Queen of the Valley Hospital

National Labor Relations Board - Board Decisions

Mar 14, 1995

316 N.L.R.B. 721 (N.L.R.B. 1995)

721
316 NLRB No. 125
QUEEN OF THE VALLEY HOSPITAL
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. 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 affirming the judge’s
findings, however, we do not rely on his use of the adverse inference
rule. That rule applies only when a party fails to call a witness who
may reasonably be assumed to be favorably disposed to the party.
International Automated Machines, 285 NLRB 1122, 1123 (1987).
Here, however, the witnesses the General Counsel failed to call were
employees who were present when alleged unlawful conduct oc-
curred. These employees may not reasonably be assumed to be fa-
vorably disposed to any party in this proceeding. Accordingly, an
adverse inference may not properly be drawn from the General
Counsel’s failure to call them. However, the judge may properly
consider the failure to call an identified potentially corroborating
witness as a factor in determining whether the General Counsel has
established by a preponderance of the evidence that a violation has
occurred. Cf. Blue Flash Express, 109 NLRB 591, 592 (1954). The
judge explicitly used this approach in determining whether other vio-
lations were established. We find this analysis implicitly underlies
the judge’s determination of credibility in the case where he made
reference to the adverse inference rule and it is on this ground alone
that we affirm his credibility resolutions.
2 No exceptions were filed to the judge’s dismissal of the allega-
tions contained in pars. 15, 17, and 23 and we adopt those judge’s
findings pro forma.
3 Chairman Gould has no quarrel with the major portion of Mem-
ber Truesdale’s dissent which is addressed to the lawfulness of the
Respondent’s May 17, 1990 announcement. If he found it necessary
to reach the allegation that the announcement was unlawful, he
would decide the issue as Member Truesdale has done. Chairman
Gould’s only disagreement with his colleague is over whether it is
necessary to reach the issue. For the reasons stated below, he does
not think it is necessary because he finds that the parties essentially
settled this issue when the Union informed the Regional Director for
Region 20 that it waived its right to contest the lawfulness of the
Respondent’s conduct concerning the July increases and the Re-
spondent then announced to the unit employees that the increases
would be given in July.
Member Stephens does not reach the issue whether the May 17
announcement was an unfair labor practice, but agrees, for the rea-
sons set out below, that the Union had clearly agreed to forgo filing
charges over the matter.
Queen of the Valley Hospital, Napa Valley Medical
Center, a Sisters of St. Joseph of Orange Cor-
poration and California Nurses Association and
Hospital and Health Care Workers Union
Local 250, Service Employees International
Union, AFL–CIO
Queen of the Valley Hospital, Napa Valley Medical
Center, a Sisters of St. Joseph of Orange Cor-
poration and California Nurses Association, Pe-
titioner. Cases 20–CA–23684, 20–CA–23685, and
20–RC–16612
March 14, 1995
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On May 28, 1993, Administrative Law Judge James
S. Jenson issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings,1 findings, and con-
clusions2 and to adopt the recommended Order.
We agree with the judge’s dismissal of the allega-
tion that the Respondent unlawfully threatened to with-
hold wage increases for employees covered by the rep-
resentation petition filed by the California Nurses As-
sociation. Regardless of whether the May 17, 1990 let-
ter announcing the intention to withhold the increases
was lawful, we find that the Union waived its right to
protest the threat to withhold the increases when it
agreed not to file any unfair labor practice charge or
objection to the results of a future election concerning
the increases.3 The Union asked the Respondent to go
forward with the increases. The Respondent agreed to
do so if the Union agreed not to file unfair labor prac-
tices or objections alleging that the increases were un-
lawful. By letter dated June 4, 1990, the Union in-
formed the Regional Director for Region 20 that it
waived the right to file unfair labor practice charges
and election objections in connection with the Re-
spondent’s implementation of a pay raise. The letter
began by stating:
The purpose of this letter is to inform you that
the California Nurses Association will not file and
is expressly waiving any future right to file with
the NLRB l.) any unfair labor practice charge in
connection with the Hospital’s general implemen-
tation of an ‘‘up to 5% raise on July 1, 1990; and
2.) any objection to the results of any future elec-
tion in connection with the general implementa-
tion of an ‘‘up to’’ 5% pay raise on July 1, 1990.
The last paragraph of the letter contained the follow-
ing statements:
The Hospital claims it would have given an
‘‘up to’’ 5% raise except for the legal restrictions
placed on it by the filing of the CNA petition for
an election. It has implied that it would be an un-
fair labor practice to do so. CNA’s position is the
reverse: this raise is part of the regular annual
budget process and to fail to implement it, simply
because a petition has been filed, would be an un-
fair labor practice. However, our goal is not to
play word games and so we are formally notifying
the NLRB of our intent to waive our right to file
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of exceptions, I would adopt pro forma the
judge’s determination that the Union’s election objections should be
overruled. Accordingly, I agree with my colleagues that a certifi-
cation of results should issue. I agree with my colleagues that the
Respondent did not independently violate Sec. 8(a)(1) by requesting
a waiver of CNA’s right to file charges with the Board as a condi-
tion of granting the wage increase to unit employees. In addition to
the reasons given by the judge in recommending that this allegation
be dismissed, I would also rely on the fact that CNA volunteered
to refrain from filing a charge prior to any mention of this issue by
the Respondent, and the absence of evidence that employees were
aware of the parties’ communications in this regard.
2 This increase had been determined during the course of the Re-
spondent’s annual budget process, which began the preceding fall.
At that time, the Respondent determined that it needed to do ‘‘some-
thing more’’ regarding wages, especially for nurses, than it had in
the 2 years immediately preceding fiscal year 1991. The Respondent
first became aware of the CNA’s organizing efforts in late January
or early February 1990.
an unfair labor practice, as described in paragraph
one.
After receipt of the Union’s June 4, 1990 letter
agreeing to waive the filing of unfair labor practices or
objections in connection with the increases, the Re-
spondent announced June 6, 1990, that the increases
would go into effect and would be reflected in the em-
ployees’ July 5, 1990 paychecks.
Essentially, the parties’ action constituted a settle-
ment of the issue. In this regard, we disagree with our
dissenting colleague’s view that the Union’s June 4,
1990 letter was not a ‘‘clear and unmistakable’’ waiver
of the right to file unfair labor practice charges regard-
ing the Respondent’s May 17 announcement that it
would not grant July increases. It was the May 17 an-
nouncement that prompted the Union to ask the Re-
spondent to go forward with the increases. When the
Respondent asked that it be assured that the Union
would not file charges if increases were granted, the
Union informed the Regional Director for Region 20
that it was ‘‘expressly waiving’’ the right to file
charges in connection with the Hospital’s ‘‘general im-
plementation’’ of increases in July. The Union also in-
formed the Regional Director that it disagreed with the
Respondent’s claim that it would have given the in-
creases but for the legal restrictions placed on it by the
Union’s filing of the representation petition. The Re-
spondent’s claim was set forth in its May 17 an-
nouncement. Thus, the Union specifically referred to
the legal issue raised by the Respondent’s May 17 an-
nouncement and informed the Regional Director that
despite its opposition to the Respondent’s position on
the issue the Union was waiving its right to file
charges. Contrary to our dissenting colleague, we find
this evinces a clear and unmistakable waiver of the
right to file charges concerning the May 17 announce-
ment. Indeed, to hold otherwise would permit the
Union, contrary to what it said its goal was, ‘‘to play
word games.’’ For these reasons, we agree with the
judge’s dismissal of the complaint allegation concern-
ing the threat to withhold increases.
On October 18, 1990, an election was held in Case
20–RC–16612 pursuant to the Regional Director’s de-
cision directing an election. The tally of ballots shows
143 for and 162 against the Petitioner with 11 chal-
lenged ballots, an insufficient number to affect the re-
sults. No exceptions were filed to the judge’s rec-
ommendation that the Petitioner’s outstanding objec-
tions be overruled and that an appropriate certification
be issued. Accordingly, the Board adopts, pro forma,
in the absence of exceptions, the judge’s recommenda-
tion and issues the appropriate certification below.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for California Nurses Association
and that it is not the exclusive representative of the
bargaining unit employees in Case 20–RC–16612.
MEMBER TRUESDALE, dissenting in part.
Contrary to my colleagues, I would find that the Re-
spondent’s May 17, 1990 announcement that unit em-
ployees would not be eligible for the wage increase
scheduled for July 1, 1990, for all other employees,
because of the pending election petition, violated Sec-
tion 8(a)(1). In my view, the Respondent’s announce-
ment was clearly unlawful, as it placed the onus for
the wage increase denial on the Union. Further, I re-
spectfully disagree with my colleagues’ finding that
the Union waived its right to file unfair labor practice
charges regarding this matter.1
The following facts are not disputed. On April 5,
1990, the California Nurses Association (CNA) filed a
petition seeking to represent the Respondent’s reg-
istered nurses and health professionals. On May 17,
1990, the Respondent announced in a memorandum to
all employees that, pursuant to its budget for the fiscal
year ending June 30, 1991, ‘‘all employees except
those who may be included in the CNA petition will
be eligible to receive up to a 5% increase effective
July 1, 1990.’’2 The memorandum also stated that
‘‘[w]e have been advised that because of the petition
filed with the NLRB by the nurses’ union, CNA, we
will not be able to put the July 1 wage increase into
effect for any employee who may be covered by the
petition.’’
By letter dated May 22, 1990, CNA advised the Re-
spondent that the Union did not object to an ‘‘up to
5%’’ increase and that ‘‘[w]e have no intention, if this
is your concern, of filing an Unfair Labor Practice
Charge with the National Labor Relations Board
should an ‘up to’ 5% increase be implemented.’’ The
723QUEEN OF THE VALLEY HOSPITAL
Respondent replied, in a letter dated May 24, 1990,
that it
would have granted a July 1, 1990 increase to its
nurses except for the legal restrictions placed on
the Hospital by the filing of your petition. If your
organization is truly willing to remove itself as an
obstacle to the granting of that increase, you will
need to provide the National Labor Relations
Board with a written statement that your organiza-
tion will not file and is expressly waiving any fu-
ture right to file with the NLRB (1) any unfair
labor practice charge and (2) any objection to the
results of any future election in connection with
the granting of this wage increase.
On June 4, 1990, the CNA wrote to the Regional
Director for Region 20 that it waived its rights to file
charges or objections in connection with the Hospital’s
general implementation of an ‘‘‘up to’ 5% raise on
July 1, 1990.’’ On June 6, 1990, the Respondent ad-
vised the nurses that they would receive the scheduled
increase after all. This notice stated that ‘‘it is our nor-
mal practice following our annual budget review and
approval process to announce to our staff the specifics
of the new information regarding wage increases
and/or adjustments. Today, we received guidance from
our legal counsel that we can proceed with our normal
practice.’’
The Board has consistently found that an employer
must proceed with an expected wage increase or bene-
fit adjustment as if the union were not on the scene.
Atlantic Forest Products, 282 NLRB 855, 858 (1987).
