded full opportunity to
participate, to present relevant evidence, to argue orally,
and to file briefs.
Upon the entire record in this case and from my
observation of the demeanor of the witnesses, and having
considered the arguments of counsel and the briefs
submitted by General Counsel and by Respondent, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Puerto Rico corporation, maintains a
proprietary hospital at Santurce, San Juan, Puerto Rico,
where it is engaged in providing hospital and medical
services and related services. The Hospital has an annual
gross volume of business in excess of $250,000, and in the
course of its business annually receives at the Hospital
goods and materials valued in excess of $50,000 directly
from States of the United States other than the Common-
wealth of Puerto Rico. I find, as the Hospital admits, that it
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties do not dispute the fact that Local 462 is a
labor organization within the meaning of the Act. The
Hospital contends that U.E.H. is not a statutory labor
organization because, in the past, it has represented only
employees of the Commonwealth of Puerto Rico or of its
political subdivisions. The question is not material to the
merits of the present case, because, as will be discussed,
General Counsel's case does not rest on any assertion that
the Hospital was confronted by rival claims of representa-
tion. In any event, the uncontroverted evidence in this case
indicates, and I so find, that U.E.H. is a statutory labor
organization. U.E.H. has filed two election petitions (one
of which is presently pending) seeking an election among
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PRESBYTERIAN COMMUNITY HOSPITAL
the Hospital's employees for the purpose of representing
them and in support of those petitions, and has solicited
and obtained union authorization cards from among those
employees. Therefore, U.E.H. is an organization in which
employees participate and which exists for the purpose of
engaging in collective bargaining with employers. As
U.E.H. is willing to represent the Hospital's employees, it is
immaterial that U.E.H. has not previously represented
employees covered by the Act. Trenton Foods, Inc., 101
NLRB 1769, 1770 (1952); Plains Cooperative Oil Mill, 123
NLRB 1709, 1710, fn. 2 (1959).
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Since on or before October 1, 1973, the Hospital has
recognized Local 462 as the collective-bargaining represen-
tative for a unit of licensed practical nurses and technicians
employed in various departments of the Hospital.' On or
about October 1, 1973, the Hospital and Local 462
executed and thereafter maintained a contract covering the
unit employees which by its terms was effective from
October 1, 1973, through September 30, 1976. The contract
contained a lawful union shop provision and further
provided for employer checkoff of union dues and
initiation fees. During the month of September 1976, there
was a maximum of 103 employees in the recognized unit.
During June 19762 there was considerable discontent
among the employees concerning the manner in which
Local 462 was representing, or ostensibly failing to
represent, their interests. Employees, led by practical nurse
Ada Diaz, sought to displace Local 462 with another
union. However, they found their efforts thwarted by the
intricacies of Board law. On July 22, in Case 24-RC-5813,
U.E.H. filed a petition for an election. On July 29, the
Regional Director, acting on the authority of Trinity
Lutheran Hospital, et al., 218 NLRB 199 (1975), dismissed
the petition because it had not been filed during the 90- to
120-day period prior to expiration of the contract, which
period is applicable to health care institutions. Thereafter
the employees tried another approach. On August 13, Diaz
presented Hospital Personnel Director Martienzo with a
letter, signed by 65 employees, stating that "we, employees
of the Presbyterian Hospital and members of the Union
O.P.E.I.U. Local 462, want the deduction of dues for said
union to be discontinued. Starting from August 31, 1976."
The letter had been prepared by Diaz. Martienzo told her
that the employees should accept the contract as it was.
Undaunted, Diaz and other employees decided to file a
deauthorization (UD) petition with the Board. However,
Diaz had overlooked one detail. The Hospital had retained
I The unit, which is defined in the 1973 contract between the parties,
consists of: "Licensed practical nurses, operating room technicians,
orthopedics technicians, physiotherapy technicians (excluding physiothera-
pists) and cytology technicians (excluding cytotechnologists)... Excluded
from the . . . unit are the administrators, executives, superior directors,
professional employees excluded by law, operation and maintenance
employees, secretaries to the administrator, secretary to the asst.-administra-
tor, secretary to the comptroller, messengers, seamstresses, watchmen,
drivers, housemothers, and helpers, personnel office clerks, and any other
persons with authority to hire, discharge. promote, discipline or otherwise
alter the status of the employees or make recommendations to such effect, as
defined by law." No issue is presented as to the appropriateness of the unit.
the employees' letter and Diaz had neglected to make and
retain a copy of the letter with signatures. She then
prepared another letter, solicited the signatures of as many
of the original signers as she could locate, and as to those
she could not locate or did not have time to reach, she
inserted their names herself. Late that afternoon, practical
nurse Anna Maria Gonzales, in her behalf and other
employees, filed the deauthorization petition in Case 24-
UD-166, accompanied by the substituted letter.3 A
deauthorization election was conducted on September 15.