An exception to this rule is that an employer may post-
pone wage or benefit adjustments during an organiza-
tional campaign; however, this exception is available
only if the employer makes clear to employees that the
adjustment would occur whether or not they select a
union, and that the sole purpose of the postponement
is to avoid the appearance of influencing the election’s
outcome. Id.; see also Uarco, Inc., 169 NLRB 1153,
1154 (1968). In making such announcements, more-
over, the employer must avoid attributing to the union
the onus for the postponement in wage or benefit ad-
justments, or disparaging and undermining the union
by creating the impression that it stands in the way of
the employees receiving the scheduled wage or benefit
increase. Id.
Applying these principles, I would find that the Re-
spondent unlawfully attributed to the Union the with-
holding of the scheduled July 1, 1990 wage increase.
In this regard, it is undisputed that, prior to the advent
of the Union, the Respondent had planned to grant all
employees—including those in the petitioned-for
unit—a wage increase for fiscal year 1991. Indeed, the
Respondent’s management team had, by its own ad-
mission, concluded that a substantial wage increase for
nurses was particularly important to its ability to attract
and retain qualified personnel. Its subsequent an-
nouncement that everyone but the petitioned-for em-
ployees would get a wage increase contains none of
the safeguards which the Board has consistently re-
quired. Thus, the May 17 memorandum did not state
that the wage increase was merely being postponed re-
garding the nurses and health professionals, or that the
sole purpose of such postponement was to avoid the
appearance of influencing the outcome of the upcom-
ing election; rather, the memorandum’s flat statement
that the increase would not be put into effect for these
individuals would reasonably tend to create the impres-
sion that no increase would be forthcoming as a result
of the CNA’s petition. See Atlantic Forest Products,
supra at 858 (statement that in view of election objec-
tions ‘‘we cannot say what increase there will be’’ un-
lawful). Moreover, by linking these employees’ exclu-
sion from the general wage increase to the CNA’s fil-
ing of the petition, the Respondent placed on the CNA
the onus for withholding the increase. See LRM Pack-
aging, 308 NLRB 829 (1992).
Contrary to my colleagues, I would not find that the
Union waived its right to file charges regarding the
May 17 memorandum. In my view, a waiver of statu-
tory rights of this nature must be ‘‘clear and unmistak-
able.’’ Cf. Northern Pacific Sealcoating, 309 NLRB
759 (1992) (clear and unmistakable waiver of employ-
er’s right to file election petition). In this regard, I note
that the letter to Region 20 which the Respondent ex-
tracted from the CNA by the above unlawful an-
nouncement and asserted by the Respondent to con-
stitute a waiver of the Union’s statutory right to file
charges concerning its conduct, states only that the
CNA waives any right to file charges regarding the
‘‘general implementation of an ‘up to’ 5% raise on
July 1, 1990.’’ There is no mention in the CNA’s letter
of the Respondent’s prior announcement that that raise
would only be granted to employees whom CNA was
not seeking to represent, let alone a ‘‘clear and unmis-
takable’’ waiver of the right to file charges regarding
that announcement.
Boren Chertkov, Esq., for the General Counsel.
J. Mark Montobbio and Philip L. Ross (Proskauer, Rose,
Goetz & Mendelsohn), of San Francisco, California, for
the Respondent.
Janet Sass-McDermott, of Sacramento, California, for Cali-
fornia Nurses Association.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. I heard this
matter in Napa, California, on December 3–6 and 9, 1991.
The charge in Case 20–CA–23684 was filed on October 25,
1990, by California Nurses Association (CNA) and the
charge in Case 20–CA–23685 was filed on October 26,
1990, by Hospital and Health Care Workers Union Local
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates hereinafter are in 1991 unless stated to the contrary.
250, Service Employees International Union, AFL–CIO
(Local 250). On March 29, 1991, the Acting Regional Direc-
tor for Region 20 issued an order consolidating the two cases
and a consolidated complaint. On October 24, 1991, the Re-
gional Director for Region 20 issued a supplemental decision
on objections to the election in Case 20–RC–16612 and or-
dered the three matters consolidated for hearing. The consoli-
dated complaint, which was amended both prior to and at the
hearing, alleges numerous 8(a)(1) violations. The objections
to the election in Case 20–RC–16612 relate to certain allega-
tions in the consolidated complaint. The Respondent denies
it engaged in any unfair labor practices or objectionable elec-
tion conduct.
All parties were given full opportunity to appear, to intro-
duce evidence, to examine and cross-examine witnesses, to
argue orally, and to file briefs. The General Counsel and Re-
spondent filed briefs, both of which have been carefully con-
sidered.
On the entire record in the matters, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Queen of the Valley Hospital, Napa Valley Medical Cen-
ter, a Sisters of St. Joseph of Orange Corporation, is engaged
in the operation of a hospital providing inpatient and out-
patient medical and professional care services for the public
in Napa, California. Its gross revenues exceed $250,000 per
year and it annually purchases and receives goods in excess
of $5000 which originate from points outside the State of
California. It was admitted and is found that at all times ma-
terial, it has been 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.
II. THE LABOR ORGANIZATION INVOLVED
California Nurses Association and Hospital and Health
Care Workers Union Local 250, Service Employees Inter-
national Union, AFL–CIO, each is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. CREDIBILITY
As in most 8(a)(1) violations and hearings on objections
to elections, credibility is a critical issue, the record revealing
considerable conflict between the witnesses who testified on
behalf of the General Counsel and those testifying on behalf
of Respondent. In addition to the demeanor of the witnesses
while they were testifying, I have considered other factors
such as their ability to recall past conversations or events, the
consistency or inconsistency of their testimony when it is
considered in the context of other testimony, documentary
evidence, and matters not in dispute, which version appears
to be more logical in the circumstances, the various positions
occupied by the witnesses and their possible bias and/or in-
terest in the outcome, and whether witnesses were called to
either corroborate or refute another witness’ testimony in
those instances where the record shows there were more per-
sons present than the two presenting conflicting testimony.
Having the burden of proving a violation of the Act, the
General Counsel was incumbent to either call them to cor-
roborate his witnesses, to refute Respondent’s witnesses, or
to explain why they were not called as witnesses.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. An Overview
The Respondent operates a hospital providing inpatient
and outpatient care in Napa, California. The record shows
that in October or November 1989, CNA commenced orga-
nizing activities among Respondent’s nurses and other pro-
fessional employees. Having learned of the organizing activi-
ties in late January or early February 1990, on February 15,
Respondent’s president, Sister Ann McGuinn, directed a let-
ter to all registered nurses expressing opposition to the CNA.
The General Counsel does not allege the letter contained any
unlawful statements. On April 5, 1990, CNA filed its initial
representation petition in Case 20–RC–16612 seeking certifi-
cation as the representative of all registered nurses and health
professionals. On April 30, 1990, Local 250 advised Re-
spondent’s president that it also was engaging in organizing
efforts, and on August 8, filed a representation petition. Fol-
lowing a hearing on the CNA petition, on September 19, the
Regional Director issued a decision directing an election in
an appropriate collective-bargaining unit. The election was
held on October 18, which CNA lost by a vote of 143 to
162 with 11 challenged ballots. Thereafter, CNA filed the
charge in Case 20–CA–23684 and timely objections to the
election which were later consolidated for hearing. On Octo-
ber 4, 1990, the Regional Director issued a decision directing
an election in the unit sought by Local 250. On October 26,
1990, Local 250 filed the charge in Case 20–CA–23685,
which had the effect of blocking the election scheduled for
November 1. On March 29, 1991,1 the consolidated com-
plaint issued and was amended on April 26. On May 29,
Local 250 filed a request to proceed with the election in the
unit covered by its petition. The election was held on June
26, which the Union lost by a vote of 175 to 341. No objec-
tions to the election were filed and a certification of election
results issued.
At the conclusion of his case-in-chief, the General Counsel
withdrew the allegations in the following paragraphs of the
complaint: 9(a) and (b); 10; 13; 14(a) and (b); 18(a), (b), and
(c); and 22 insofar as it involved conduct alleged to have oc-
curred by Hyatt Holt, Sister Ann McGuinn, and Beth Lin-
coln. At that time CNA also withdrew objections to the elec-
tion numbers 3, 7, and 8.
B. The Alleged 8(a)(1) Statements and Conduct
All of the acts and conduct alleged in the complaint to be
unlawful span the period from May 17, 1990, through Janu-
ary 1, 1991, which was after the Respondent had knowledge
of the organizing activities of both CNA and Local 250. Sis-
ter Ann McGuinn (Sister Ann) is Respondent’s president and
CEO; Hyatt Holt is the vice president of human resources;
David Ellis is a night-shift supervisor; Patrick Odell is an
outpatient laboratory supervisor; Robert Carey is the director
of respiratory therapy; Beverly Dunbar is director of medical
records; Laura Brenneman is vice president of patient care
725QUEEN OF THE VALLEY HOSPITAL
2 The Healthy Moms and Babies program and dental clinic are
services provided to the community and supported by outside grants
and Government funds and cosponsored by several organizations
such as the county of Napa, Kaiser Clinic, and Respondent. A few
of Respondent’s employees work in the programs on a volunteer
basis.
3 The cards from which she spoke are in the record as R. Exh. 36.
4 CNA’s unfair labor practice charge was filed on October 25,
1990, and Local 250s the following day.
5 Clinic Ole is a community clinic in Yountville, a nearby town,
to which Respondent contributes some services but no financial con-
tribution.
services; Kathleen Adams is administrative director of oper-
ations for patient care; and Dana Stone and Marilyn Majors
are both cardiac unit charge nurses. All the above are alleged
and admitted to be Respondent’s supervisors and agents.
Paragraph 7(c) of the complaint alleges that in August
1990, Sister Ann threatened employees that Respondent
would eliminate certain programs offered to the general pub-
lic and impliedly threatened employees with a job loss and/or
a loss of work opportunities. Elizabeth Thompson, an orga-
nizer and open supporter of CNA from the beginning, testi-
fied she attended a meeting in August 1990 along with 10
or 15 other employees in which Sister Ann, reading from
note cards, told those present that ‘‘if the union was elected
into the hospital, that they would have to do away . . . with
Healthy Mom and Babies program, the dental program for
the underprivileged, and I believe she named some other pro-
grams that I can’t remember. But they would have to stop.’’
She also claimed she asked why but that her question was
not answered.2 The General Counsel called no other wit-
nesses regarding this allegation.