Of approximately 90 eligible voters, 63 voted for deauthori-
zation, none against, and I ballot was challenged. On
September 22 Local 462 filed timely objections to the
conduct of the election. The objections were pending
disposition on December 28, when with the approval of the
Regional Director the UD petition was withdrawn.
In the meantime, on September 16, the day after the
deauthorization election, a group of unit employees met
with Ada Anduze, who, until September 23, was assistant
to the administrator and chief spokesperson for the
Hospital in bargaining negotiations. The employees
learned for the first time that the Hospital and Local 462
were in the process of negotiating a new contract. They
protested that International Representative Amgamiro
"Jimmy" Diaz had selected nurse Vivian Ortiz to represent
them as their delegate in the negotiations, although Ortiz
was a relatively new employee who worked on the night
shift and allegedly was not familiar with the views of most
of the employees. The employees requested a meeting of all
interested parties, including the employees' attorney.
Anduze replied that she had no authority to request such a
meeting, and that she could not stop checkoff of Local 462
dues until appropriate notice was received from the Board.
Once again the employees took action, but this time they
utilized a greater degree of professional assistance. Their
attorney prepared a petition, addressed to the Hospital,
stating that as of September 17 they were withdrawing
authority from Local 462 to represent them and from the
Hospital to deduct dues, that they requested that no
contract be negotiated, and that the Hospital would be
responsible for the consequences if negotiations continued.
This time, carbon copies were attached to the document.
On September 17 nurse Diaz, with the assistance of other
employees, solicited and obtained the signatures of 72 unit
employees on the petition; i.e., a majority of the employees
in the unit. Diaz brought the petition to Anduze's
secretary. On September 22 Anduze turned over the
petition to the Hospital's attorney. The Hospital never
questioned the authenticity of the petition. Indeed, An-
duze's transmittal memo conceded that fact. Anduze
informed Hospital attorney Rodriguez that the petition was
a list of O.P.E.I. nurses' signatures, and was "self-explana-
2 All dates herein are in 1976 unless otherwise indicated.
a This explains the hopelessly inconsistent testimony of Diaz, who was
attempting to conceal what she had done, and further explains why
Gonzales and nurse Juana Vasquz Cora, who had both signed the original
letter, were unable to identify their signatures on the substitute. In fact, the
Hospital never doubted the authenticity of the original, and Hospital
counsel conceded that the substitute corresponded to the original. General
Counsel presented the substitute in evidence. The Hospital had the original
in its possession at the present hearing, but did not offer it into evidence,
thereby impliedly conceding its authenticity.
601
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tory." The Hospital's attorney conceded at the present
hearing that the Hospital was not questioning the validity
of the signatures, but was simply raising a question as to
the legal significance of the petition.4 Nevertheless, despite
the petition and the subsequent protests of nurse Juana
Vasquz Cora, who complained to Anduze's successor,
William Torruellas Muniz, the Hospital continued to
negotiate and on September 30 executed a new 3-year
contract with Local 462. Indeed, Torruellas conceded to
her that Local 462 was violating the employees' rights. The
new contract contained a more stringent union-security
clause than the 1973 contract, and likewise provided for
checkoff of union dues and initiation fees. The Hospital
continued to deduct dues from the employees' paychecks;
however, in view of the outstanding charge, the Hospital
placed such moneys in an escrow account rather than turn
the money over to the Union. In all other respects, the
Hospital has continued to maintain and give effect to the
contract.
B. Concluding Findings
Upon the foregoing facts, I find that the Hospital
continued to negotiate and thereafter executed, main-
tained, and enforced the new contract, notwithstanding
that it knew that Local 462 no longer represented a
majority of the employees in the bargaining unit. There-
fore, the Hospital violated Section 8(a)(1) and (2) of the
Act; and, as the contract contained a union-security clause,
the Hospital further violated Section 8(aX3) of the Act.