Sister Ann testified that she held a series of eight or nine
meetings with employees in August 1990, for the purpose of
discussing the hospital’s mission and philosophy as it related
to health care. She testified that she spoke from a series of
index cards which she had prepared. Brenneman, who had
been hired recently, was present at all the meetings since she
was a recent hire, some of the employees had not met her
yet and Sister Ann wanted to show her support for
Brenneman. She testified she told each group that she was
not there to talk about the Union, but to talk about the mis-
sion of the hospital, values, the care they wanted to render
to their patients, the programs such as Healthy Moms and
Babies and the community dental clinic which the hospital
supported, and the fact that outside pressures related to fund-
ing made the mission difficult, but that it would be carried
out ‘‘no matter what would happen.’’ She specifically denied
Thompson’s claim that she said programs such as Healthy
Moms and Babies and the dental clinic would be closed if
the Union were elected.3 Brenneman corroborated Sister
Ann’s testimony and denied Thompson’s claim that Sister
Ann or anyone else said the hospital would close any of its
programs if the Union came in. I credit the testimony of Sis-
ter Ann and Brenneman, and noting that the General Counsel
failed to call any other witness to either corroborate Thomp-
son’s testimony or refute that of Sister Ann and Brenneman,
find that the General Counsel has failed to establish by a pre-
ponderance of the evidence that the Respondent engaged in
the conduct alleged in paragraph 7(c) of the complaint and
recommend its dismissal.
Paragraph 8(a) alleges that on two unknown dates in or
about October 1990, Sister Ann and/or Adams, threatened
employees it would eliminate certain programs offered to the
general public and impliedly threatened a job loss and/or loss
of work opportunities if the employees selected CNA and/or
Local 250 as their bargaining representative. Paragraph 8(b)
alleges that Sister Ann and/or Adams told employees in Oc-
tober that filing unfair labor practice charges was an attack
on Respondent and its managers.
Michael Derby, a respiratory therapist that has since left
Respondent’s employ, was active on behalf of both CNA and
Local 250. He testified that he attended a meeting in late Oc-
tober 1990 along with 8 to 10 other employees, 2 unknown
supervisors, and Sister Ann. He testified that Sister Ann
spoke from cards about the hospital’s position on ‘‘the
union’s decision to file some charges against the hospital’’
at which point she looked up from the cards that she was
reading and said that ‘‘she felt attacked personally by what
had happened. And that this in effect was also attacking the
hospital. And that it was also attacking the people who
worked in the hospital.’’ He testified Sister Ann rose from
her seat and reiterated the above feelings and then went to
the back of the room.4 He went on to testify that one of the
two unidentified supervisors, one of whom he tentatively
identified as Adams, presented a chart regarding union dues
and how much the Union was spending on consultation fees.
The other supervisor, he claimed, talked about the mission of
the hospital and that it would not be able to carry it out if
the Union was allowed to come into the hospital, mentioning
‘‘Clinic Ole,5 Healthy Moms and Babies and a dental pro-
gram that was set up at the hospital at the time,’’ also, the
hospital would not have enough money for projects such as
the linear accelerator and MRI; that similar future projects
would not be possible ‘‘because it would cost a lot of money
to have the union in the hospital.’’ He claimed that Sister
Ann indicated agreement with what was said by nodding her
head affirmatively. Sister Ann testified that she held a num-
ber of meetings with employees in late October and that she
read from a prepared text, Respondent’s Exhibit 35, attached
hereto as Appendix A, from which she did not deviate. She
denied she read from note cards as Derby claimed, that she
went to the back of the room after making her presentation,
or that any of the supervisors stated that if the Union came
in the hospital would not be able to afford its mission works
such as Clinic Ole, Healthy Moms and Babies, and the dental
clinic, or not be able to go forward with the linear accelera-
tor and MRI. Sister Ann’s testimony was corroborated by
Brenneman. While Derby identified other employees present
at the meeting, none were called to either corroborate his tes-
timony or refute that of Sister Ann or Brenneman. I credit
the latter two, find that the General Counsel has failed to
prove by a preponderance of the evidence the allegations
contained in complaint paragraphs 8(a) and (b) and rec-
ommend their dismissal.
Paragraph 11(a) alleges that on an unknown date in July
1990, Odell threatened that Respondent would close the out-
patient laboratory if Local 250 won the election.
Christine Adams, a phlebotomist in the outpatient lab and
an active organizer for Local 250, testified that in July, Odell
brought some prohospital literature into the phlebotomist
room and mentioned that those in the room, Adams, Alona
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Adams acknowledged on cross-examination that Local 250 had
filed an unfair labor practice charge on her behalf against Respond-
ent alleging she was being discriminated against. Following inves-
tigation by the Regional Office, the charge was dismissed. The dis-
missal was sustained on appeal.
7 G.C. Br. at pp. 39 and 43.
8 The basis for the ‘‘interrogation’’ alleged to have occurred in
September 1990 in par. 11(b) per G.C. Br. at p. 43.
9 The basis for the prohibition against union-related solicitations
and distributions alleged to have occurred in July 1990 in par. 22
per G.C. Br. at pp. 39–40.
Valencia, and Cathy Gillen, should read it.6 According to
Adams, the three women talked to Odell about the fact they
were not working ‘‘strictly as phlebotomists’’ and felt they
were not being paid for the variety of other duties they were
performing. His response, according to Adams, was ‘‘that we
were very flexible where we were at, as a phlebotomist. And
if the union came in, we wouldn’t be able to keep operating,
because they couldn’t afford the wages to hire strictly as a
phlebotomist, doing drawing blood only. And the lab would
eventually close because of that.’’ She claimed that on an-
other occasion, near the water fountain, she asked Odell if
it was really true ‘‘that the lab will close down because of
union activity . . . if the union was voted in, would we lose
our jobs because of this? He said yes, because the flexibility,
as a phlebotomist, without the union here.’’ Odell admitted
having commented on the subject of flexibility in connection
with a union contract. He testified ‘‘the gist of the comments
was that I had had experiences working in business that were
under union contracts, and that in my experience . . . the
jobs were very rigidly defined, they were very specific in
terms of duties under the contract. And, that due to my expe-
riences, I had some concerns that under a union contract the
outpatient laboratory, in terms of jobs, might lose some flexi-
bility.’’ He denied specifically saying anything about closing
the outpatient lab at that time or that he later responded to
a question by her that the facility would close if the Union
came in. Any doubt as to which of the two, Adams or Odell,
was not telling the truth could have been dispelled had the
General Counsel called either Alona Valencia or Cathy
Gillen as a witness. An inference adverse to the party who
fails to call witnesses otherwise available to it, or neglects
to explain the failure to call such witnesses, has been estab-
lished law since the early days of the Board. Freuhauf Trail-
er Co., 1 NLRB 68 (1935), revd. 85 F.2d 391 (6th Cir.
1936), 301 U.S. 49 (1937), reversing circuit and enforcing
the Board. Accordingly, it is found that the General Counsel
has failed to establish by a preponderance of the evidence
that the Respondent engaged in the unlawful conduct alleged
in paragraph 11(a) and its dismissal is recommended.
Paragraph 11(b) alleges that in September, Odell interro-
gated employees regarding their union activities and/or sym-
pathies, and paragraph 22 alleges, in part, that in July, Odell
prohibited union-related solicitations and distributions at Re-
spondent’s facility. In his brief the General Counsel argues
that both allegations relate to a single incident, the removal
of a union button from a bulletin board, which he places in
September for the purposes of paragraph 11(b) and in July
for the purposes of paragraph 22.7 The General Counsel
again relies on the testimony of Christina Adams to support
these allegations. She testified that after a ‘‘prounion’’ button
had been posted on the bulletin board for a couple of days,
Odell came in and said, ‘‘What is this doing here?8 It cannot
be here . . . it was soliciting’’ after which ‘‘he took it off
the board and took it off the counter.’’9 She testified that
Alona Valencia and Cathy Gillen were present and that ‘‘it
was kind of our personal board’’ and had been used for post-
ing restaurant menus, fundraisers, party notices, and other
notes. On cross-examination, she acknowledged she had
worn both a Local 250 button and a red ribbon signifying
support for Local 250 up until the time of the election which
was on June 26, 1991, that other employees wore red ribbons
in support of Local 250, that employees wore ribbons and
buttons in support of CNA, and yellow ribbons signifying the
employee was not for a union. There was also testimony that
some employees wore a red, white, and blue ribbon signify-
ing ‘‘freedom of choice.’’ Odell admitted that he had re-
moved a union button from the bulletin board and that he
said something to the effect that it should not be there; that
there are about four bulletin boards in the area; and that he
had never seen anything posted on the bulletin boards that
was not official hospital material except on one occasion
when someone had brought from home a child’s finger-
painting. He testified that a number of employees wore union
buttons and ribbons and denied asking anyone to remove
them. In determining who to believe, Adams or Odell, I
again note that Adams claimed both Alona Valencia and
Cathy Gillen were present, yet neither was called to corrobo-
rate her testimony or to refute Odell’s that the bulletin boards
were used only for official hospital postings. Further, it is
clear that union buttons and ribbons were worn throughout
the periods leading up to both elections without impunity. It
is further clear that in these circumstances the removal of a
Local 250 union button from a bulletin board on a single oc-
casion approximately 1 year prior to the election neither had
the effect of interfering with, restraining, or coercing em-
ployees in the rights guaranteed them in Section 7 of the
Act. Accordingly, I find that the General Counsel failed to
prove by a preponderance of the evidence the allegations
contained in paragraphs 11(b) and 22 insofar as the latter al-
leges Odell engaged in any unlawful conduct and rec-
ommended their dismissal
Paragraph 22 also alleges that in October 1990, Stone and
Majors permitted nonunion-related, but prohibited union-re-
lated, solicitations and distributions. Patricia Hansen, a unit
secretary-cardiac monitor tech in a patient care area of the
hospital, testified without contradiction that during the period
from August through October 1990, prounion and and
antiunion literature would appear on the counter surrounding
her work area and that on a couple of occasions she observed
Stone and Majors pick up the union literature and throw it
away. She never saw them throw away antiunion literature,
nor did she identify who placed it there, what happened to
it, or whether Stone or Majors knew it was there. She also
testified without contradiction that around Halloween, Majors
left a plate of cookies on the counter, that an unidentified
employee also left a plastic pumpkin filled with candy, and
that an unidentified person left a brown paper bag containing
candy which had a ‘‘Union Yes’’ sticker on the outside
which was covered by a Halloween poem. The other items
displayed no prounion or antiunion literature. After half an
hour or more Stone and another individual picked up the
727QUEEN OF THE VALLEY HOSPITAL
10 It is clear from Hansen’s testimony that these events occurred
in a patient care area.
11 The record also shows that Local 250 filed an unfair labor prac-
tice charge against Respondent involving a claim by Rhude, which
was dismissed.
bag, observed the ‘‘Union Yes’’ sticker, dumped the candy
onto a plate and threw away the bag with the sticker. She
acknowledged that union buttons and ribbons were worn
openly throughout both election periods without incident.
Hansen also testified that catalogs for products such as Avon
and Tupperware were left on the counter as well as candy
for sale by school children.
The General Counsel does not contend the Respondent’s
no-solicitation and no-distribution rule is unlawful, but that
it is disparately applied to allow nonunion-related material
and to prohibit union-related material. The Respondent ar-
gues that it was not shown that either Stone or Majors were
aware of any antiunion literature on the counter and there-
fore, the General Counsel failed to show disparate treatment
in connection with the enforcement of the no-
solicitation/distribution rule. Respondent further argues that it
was not shown that any agent of the hospital had knowledge
that Avon and Tupperware catalogs were left at the central
desk. Further, the removal of the paper bag with the ‘‘Union
Yes’’ sticker was permissible since it is not unlawful to pro-
hibit distributions of literature in patient care areas of a hos-
pital as was done here, citing Beth Israel Hospital v. NLRB,
437 U.S. 483 (1978); NLRB v. Baptist Hospital, 442 U.S.
773 (1979).10 Respondent also argues that even if permitting
the food and candy to remain could somehow be considered
an inconsistent application of the no-distribution rule, it was
clearly an isolated incident with no coercive implications,
and therefore insufficient to rise to a violation of the Act.
Having carefully reviewed Hansen’s testimony, I am per-
suaded that the General Counsel failed to establish disparate
treatment. Thus, while it was shown that Stone and Majors
disposed of prounion literature, it was not shown who put
antiunion literature out or that any agent of the hospital was
aware that antiunion literature was placed on the counter, or
that if Respondent’s supervisors were aware of it, that it was
not removed. Apparently the General Counsel would like me
to assume a fact not shown in the record—that agents of Re-
spondent permitted antiunion distributions and solicitations in
a patient care area while prohibiting union distributions and
solicitations. Failing to establish that by a preponderance of
the evidence in either instance, I recommend dismissal of
paragraph 22 in its entirety.
Paragraph 12 alleges that in October 1990, Dunbar interro-
gated employees about their union activities and sympathies.
Paragraph 16(a) alleges that in September or October 1990,
Dunbar disparaged employees because of their union activi-
ties and/or sympathies, and paragraph 16(b) alleges she told
employees their union activities made her so angry that she
felt like engaging in physical violence against them. Medical
transcriptionist Mary Ellen Rhude testified that around Octo-
ber she attended a meeting on health benefits along with 20
to 25 other employees over which Dunbar presided. While
she claimed Dunbar handed out a paper showing health bene-
fit costs to become effective in January, the record shows
Respondent did not find out from its actuaries until Novem-
ber that premium costs would be lower the next year. She
testified that Dunbar
asked one of the employees sitting there, and I don’t
recall her name because I was very new and I didn’t
know everyone at the time, if she had been to the union
meeting she had asked her to go to and report back
about.
And she said, no.
The employee said no, that she hadn’t been able to
go. But then Beverly Dunbar asked her if she would at-
tend the next one, which I believe was that morning,
and report back to her.
Because she said she—Ms. Dunbar said she would
love to go but couldn’t.
And that would she report back to her and tell her
what went on and what happened.
And the employee said she would.
Dunbar denied asking any employee to attend a union meet-
ing and report back to her. She testified, ‘‘We urged the em-
ployees, if they chose to do so, to attend those meetings and
share among themselves the information they heard . . . our
goal was to get the employees to understand as much of both
sides of the stories as they could so they could make . . .
informed votes.’’ While Rhude had claimed 20 to 25 other
employees were present at the meeting, and furnished spe-
cific names at the hearing, The General Counsel failed to call
any to either corroborate Rhude’s testimony or refute that of
Dunbar. In these circumstances I credit the testimony of
Dunbar, find that the General Counsel has failed to establish
by a preponderance of the evidence the allegation in para-
graph 12 of the complaint, and recommend its dismissal.
With respect to complaint paragraph 16, Rhude testified
that at the same meeting Dunbar read
two letters written by two employees of Queen of the
Valley Hospital stating how they—why they felt as
they felt about the issues that were going on. And Ms.
Dunbar read one from Don Raina in which she stated
that how dare he write a letter like that, because regard-
ing his mental status, that he had come through rehab.
That the nuns had given him a job there. And how dare
he . . . she said it made her so angry that when he
came in to deliver supplies and bent over to set them
down, that she would just like to kick him in the rear
end, she was so angry with him for writing that letter
expressing his feelings. Oh, then she said about the
other letter that whoever wrote it couldn’t even write a
proper letter. That it had typographical errors and things
like that. And sort of disclaiming the fact that it was
written by anybody who was competent to do that.
On cross-examination Rhude identified the writer of the
second letter as Mike Derby and testified Dunbar said, ‘‘That
he had written this letter stating his feelings and why he was
supportive of the union, but that look at the inconsistencies
in his punctuation and spelling and the way it was written.
That he wasn’t even capable of writing a proper letter.’’11
She testified the statements regarding Raina and Derby were
made before everybody. Dunbar testified that in a meeting in
August she mentioned Raina since she had seen his name on
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Dixon confirmed a statement taken by a Board agent that the
orientation meeting took place about a week before she started work
on August 20.
a list of steering committee members that were prounion, that
it surprised her and that she commented to the employees
that she was surprised to see his name on the list since he
had come from a vocational rehabilitation program, that the
hospital had been good to him and he had had a good job
for a good number of years. She denied she mentioned
Raina’s mental status or that she knew anything about it. Her
understanding of the vocational rehabilitation program that
he had come from was one where an individual is subsidized
until he or she acquires the skills to perform at the level ex-
pected on whatever job is involved. She denied she stated
‘‘how dare’’ he write a prounion letter, that she said she was
angry at him for writing a letter or supporting the Union, or
that she said she was so angry at him that she felt like kick-
ing him in the rear end. She also testified that the first time
she learned that a claim was being made that she had said
something disparaging or inappropriate about Raina was after
a charge had been filed and the Board’s Regional Office in-
formed her of the fact. She then initiated a call and met with
Raina to apologize for whatever he may have heard. She
stated she did not know what he had heard but it was bother-
ing her that he might be upset about it. Her testimony re-
garding the conversation was:
I said . . . that it had been brought to my attention
that I had . . . made . . . some brief comments about
him in a meeting.
I—we never asked each other what was said.
I said, Don, I didn’t know if you’d heard that or not,
and he said yes I did.
And I said, um—I want you to know that whatever
I said I’m sorry for. I, I have no intention, never have
had an intention of hurting your feelings. I wouldn’t
want your feelings to be hurt. If it’s bothering you that
you might be mis, that you might feel badly about it.
He and I had worked together for years. I think I
mentioned that. . . . And he said . . . Bev, . . . I just
considered you were probably under stress. That was
his response to me.
And I said, well, I apologize. I want you to know
I apologize. And he said that was fine or something. I
can’t remember what his response was.
Regarding Rhude’s claim that Dunbar had referred to
Mike Derby’s inability to write a proper letter since ‘‘it had
typographical errors and things like that, and sort of dis-
claiming the fact that it was written by anybody who was
competent to do that,’’ Dunbar testified Derby was a per-
sonal friend and denied she made fun of a letter he had writ-
ten, said anything derogatory about him nor made any ref-
erence to him. I note again that Rhude testified there were
20 to 25 employees present when the alleged statements by
Dunbar were made and that the General Counsel failed to
call any of them to either corroborate Rhude’s testimony or
refute Dunbar’s. Crediting Dunbar’s denial that she men-
tioned or knew anything about Raina’s mental state or said
anything about it, her denial that she stated ‘‘how dare’’ he
write a prounion letter, her denial she stated she was angry
at him for writing a letter or supporting the Union, and her
denial that she said she felt like kicking him in the rear end,
and further crediting her denial that she said anything derog-
atory about Mike Derby, it is found that the General Counsel
has failed to prove by a preponderance of the evidence the
allegations contained in paragraphs 16(a) and (b) of the com-
plaint and recommend their dismissal.
Paragraph 15 alleges that on an unknown date in or about
August 1990 ‘‘Jane Doe’’ threatened to close departments if
CNA and/or Local 250 won the election. Karen Dixon, who
worked in respiratory therapy from August 20, 1990, to
about September 13 of the same year, testified that after she
was hired, but prior to starting work, she attended an orienta-
tion meeting along with about 30 other employees that was
conducted by a blond lady who stated, ‘‘[B]asically that, if
the Union were to organize there in the hospital, we would
have to pay outrageous dues. And, not only that, but possibly
because the Union was there, they might have to close de-
partments, because they would have to increase pay wages
and so on and so forth. And that it would just be too much
for the hospital to bear at that time.’’12 While she testified
Sister Ann was present but did not say anything, in his brief
the General Counsel attributes the above remarks to Sister
Ann.
Mary Lee Newton, a hospital nurse educator, conducts
meetings to orient new employees in policy, procedures, and
safety information on the second Monday of every month,
the August 1990 meeting falling on August 13, the day
Dixon was hired and a week prior to starting work. The
meetings start at 8 a.m. and run until 4:30 p.m. Newton testi-
fied that employees that have been hired and passed their
physical are scheduled to attend and receive pay as employ-
ees for attending. Dixon did not receive her physical until
August 15. Her name was not included on the general hos-
pital orientation list for August 9, nor do hospital records re-
veal she signed the attendance list. Newton testified she
knew of no instance where a person had been scheduled or
attended orientation prior to taking a physical. She testified
that she tells employees repeatedly to sign in, that she counts
the people in the room and checks the sign-in sheet against
the list that are scheduled for orientation and takes the sign-
in sheet specifically to those that haven’t signed in. She did
not recall ever meeting Dixon. Respondent’s records show
Dixon was scheduled to attend the September 10 orientation
meeting; however, her name is not listed on the printout of
attendees. Newton denied specifically Dixon’s testimony that
she or anyone said that if the Union organized, the employ-
ees would have to pay outrageous dues or possibly close de-
partments because the hospital would have to increase wages.
She also refuted Dixon’s claim that Sister Ann remained in
the room following her short introductory remarks. The fact
that Dixon’s testimony is not corroborated by anyone that at-
tended the August 13 orientation meeting and is specifically
denied by Newton, convinces me her testimony is not true.
It is therefore found that the General Counsel has failed to
prove by a preponderance of the evidence the allegations
contained in paragraph 15, and its dismissal is recommended.
Paragraph 17 alleges that in September 1990, Ellis singled
out employees who supported Local 250 for work perform-
ance monitoring by their coworkers. Mary Ellen Moskowite
is a registered nurse II in the intensive care unit and Ellis
is the night-shift charge nurse in intensive care, a supervisory
729QUEEN OF THE VALLEY HOSPITAL
position. This allegation is based on a conversation between
Moskowite, who was acting as the relief charge nurse while
Ellis was acting as the p.m. supervisor. The Decision and Di-
rection of Election had issued recently in Case 20–RC–16612
wherein it was determined that respiratory therapists were
not to be included in the CNA unit on the ground they were
not ‘‘professionals.’’ As noted earlier, Michael Derby was a
respiratory therapist. He had been an active CNA supporter
and later active for Local 250. Moskowite testified on direct
examination that Ellis ‘‘came up to me after a report and
asked me if I’d noticed a work slowdown by Mike Derby’’
to which she responded, ‘‘Well, I don’t understand what
you’re talking about.’’ She testified further, ‘‘And he had
told me that since the decision from the NLRB came down
that respiratory therapists were not going to be considered
professionals, that Mike had been overheard saying that . . .