Pepsi Cola Bottling Company, 187 NLRB 15, 19 (1970),
enfd. 454 F.2d 5 (C.A. 6, 1972); Hart Motor Express, Inc.,
164 NLRB 382, 385 (1967); Kenrich Petrochemicals, Inc.,
149 NLRB 910, 911 (1964). As Local 462 is not named as a
Respondent in this case, it is immaterial whether Local 462
knew that it no longer represented a majority of the
Hospital's employees at the time it executed the contract.
The Hospital contends that it was privileged to execute the
new contract because Local 462's representative status was
not challenged during the 90- to 120-day period preceding
the expiration of the 1973 contract. The difficulty with this
contention is that the Board, with court approval, has held
otherwise. The foregoing decisions do not, as argued by the
Hospital, involve an application of the Board's Midwest
Piping doctrine (63 NLRB 1060 (1945)). Rather, as held by
the Board and the court in Pepsi Cola, supra, the decisions
involve an application of the principle enunciated by the
Supreme Court in International Ladies' Garment Workers'
Union [Bernhard-Altmann] v. N.L.R.B., 366 U.S. 731
(1961), that an employer, even when acting in good faith,
violates the Act by executing a collective-bargaining
contract with a union which does not represent a majority
of his employees.
4 Furthermore, the Hospital did not present any affirmative testimony or
documentary evidence in derogation of the validity of the petition, but
substantially limited itself to cross-examination of General Counsel's
CONCLUSIONS OF LAW
1. The Hospital is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 462 and U.E.H. are labor organizations within
the meaning of Section 2(5) of the Act.
3. By recognizing Local 462 as the sole bargaining
representative of its licensed practical nurses and techni-
cians and by executing a contract with Local 462 covering
such employees at a time when Local 462 did not represent
a majority of such employees, and by maintaining such
contract in effect, the Hospital has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) and (2) of the Act.
4. By including in such contract a union-security
clause, the Hospital has violated Section 8(a)(1), (2), and
(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Hospital violated Section 8(aXl),
(2), and (3) of the Act, I shall recommend that it be
required to cease and desist from such violations and take
certain affirmative action designed to effectuate the
policies of the Act.
It will be recommended that the Hospital be ordered to
withdraw all recognition from Local 462 as the representa-
tive of its practical nurses and technicians, unless and until
Local 462 shall have demonstrated its majority status
pursuant to a Board-conducted election among the
Hospital's employees. It will also be recommended that the
Hospital be ordered to cease giving force and effect to its
contract with Local 462, executed on September 30, 1976,
or any renewal, modification, or extension thereof. It will
also be recommended that the Hospital be ordered to
reimburse all present and former employees for all
initiation fees, dues, or other moneys paid or withheld from
employees' wages pursuant to the union-security clause in
that contract, or in any extension, renewal modification, or
supplement thereof, or in any superseding agreement, with
interest thereon at 6 percent per annum. Nothing con-
tained herein shall be construed as requiring the Hospital
to vary the wages, hours, seniority, or other substantive
terms of employment which the Hospital has established in
the performance of said contract, or to prejudice the
assertion by its employees of any right that they may have
thereunder.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
witnesses. In light of the foregoing evidence and admissions by the Hospital,
it was unnecessary for General Counsel to present further evidence
concerning the validity of the petition.
602
PRESBYTERIAN COMMUNITY HOSPITAL
ORDER 5
The Respondent, Presbyterian Community Hospital, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Recognizing Office and Professional Employees
International Union, Local 462, AFL-CIO, as the exclu-
sive collective-bargaining representative of its licensed
practical nurses and technicians, unless and until said
Local 462 demonstrates its majority status in a Board-
conducted election among such employees in an appropri-
ate unit.
(b) Giving effect to its collective-bargaining contract
with said Local 462 executed on September 30, 1976, or
any renewal, extension, or modification thereof; provided,
however, that nothing herein shall be deemed to require
Respondent to vary or abandon any wage, hour, seniority,
or other substantive terms of employment established
under such contract, or to prejudice the assertion by
employees of any rights they may has, thereunder.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
I 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 findings,
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.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Reimburse all present and former employees for all
initiation fees, dues, or other moneys paid or withheld
pursuant to the contract executed on September 30, 1976,
or any extension, renewal, modification, or supplement
thereof, or any superseding agreement, with interest at 6
percent per annum, computed quarterly.
(b) Post at its premises in Santurce, San Juan, Puerto
Rico, copies of the attached notice marked "Appendix." 6
Copies of the notice, in English and in Spanish, on forms
provided by the Regional Director for Region 24, after
being duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, 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 24, in
writing, within 20 days from the date of this Order, what
steps 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
603