‘Gee, I’m not a professional’ . . . and he wanted me to re-
port any . . . ‘intentional work slowdown by Mike Derby’
to himself or my other charge nurse . . . and to his imme-
diate boss . . . which I believe was Mr. Carey, for discipli-
nary actions.’’ She responded she had never had any problem
regarding Derby’s work performance. On cross-examination,
she testified she had documented what had happened, given
a copy to Derby, and attached a copy to the statement given
a Board agent. The memo states in pertinent part:
On Sunday, September 23rd, I was approached by Mr.
Dave Ellis as I was working in the ICU as a relief
charge nurse. I was asked if I noticed a work slow-
down. I stated I did not understand the question. Dave
stated since the NLRB decision on who was included
in union negotiations, Mike Derby has been heard say-
ing, ‘‘I’m not a professional.’’ Dave wanted to know if
Mike had been intentionally slowing down his response
to any of the nurses’ request for respiratory service. I
stated I have never had any problems or concerns re-
garding his care or response time to my requests. Dave
asked me to report any intentional work slowdown by
Mike Derby to him, Randy Passoni or other nursing su-
pervisor, and that Mike’s boss would like to know for
disciplinary measures [Dave stated the head of res-
piratory therapy’s name, which I forgot the name at that
point].
Ellis testified that he had just come from a management
meeting where they had been told to be aware of work slow-
downs, ‘‘and I told her that due to the decision handed down
by the Labor Board as to who was considered a professional
to be represented by CNA and who was to be non-profes-
sional, represented by 250, that there had been some work
slowdowns already. And she asked me ‘What is a work
slowdown?’ I have her the example that had been given to
me of a respiratory therapist by the name of Michael Derby
who was out on two-south, was approached by a registered
nurse and asked to evaluate a patient who was not on his
card of treatments. But she wanted his opinion before she
called the physician. . . . And we were told that Michael
turned away from the registered nurse, mumbling, ‘I am not
professional enough,’ and walked away. . . . I told her that
if she observed anybody refusing to do their job, whether it
was a respiratory therapist, a nurse, a housekeeper—who-
ever—to report it immediately to the shift supervisor and that
it would be taken care of.’’ He denied he asked her to report
on any union activities of Derby or any other employee.
The General Counsel argues that Ellis singled out Derby
for surveillance by Moskowite because of his union activities
and that the allegation by Respondent that Derby had in fact
engaged in the misconduct Ellis alluded to, must be rejected
as a pretext since no evidence was presented he in fact re-
fused to evaluate a patient at an RN’s request. By the same
token, the General Counsel had possession of Moskowite’s
affidavit and her memo attached to it which clearly raised the
issue of Derby’s engagement in a work slowdown, yet he
failed to bring up the subject or elicit a denial when Derby
was on the witness stand. The Respondent argues that under
either version of the conversation, no unfair labor practice
occurred since Moskowite was asked to only report on a
‘‘work slowdown’’ which is unprotected conduct, citing Phil-
ip Industries, 295 NLRB 717, 732 (1989), wherein the ad-
ministrative law judge stated, with apparent Board approval:
[A] concerted plan to work at a pace slower than nor-
mal is not ‘‘protected activity’’ under the National
Labor Relations Act. Elk Lumber Co., 91 NLRB 333
(1950). See also Polytech, Inc., 195 NLRB 695, 696
(1972). It follows that if concerted activity to engage in
a slowdown is not protected, then certainly individual
efforts to engage in a slowdown are not protected. Cf.
Meyers Industries, 281 NLRB 882, 887 fn. 42 (1986).
It is clear that Derby, who had been active on behalf of
CNA, was ‘‘stunned’’ by the Board’s finding that respiratory
therapists ‘‘weren’t professional, that we were technicians,’’
which gives some credence, however, slight, to the claim he
may have engaged in a ‘‘slowdown’’ or refused to perform
a service expected of him. Of course, his protest against the
Board’s finding could not be construed as a protest against
Section 7 rights for which the Respondent could be held re-
sponsible. In any event, I am not persuaded that Ellis’ re-
quest that Moskowite report any intentional work slowdown
by Derby had any relationship to his union activity, and par-
ticularly Local 250 as alleged in the complaint, since Derby
had been a CNA supporter and was disgruntled over the fact
he wasn’t a ‘‘professional’’ and would therefore be included
in the Local 250 unit. Further, the record fails to establish
that Moskowite was asked to monitor Derby’s ‘‘work per-
formance’’ as alleged. Rather, it shows she was to report on
a ‘‘work slowdown’’ which is not a protected activity. The
General Counsel having failed to establish by a preponder-
ance of the evidence the allegation in paragraph 17, I rec-
ommend its dismissal.
Paragraph 23 alleges that in August 1990, Carey selec-
tively enforced Respondent’s dress code concerning the
wearing of pins and insignia, by prohibiting employees from
wearing Local 250 pins. Karen Dixon, whose testimony I de-
clined to credit with respect to paragraph 15 of the com-
plaint, testified that on August 20, her first day at work as
a respiratory therapist, she observed another employee wear-
ing a Local 250 button and asked where he had gotten it and
he gave it to her. She testified she pinned it on her jacket
along with four or five other pins and badges, including an
official hospital badge. She went on to testify that when
Carey saw it, he told her that he did not think it was appro-
priate and to remove it. She did not and continued to wear
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it throughout her employment. Other employees in the area
wore union pins also throughout her employment. She admit-
ted on cross-examination that she had belonged to Local 250
while working at Kaiser Hospital in Martinez, California.
Her application for employment with Respondent discloses
she failed to reveal her prior employment at Kaiser. Carey
testified he had observed Dixon and other employees wear-
ing union buttons and ribbons but that he never asked Dixon
or any other employee to remove them. Carey was the more
credible of the two. Accordingly, it is found that the General
Counsel failed to establish by a preponderance of the evi-
dence that Carey prohibited employees from wearing Local
250 pins and the dismissal of paragraph 23 is recommended.
C. Economic Issues
1. Budget
Respondent’s annual budget is based on a fiscal year run-
ning from July 1 to June 30 of the following year, the fiscal
year designation being based on the last day of the fiscal
year, that is, fiscal year 1991 runs from July 1, 1990, to June
30, 1991. The budget planning process begins in the fall of
the year preceding the start of the fiscal year, that is, the
budget planning process for fiscal year 1991 commenced in
the fall of 1989 with an administrative council retreat, and
by custom continues in accordance with a prearranged writ-
ten schedule through May when the budget is submitted to
the St. Joseph Health System for final approval. The admin-
istrative counsel is composed of Sister Ann, president of the
hospital, the vice president for finance and support services,
Matthew Larson, the vice president of human resources,
Hyatt Holt, other vice presidents, the comptroller, and the
medical director. Holt testified that prior to the retreat he
contacts other hospitals, both union and nonunion, and other
employers to gather information on the wages and benefits
they are paying or expect to pay, so that Respondent will be
competitive and able to recruit and retain professional, cleri-
cal, and support personnel. He testified he makes generalized
recommendations at the retreat regarding wages and specific
recommendations with respect to what fringe benefits should
be offered and how their costs should be allocated. Any
agreements that are made are subject to what the budget will
finally allow. Holt and his staff continue to contact hospitals
in the area so they can keep up to date on their wage struc-
tures and in January participate in a formal wage survey of
hospitals by Hospital Human Resource Management Associa-
tion of California (HHRMAC), the results of which are
issued in March and contain a summary by occupation of
what wages are being paid in the marketplace. He testified
that in January he makes specific recommendations regarding
salary for those classifications of employees where there are
traditional shortages such as nurses. Also in January, the de-
partment heads receive budget packages with which they
project their estimates of the levels of activity, salary, nonsal-
ary, and capital expenditures their departments will require
for the next fiscal year. They are slated for completion in
February. This is followed in March by an administrative re-
view of each department’s budget package by the president
of the hospital and the chief financial officer with each de-
partment head and the department head’s administrative vice
president. Following completion of the administrative re-
views, final decisions are made with respect to the budget.
Upon finalizing, the budget proposal is typed, edited, and as-
sembled into a detailed budget book and in mid-April sent
to the budget committee of the Hospital’s board of trustees
for review. It is then transmitted to the parent corporation,
St. Joseph Health System, for final review and approval, a
process that takes several weeks. If not delayed by modifica-
tions by the Health System, the budget is approved by mid-
May. Due to modifications made by the Health System in
1988 and 1989 for fiscal years 1989 and 1990, respectively,
because of severe financial conditions, final budget approval
in those years came in early June. Approval by the Health
System is followed by a letter from the president of the hos-
pital, Sister Ann, to all employees containing general, but
nonspecific, information on wages and benefits. Such a letter,
General Counsel’s Exhibit 4 (Appendix B attached hereto),
was sent to all employees on May 17, 1990, for fiscal year
1991, and is the subject of complaint paragraph 7(a).
2. Salary administration policy
Prior to 1987, Respondent’s salary administration policy
was comprised of three components. (1) General wage in-
creases which applied to everyone, were given on a specified
date and were based on market information and the need to
remain competitive. Each job classification had a salary
range based on the salaries of other medical facilities, cost
of living index, complexity of the job, educational require-
ments and availability of qualified applicants. The salary
range for each job classification was divided into 10 ‘‘steps’’
with 2-1/2-percent variation between each step, or a variation
of 25 percent between ‘‘step one’’ and ‘‘step 10.’’ Every
‘‘step’’ in a job classification received the same percentage
increase effective the pay period closest to the beginning of
the fiscal year. Depending upon market conditions and va-
cancies, some classifications, such as registered nurses, could
receive a a higher percentage increase than other occupations
which were not experiencing a shortage of personnel. (2)
Merit increases were given to employees not at the top of
the salary range, based on performance quality and attend-
ance, and took place on the employee’s anniversary date, and
varied from one to three ‘‘steps’’ up on the salary range,
each step amounting to 2-1/2 percent. (3) Outstanding per-
formance awards were given on their anniversary date to em-
ployees already at ‘‘step’’ 10 of the salary range upon writ-
ten recommendation for continued outstanding performance
and consisted of a lump sum payment equal to 5 percent of
the employee’s prior year’s salary. These were suspended
and the salary program underwent modification in 1987
when the hospital began to lose money.
Holt testified that in the fall of 1987, when the hospital
began budgetary planning for fiscal year 1989, it was losing
money at an alarming rate and consequently instituted cost-
cutting changes in its compensation program. General or
across-the-board increases were reduced, with the largest, 4
percent for nurses, 3 percent for pharmacists and other tech-
nologists, and 2-1/2 percent for LVNs and a few other classi-
fications. Merit increases of 2-1/2 percent were available for
those not at the top of the range on their normal review date.
Employees at the top of the range in occupations which did
not receive the across-the-board increase were to receive a
bonus of 2-1/2 percent of their 1987 earnings, with payment
to be made June 23, 1988.
731QUEEN OF THE VALLEY HOSPITAL
13 The CNA’s petition was filed April 5, 1990.
Budget planning for fiscal year 1990 commenced the fall
of 1988 and continued through the spring of 1989. Inasmuch
as the hospital continued to lose money, according to Holt,
it continued ‘‘maintaining a very conservative posture’’
which included further modification in the salary program. In
order to ‘‘more equitably reward all employees for perform-
ance, regardless of where they were in the salary range,’’ the
pay for performance system converted from a 10-step rate
file with 2-1/2 percent per step, to a 26 step rate file with
1 percent per step, followed by range adjustments, thus giv-
ing the hospital more flexibility to reward performance with
its limited funds, according to Holt. The change and adjust-
ment was accomplished in the 6 weeks preceding the start
of the fiscal year 1990 on July 1, 1989. As in prior years,
different classifications of employees received different per-
cent range adjustments depending on market conditions and
the hospital’s ability to pay. Thus, RNs received a 5-percent
range adjustment while other classifications received smaller
range adjustments. However, neither the step adjustment nor
the range adjustment involved an actual pay increase for any-
one. Instead, Respondent adopted a new performance ap-
praisal concept whereby department heads were each allotted
a specific amount of money which could be given out during
the fiscal year as performance-based increases. The depart-
ment head had discretion of granting anywhere from 1- to 5-
percent increases to employees based on their performance
so long as the budgeted amount was not exceeded. The in-
creases were given as either ‘‘merit increases,’’ a movement
upward a step on the salary range as long as it didn’t take
them above step 26, which was the top of the range, or as
‘‘bonuses,’’ a lump sum based on a percentage of the prior
year’s earnings for those at the top of the range. The merit
increases were given on the employee’s anniversary date,
whereas ‘‘bonuses’’ could be given anytime during the fiscal
year. An employee near the top of the step 26 range could
receive a ‘‘merit increase’’ to step 26 and a ‘‘bonus’’ for any
percentage beyond that so long as the amount did not exceed
5-percent total for both the merit increase and ‘‘bonus.’’ The
record shows that RNs at the top of the range were eligible
and received bonuses under the plan in fiscal year 1990.
Budget planning for fiscal year 1991 commenced in the
fall of 1989 and continued through the spring of 1990, by
which time, according to Holt, Respondent’s cost contain-
ment and revenue enhancing programs had taken effect and
as a consequence the hospital’s financial condition had im-
proved. It was decided at the fall 1989 administrative retreat
that since there had not been a general wage increase the
prior year and only limited increases before that, that the Re-
spondent would have to do more about wages. There was
discussion regarding a continuing shortage of all profes-
sionals, including pharmacists, the vision plan and the in-
crease in health plan costs which had been absorbed by em-
ployees in recent years. Holt recommended RNs receive at
least a 6-percent increase, add another step for tenure, no
across-the-board increases and maintain the pay for perform-
ance and performance bonus payment system. The decisions
as to how much of a pay rate increase was to be awarded
each of the various classifications was made in late March
1990 after receipt of the HHRMAC survey results in early
March. While most classifications received a 5-percent gen-
eral wage increase, nurses, engineers, pharmacists, and
phlebotomists received larger percentage increases. The sys-
tem of awarding performance merit increases for employees
not at the top of the pay range, and bonuses for those at the
top of the range was also continued with a 5-percent maxi-
mum given by a department head as long as it did not ex-
ceed the departmental merit budget for fiscal year 1991.
Final decisions with respect to the budget proposal were
completed in late March or early April 1990, and the budget
package was mailed to the budget committee on April 18.
Following approval of the fiscal year 1991 budget by St. Jo-
seph Health System, on May 17, Sister Ann issued a memo-
randum to employees, attached hereto as Appendix B, in-
forming them of the wage increase effective July 1, 1990, vi-
sion care for dependents and assumption by the hospital of
premium increases effective January 1, 1991. The letter goes
on to explain ‘‘that because of the petition filed with the
NLRB by the nurses’ union, CNA, we will not be able to
put the July 1 wage increase into effect for any employees
who may be covered by the petition.’’13 On May 22, 1990,
CNA wrote Sister Ann that it agreed the hospital should
grant an ‘‘up to’’ 5-percent increase and that it had no inten-
tion of filing an unfair labor charge if such an increase be
granted. The letter is attached hereto as Appendix C. Re-
spondent’s legal counsel responded to CNA’s letter on May
24, 1990, stating that the July 1 wage increases to nurses and
other professionals would be granted if the Union informed
the Board’s Regional Office that it would waive the filing of
any unfair labor practice charge and objection to an election
in connection with the granting of such increase. The letter
is attached hereto as Appendix D. By letter of June 4, 1990,
CNA agreed to do so and on June 6, 1990, Sister Ann in-
formed the RNs and other professionals that the increases
would go into effect and be reflected in their July 5 pay-
checks.
3. Unfair labor practice allegations
Paragraph 7(a) alleges that on May 17, 1990, Sister Ann
promised employees improvements in health care benefits by
extending vision care coverage to dependents and by its ab-
sorption of any increase in employee medical insurance pre-
miums in order to discourage CNA and/or Local 250 sup-
port. This allegation is grounded in Sister Ann’s May 17,
1990 memorandum, attached hereto as Appendix B. The
General Counsel argues that the announced improvements in
health plan insurance benefits and absorption of premium in-
creases, made shortly after the CNA election petition was
filed and the hospital’s knowledge of Local 250 organizing
efforts, was calculated to undermine employee support for
organizing and presumptively a violation of Section 8(a)(1)
and constituted objectionable conduct; and that in the ab-
sence of Respondent’s showing that the timing of the an-
nouncement was governed by factors other than the pend-
ency of union activity, as here, such timing is calculated to
influence employees in choosing a bargaining representative.
The Respondent argues that the recommendations for the im-
provements were made at the November 1989 administrative
council retreat, prior to knowledge of union activity, and
were announced per custom in May 1990, after the budget
for fiscal year 1991 had been approved by the St. Joseph
Health System.
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Prior to 1989, Respondent’s health benefits program con-
sisted of two plans, a self-insured indemnity plan adminis-
tered by Pacific Coast Administrators (PCA plan A) and a
health maintenance organization called Health Plan of Amer-
ica (HPA plan). The latter was added in 1987 as part of a
cost containment measure when the hospital was losing
money. Until this time, the hospital had absorbed all of the
costs of the plans. One of the cost containment measures was
to start charging employees, effective January 1, 1988, for a
part of the cost of the health insurance plans. Open enroll-
ment period when employees can either sign up for or
change health plans is each November, and changes in the
health care program are always effected on January 1 of the
succeeding year. In January 1989 and January 1990, the Re-
spondent passed the increase in the cost of the plans’ pre-
miums on to the employees. In early November 1989, during
the open enrollment period, a number of employees com-
plained about the high premiums and indicated they ‘‘would
prefer to do a little self-insurance themselves and have a
higher deductible that would cause them to have to pay
money if they use the insurance, but have a lower pre-
mium.’’ As a consequence, a third plan, PCA plan B, was
developed and offered employees effective January 1, 1990.
As of that date, of approximately 800 employees covered by
the plans, 90 percent were in the HPA plan, 7 percent in
PCA Plan A and 3 percent in PCA Plan B. Also at the No-
vember 1989 fall retreat, Holt recommended that no addi-
tional pass through of premium increases be made for fiscal
year 1991. He explained that the hospital was in better finan-
cial condition and that further passing through premium in-
creases would make health insurance so expensive that em-
ployees could no longer afford it. His recommendation was
accepted by the administrative counsel and the November
1989 retreat prior to knowledge of union organizing and im-
plemented on January 1, 1991.
For an undisclosed number of years, Respondent’s em-
ployees have had a self-insured vision plan for which the
hospital paid the expenses, and which covered only the em-
ployee. It was administered through Pacific Coast Adminis-
trators. Holt testified that in the fall of 1987, when the HPA
plan was first made available, and again in the fall of 1988
and early 1989 when the budget for fiscal year 1990 was
being drafted, adding vision care for dependents was under
consideration but was decided against because of the finan-
cial condition of the hospital. At the fall retreat in November
1989, prior to knowledge of any union activity, Holt again
recommended that dependent vision be added ‘‘for sure in
Calendar 91,’’ which was adopted by the administrative
council and went into effect January 1, 1991.
‘‘Although granting employee benefits during the period
immediately preceding an election is not per se ground for
setting aside an election, in the absence of a showing that
the timing of the announcement was governed by factors
other than the pendency of the election, the Board will re-
gard such timing as calculated to influence the employees in
their choice of a bargaining representative. The burden of
showing other factors is on the employer. . . . As a general
rule, an employer, in deciding whether to grant benefits
while a representation petition is pending, should decide that
question as it would if a union were not in the picture.’’
Essex International, Inc., 216 NLRB 575, 576 (1975). In my
view, the Respondent has met that burden. It was shown that
passing through to employees the increased health insurance
premiums was instituted and maintained through the 2 years
the hospital found itself financially strapped, and that vision
care for dependents had been considered and rejected in
those years for the same reason. Prior to knowledge of union
organizing activities, and in accordance with prior custom,
the plans for improvement in each benefit were developed
and approved by the administrative counsel during the budg-
et retreat in November 1989, after it was clear that the hos-
pital’s financial condition had improved. The hospital had a
legal obligation when it became known that the Unions were
organizing, to proceed as though no union were in the pic-
ture. The May 17, 1990 announcement by Sister Ann that vi-
sion care for dependents and assumption of health premium
increases would be paid for by Respondent, follows a se-
quential step in a budget calendar chronology that had been
followed for years, i.e., the budget retreat in November, sub-
mission of budget packages to department heads in January,
the submission of the budget to the St. Joseph Health System
in late April or early May, and finally the announcement to
employees outlining in general what effect the budget for the
following fiscal year will have on them. I conclude and find
that the announcement of the benefits in May conforms to
a past practice and that the benefit improvements had been
planned and determined prior to knowledge of union activity.
This leads me to find that the allegations in paragraph 7(a)
have not been proved and recommend its dismissal.
Greenbrier Valley Hospital, 265 NLRB 1056 (1982); Coro-
net Instructional Media, 250 NLRB 940 (1980).
Paragraphs 19(a) and (b) allege that on various occasions
on or about November 9, 1990, Holt informed employees
that the benefits discussed above regarding vision care cov-
erage and absorption of the increase in health care premiums
would be effected and that health care costs for employees
using Respondent’s self-insured plans—PCA plans A and
B—would decrease. Having found that it was not unlawful
on May 17, 1990, to announce the extension of vision care
to dependents and absorption of any increase in health care
premiums in the HPA plan, it follows that it was not unlaw-
ful to reiterate those changes at a later date, nor could it have
had any effect on the CNA election, which had been held in
October.
Regarding the reduction in the premium of the PCA plans,
the record shows that the premiums for both the PCA plan
A and PCA plan B self-insured indemnity plans are deter-
mined by actuarial consultants who look at the prior year’s
claims experience to establish rates under the Comprehensive
Omnibus Reconciliation Act (COBRA). The actuarial analy-
sis is done in October of each year and the Respondent re-
ceives the information in early November. The analysis for
calendar 1991 was received by Respondent on November 7,
1990, and disclosed that the premium rates for 1991 would
be lower than in the previous year because of better experi-
ence under the plan. Holt testified that the hospital felt it
would be ‘‘a breach of faith with our employees if we had
a reduction and didn’t pass it on.’’ He testified the hospital
had no information indicating the premium rates were going
to be reduced prior to November 7, 1990. Thus, premium
rates were reduced to the extent they were reduced by the
actuaries. The reduction was in the amount paid by the em-
ployee, while the hospital’s contribution remained the same
and had no impact on the budget. I note again that the an-
733QUEEN OF THE VALLEY HOSPITAL
nouncement regarding the reduction in the premium rates in
November could not have impacted on the CNA election al-
ready past. Nor, in my view, could it have had any effect
on the Local 250 representation election which was blocked
by a charge and not held until June 26, 1991. Further, no ob-
jections were filed with respect to that election. More impor-
tantly, the General Counsel has failed to establish an unlaw-
ful motivation. Accordingly, I recommend paragraph 19 be
dismissed. It follows that the granting of those benefits on
January 1, 1991, was not unlawful. Accordingly, I rec-
ommend paragraph 20(b) of the complaint be dismissed.
Paragraph 20(c) alleges that on or about July 1, 1990, Re-
spondent granted bonuses to RNs at the top of the wage
scale in order to discourage them from engaging in activities
supporting CNA. The General Counsel argues that on July
1, 1990, Respondent implemented a wage increase program
for the first time that resulted in a bonus payment for nurses
who were at the top of the hospital’s wage scale, and that
in the face of a pending organizing campaign, such conduct
was presumptively unlawful. As shown in section 2 above,
salary administration policy for fiscal year 1989, employees
at the top of the range in occupations which did not receive
an across-the-board increase were eligible to receive a bonus
of 2-1/2 percent of their 1987 earnings, with payments to be
made June 23, 1988. In fiscal year 1990, with the institution
of the new 26 step rate file and adoption of the new perform-
ance appraisal concept, employees could receive a 5-percent
increase, as either a ‘‘merit increase,’’ a movement upward
on the salary range so long as it did not take them above
step 26 which was the top of the range, or as ‘‘bonuses,’’
a lump sum based on a percentage of the prior year’s earn-
ings for those at the top of the range. An employee near the
top of the step 26 range could receive a ‘‘merit increase’’
to step 26 and a ‘‘bonus’’ for any percentage beyond that so
long as the amount did not exceed 5-percent total for both
the merit increase and ‘‘bonus.’’ As shown, RNs at the top
of the range in fiscal 1990 were eligible and received such
bonuses. Thus, the record establishes that in fiscal year 1990,
the RNs participated in the hospital’s performance-based in-
crease program, including the receipt of ‘‘bonuses.’’ The
General Counsel having failed to establish by a preponder-
ance of the evidence that in fiscal year 1991 RNs at the top
of the scale were treated any differently in connection with
the granting of performance-based increases or bonuses than
in prior years, I recommend dismissal of paragraph 20(c).
Paragraph 20(a) alleges that on or about July 1, 1990, Re-
spondent granted a wage increase to engineers and phar-
macists in order to discourage activity on behalf of CNA or
Local 250. The General Counsel claims the raises to these
two classifications in amounts exceeding 5 percent was to re-
ward them for their opposition to union representation. The
Respondent argues that it has been the historic and normal
practice to implement different percentage increases for dif-
ferent job classifications depending on the market rate and
how difficult it is to recruit and retain qualified candidates.
Respondent also argues that there are only about 12 phar-
macists in the CNA unit of 340 employees, and only 8 to
10 engineers in the Local 250 unit of 600 employees, so it
is foolhardy for the General Counsel to argue the hospital
was trying to ‘‘bribe’’ employees in order to influence the
elections. It also points out that the General Counsel gave no
explanation why the larger than 5-percent raise of the nurses
and phlebotomists was supposedly not unlawful.
It is undisputed that four classifications of employees re-
ceived raises in excess of 5 percent. Thus, the RNs received
a 6-percent increase, and phlebotomists along with engineers
and pharmacists received 8-percent increases. While the com-
plaint initially alleged unlawful wage increases to engineers
and phlebotomists, it was amended at the hearing by sub-
stituting pharmacists in the place of phlebotomists, so that
the only unlawful wage increases alleged and litigated were
those given engineers and pharmacists.
At the outset it is noted that Respondent’s salary adminis-
tration policy (R. Exh. 9), effective since February 1977 and
revised June 9, 1985, contains the following pertinent provi-
sions:
GENERAL POLICY:
1. Hospital grade scales and salary ranges have been
established, based on salaries paid by other medical fa-
cilities located within a reasonable commuting distance
from Napa, the cost of living index, salaries paid by
non-medical facilities, complexity of the job, edu-
cational requirements, and availability of qualified ap-
plicants.
. . . .
7. The hospital reviews all job salary ranges annually
and makes necessary adjustments in the ranges to keep
the salaries at a competitive level.
Holt testified that the raises to the four classifications in
excess of 5 percent were given because of market conditions
and the difficulty in filling the positions. On January 8, 1990,
Holt had written Matt Larson regarding the need for a 6-per-
cent increase in salary in addition to other benefits for the
RNs based on wages and benefits paid by other hospitals.
Regarding engineers, he compared the Respondent’s average
maximum pay for maintenance engineers in January 1990,
which was $15.82 per hour with the HHRMAC survey which
was received in March 1990 showing the average maximum
pay for maintenance engineers was $17.51 per hour, showing
Respondent was paying them approximately 10 percent
below the market rates, and recommended an 8-percent in-
crease in order to remain what he felt to be competitive with
other hospitals. With respect to pharmacists, the record estab-
lishes that they have been in short supply and that Respond-
ent had open positions for one or two pharmacists for quite
some time and in one instance was required to pay moving
expenses for a pharmacist coming from Florida. Because of
the shortage, it is necessary to start them at the top of the
pay range. Therefore, the decision to provide them with an
8-percent increase for fiscal year 1991 was made.
There is no doubt that the Respondent was aware of the
two Union’s organizing activities at the time the raises were
announced. Thus, the General Counsel argues, citing NLRB
v. Exchange Parts, 375 U.S. 405 (1964), that the most log-
ical explanation for the higher increase for engineers and
pharmacists was to reward them for their opposition to the
union, and, therefore, violated Section 8(a)(1). It was not
shown, however, that at the time the decision to grant the in-
creases was made that the Respondent had any knowledge of
their union or nonunion preferences. Further, the Respond-
ent’s salary administration policy, introduced in evidence,
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
makes it clear that it is the Respondent’s policy to review
all job salary ranges annually and to make adjustments in the
ranges to keep them at a competitive level, and that this is
done by conducting its own inquiries and by participating in
the annual HHRMAC survey conducted among competitors.
Thus, it is clear that the improvement made in the wages of
the engineers and pharmacists flowed from those surveys and
from Respondent’s own experience regarding the difficulty in
finding and keeping qualified employees to fill those posi-
tions. In sum, it appears that Respondent’s actions here were
in basic conformity with its established and published policy.
Finding a failure to show antiunion motivation, I recommend
the dismissal of paragraph 20(a) of the complaint. Gould,
Inc., 221 NLRB 899 (1975); Essex International, Inc., 216
NLRB 575 (1975).
D. Withholding Professional Employee Wage Increases
As outlined heretofore, on May 17, 1990, Sister Ann
issued a letter (App. B attached) informing employees of the
acceptance of the 1991 fiscal year budget with ‘‘a wage in-
crease effective with the pay period beginning July 1, 1990,’’
and further informing them of the benefit changes, discussed
infra. It goes on to state:
We have been advised that because of the petition
filed with the NLRB by the nurses’ union, CNA, we
will not be able to put the July 1 wage increase into
effect for any employees who may be covered by the
petition. CNA has amended its petition once already
and sent out at least two flyers last week announcing
its apparent amendment of the petition again to seek to
represent all RN’s and all health professionals.
Under our new budget, all employees except those
who may be included in the CNA petition will be eligi-
ble to receive up to a 5% increase effective July 1,
1990, if recommended by their supervisor for the in-
crease is based on the employee’s performance.
On May 22, CNA wrote Sister Ann that it agreed to an
increase ‘‘up to’’ 5 percent and had no intention of filing an
unfair labor charge if it was granted. (App. C attached.) This
was followed by Respondent’s legal counsel’s May 24 letter
in response to CNA that the wage increases to nurses and
other professionals would be granted if CNA informed the
Board’s Regional Office that it would waive the filing of a
charge or objections to an election in connection with the in-
crease. (App. D attached.) Upon CNA’s agreement to do so,
on June 6, Sister Ann informed the RNs and other profes-
sionals in writing as follows:
As you know, it is our normal practice following our
annual budget review and approval process to announce
to our staff the specifics of the new information regard-
ing wage increases and/or adjustments.
Today, we received guidance from our legal counsel
that we can proceed with our normal practice. There-
fore, you will be informed by your supervisor or de-
partment head about the amount of increase you will re-
ceive. This increase will be on the paycheck you re-
ceive on the July 5th payday.
Paragraph 7(b) of the complaint alleges that Sister Ann’s
May 17 letter threatened employees that pay increases were
being withheld from certain employees because of their sup-
port for and activities on behalf of CNA. Paragraph 24 al-
leges Respondent’s counsel’s letter violated Section 8(a)(1)
in that it demanded that CNA waive its statutory right to file
an unfair labor practice charge if it wanted Respondent to
grant employees being organized by CNA a wage increase.
The General Counsel argues that an employer is required
to proceed in those circumstances as if the Union were not
on the scene and that instead of assuring nurses and health
professionals that this was only a postponement of an in-
crease and it would continue to follow its past wage policies
with or without a union, Sister Ann’s letter placed the full
onus for the absolute denial of the wage increase on the
CNA. It is argued that the intent of placing the onus on the
Union is reinforced by Respondent’s counsel’s letter to CNA
which describes the Union as ‘‘an obstacle to the granting
of the wage increase.’’
The Respondent argues that it was faced with a situation
where it had already determined to grant a general wage in-
crease which had not been granted the prior year due to its
poor financial condition, and faced with the CNA representa-
tion petition, it was advised by its legal counsel that it
couldn’t institute the general increase without the risk that it
might be considered an unfair labor practice. Therefore, Sis-
ter Ann issued the notice of May 17 to the effect that the
hospital had been advised that because of the CNA petition,
the July 1 wage increase would not be put into effect for em-
ployees covered by the CNA petition. This was followed by
her June 8 memorandum advising all professional employees
that they also would be receiving the general wage increase
which went into effect on July 1, without any delay. Re-
spondent claims any possible misunderstanding by employees
as to the meaning of the May 17 letter, would have been cor-
rected by June 8, more than 4 months before the October 18
election and could, therefore, have had no impact on the
election. It is further claimed that there is no case law mak-
ing it unlawful for an employer to request that a union waive
the filing of charges or objections before an employer insti-
tutes a pay increase which the union could claim was itself
improper, as was done in this case.
With the exclusion of the two unfair labor practice allega-
tions now under consideration, the consolidated complaint
contains 29 allegations of other 8(a)(1) conduct, none of
which has been proven by a preponderance of the evidence.
Thus, to this point the record is void of any showing of
antiunion animus on the part of Respondent. It is in this con-
text that I view the May 17 letter by Sister Ann and Re-
spondent’s counsel’s letter to CNA of May 24, the subjects
of complaint paragraphs 7(b) and 24, respectively.
At the time Sister Ann wrote the May 17 letter, CNA’s
petition was pending and Respondent had been informed of
Local 250’s organizing efforts. Nothing could be clearer than
that the May 17 letter, whether or not Sister Ann had an-
nounced the withholding of the wage increase from RNs and
health professionals, would provoke a complaint allegation of
unlawful conduct with respect to the granting of wage in-
creases. In this regard, see complaint paragraph 7(a) alleging
the May 17 letter’s unlawful promise of improvements in
health care benefits concerning vision care coverage for de-
pendents and absorption of any increase in employee medical
benefits insurance premiums. It would of course have been
unlawful for the Respondent to have withheld all of the ben-
735QUEEN OF THE VALLEY HOSPITAL
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
efits which it had already planned since case law holds that
it must proceed in the face of a union petition for election
as though no union is on the scene. Thus, Respondent was
caught between a rock and a hard place to the obvious ad-
vantage of the Unions. Whatever it did, it could be accused
of violating the Act. Having found itself in this position, it
is not surprising that Respondent sought advice of legal
counsel who took steps to extricate it from that unenviable
position. The natural and prudent thing to do, as was done
here, was to seek the assurance from CNA, who at that point
had objected to the withholding of the wage increase, that it
would not file a charge or objection to election if the wage
increase for RNs and professionals was reinstated. Upon that
assurance, the personnel involved were informed on June 6
that they also would receive the wage increases on July 1 as
previously announced.
I have not been cited, nor have I found, any case law that
makes it unlawful for a Respondent’s legal counsel to request
that a union waive the filing of an unfair labor practice
charge or objections to an election in circumstances similar
to those presented here. In my view, Respondent’s counsel’s
attempt to avoid an unfair labor practice charge and the filing
of objections was perfectly proper, and it would have been
remiss in not taking the action it did.
Consideration of the above facts causes me to conclude
that the evidence does not preponderate in favor of a finding
of a violation with respect to either paragraph 7(b) or 24.
There has been a total lack of credible evidence that the Re-
spondent disparaged or undermined either union or that it
sought to reward or punish employees for either engaging in
or not engaging in union activities or the pursuit of Section
7 rights. Accordingly, I recommend dismissal of paragraphs
7(b) and 24 of the complaint.
To recap, I recommend the consolidated complaint be dis-
missed in its entirety.
E. The Objections
At the conclusion of the General Counsel’s case-in-chief,
the representative for CNA stated it would not pursue any
election objections filed in the case that did not parallel the
unfair labor practice allegations contained in the complaint
and further withdrew Objections 3, 7, and 8. The remaining
objections state:
1. During the critical pre-election period, the Em-
ployer discriminatorily promised and/or granted lump-
sum bonuses to certain of its employees to vote against
the Petitioner in the pending election; the Employer si-
multaneously withheld said bonuses from certain other
employes in order to retaliate against them for their
support of and activities on behalf of the Petitioner.
2. During the critical pre-election period, on or about
July 1, 1990, the Employer implemented wage in-
creases in amounts larger than previously announced
for certain employees in order to encourage those em-
ployees to vote against the Petitioner in the pending
election;
4. During the critical pre-election period, the Em-
ployer, by its supervisors and agents, threatened em-
ployees with the loss of certain benefits, and the closing
of the Employer’s hospital, if the Petitioner won the
pending election.
5. During the critical pre-election period, the Em-
ployer, by its supervisors and agents, promised employ-
ees benefits and improved working conditions if the
employees rejected the Petitioner in the pending NLRB
election.
6. During the critical pre-election period, the Em-
ployer, by its supervisors and agents solicited employee
grievances and made implied promises of benefits to
the employees if the employees rejected the Petitioner
in the pending NLRB election.
The General Counsel having failed to establish evidence to
prove by a preponderance of the evidence the complaint alle-
gations which would support the objections, and the CNA
having failed to adduce any further evidence, it is rec-
ommended that Objections 1, 3, 4, 5, and 6 be overruled and
that an appropriate certification be issued.14
APPENDIX A
Sister Ann
- As you know, we just completed one election.
- A majority of those who voted in the CNA election
chose to reject CNA.
- This outcome presents us with a clear message—and
a clear challenge;
1 - We have to do a better job of listening!
2 - We have to find more effective ways of commu-
nicating!
3 - We have to find better ways of involving the
staff!
- These 2 Unions (CNA & 250) have spent the last few
weeks heaping insult after insult at the queen—they’ve used
the newspapers and radio.
- CNA may even continue this approach because
they don’t have to accept the voice of the majority.
- 250 clearly is continuing this behavior!
- I view these ‘‘attacks’’ on the queen as ‘‘attacks’’ on
our integrity—The Hospital’s, my own, our management and
on you, the staff.
- It makes me angry and I don’t mind making this very
clear—I’m angry at Local 250 and those who have advised
them to take this approach of ridicule and insult.
- They attack the consultant—
When they do, they attack me!
- When they say our adviser is telling us to violate
the law, manipulate and lie to the staff—they are saying
that the Sisters of St. Joseph of Orange and, I person-
ally, would encourage, support or condone this unethi-
cal behavior. When they attack the consultant—they at-
tack us and me.
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
- The information we have given out has been fac-
tual and accurate, and Local 250 calling it ‘‘lies’’
doesn’t change the truth.
- This whole approach of theirs is clearly intended to dis-
tract people’s attention from the real issues—this election
isn’t about consultants.
- 250 has been trying to put QVH of the defensive—they
want us to be embarrassed for hiring a knowledgeable expert
to help us.
- Not only will we not apologize or feel badly—I want
you to know that we are very glad we made the decision to
seek expert advice.
- We have an obligation to all of the employees at
QVH—to those who do not want this Union as well as
to those who do. The Federal Labor Laws protect both
rights equally—the right to organize and the right not
to organize.
— PAUSE —
We have an obligation to the common good
— To our employees!
— To our community!
— To the viability of our Hospital!
PAUSE—
The choices we faced in April of this year were:
1. Do nothing in response to the Union’s petition and
250’s organizing efforts, or
2. Chose to act—to compile the facts and reveal the
truths about these unions, to inform and educate our
management and ensure compliance with the law, and
to educate our staff on subjects which were unfamiliar
to most of us.
We chose to act!
APPENDIX B
May 17, 1990
TO: ALL EMPLOYEES
FROM: Sister Ann
SUBJECT: July 1, 1990 Wage Increase
Our annual budget for FY 90–91 has been accepted by of-
ficials at the St. Joseph Health System. That information al-
lows us to move ahead with our rate file adjustments and to
have a wage increase effective with the pay period beginning
July 1, 1990. Other items included in our budget for next
year include vision care for dependents effective January 1,
1991, and the assumption by the hospital of all of the pre-
mium increases that may become effective January 1, 1991
for any medical, dental or vision plan we offer to employees.
We have been advised that because of the petition filed
with the NLRB by the nurses’ union, CNA, we will not be
able to put the July 1 wage increase into effect for any em-
ployees who may be covered by the petition. CNA has
amended its petition once already and sent out at least two
flyers last week announcing its apparent amendment of the
petition again to seek to represent all RN’s and all health
professionals.
Under our new budget, all employees except those who
may be included in the CNA petition will be eligible to re-
ceive up to a 5% increase effective July 1, 1990, if rec-
ommended by their supervisor for the increase is based on
the employee’s performance.
These employees will also be eligible for up to a 5% addi-
tional increase if they are not at the top of their range and
if recommended for the increase by their supervisor based on
the employee’s performance. This additional increase would
be effective on the employee’s anniversary date. In no event
would an employee be paid more than the top of the salary
range.
In my announcement of wage adjustments last year, I said:
‘‘. . . I think it is more appropriate that we pause and reflect
on the things we have done together during the last 12 to
15 months. We have squarely faced our challenges and we
have taken the appropriate actions to protect our hospital’s
future—which means we are protecting each other’s future.’’
I can think of nothing that can or should be added to what
I said last year. We should not forget what we have been
through together.
God bless.
SA:dp
APPENDIX C
May 22, 1990
Sister Ann McGuinn, CSJ, President
Queen of the Valley Hospital
1000 Trancas Street
P.O. Box 2340
Napa, CA 94558
Subject: CNA agrees to 5% wage increase 7/1/90
Dear Sister Ann:
This is in response to your recent memo announcing a
wage increase ‘‘up to’’ 5%, effective July 1, 1990 for all
hospital employees except Registered Nurses and Health Pro-
fessionals.
Because of the urgent need to improve recruiting imme-
diately, CNA agrees to an ‘‘up to’’ 5% increase as an in-
terim measure until negotiations can begin. We have no in-
tention, if this is your concern, of filing an Unfair Labor
Practice Charge with the National Labor Relations Board
should an ‘‘up to’’ 5% increase be implemented. In fact, our
intent is to file a complaint if regular annual wage increases
are not implemented; if regular tenure step raises are denied
or if negative changes in benefits occur.
As you are aware, Section 8(a)(1) of the National Labor
Relations Act is designed to prevent intimidation or
‘‘bribes’’ in the form of changes in wages and working con-
ditions while an organizing campaign is underway. It was
never meant to prevent employers from implementing regular
annual wage increases, scheduled step increases or maintain-
ing benefits. Indeed, if an employer fails to implement regu-
lar or scheduled increases, simply because an election peti-
tion has been filed, that action would be considered a viola-
tion of the law.
It is the goal of the employees at QVH who initiated the
election petition to solve problems at QVH and to help the
hospital provide the best possible patient care and the best
possible working conditions., One of the greatest problems
737QUEEN OF THE VALLEY HOSPITAL
facing the health care industry is the growing shortage of
Registered Nurses and Health Professionals. Recruitment and
retention is a key concern of all of us; and compensation is
directly tied to the hospital’s ability to recruit and retain suf-
ficient numbers of professionals to give safe patient care.
Patient care suffers during staff shortages and patient care
is too important to be the victim of an anti-union campaign.
Although a 5% wage increase is hardly sufficient to solve re-
cruitment and retention problems, and just covers this year’s
rise in the cost of living, it would be detrimental to postpone
the increase.
Furthermore, the Association strongly urges the hospital to
immediately address other serious staffing issues, such as
maintaining adequate coverage for PM, night and weekend
call-back assignments in the Home Care Department. If the
solutions reached to these staffing issues are agreeable to the
employees involved, and with notice to CNA, the Associa-
tion will waive its legal rights to file unfair labor practice
charges against the hospital.
Sincerely,
/s/ Janet Sass McDermott
C.N.A. Labor Representative
cc: Kay Hendren, National Labor Relations Board
APPENDIX D
May 24, 1990
Ms. Janet Sass McDermott
CNA Labor Representative
1100 Eleventh Street, Suite 200
Sacramento, CA 95814
Re: Queen of the Valley Hospital
Dear Ms. McDermott:
This office represents Queen of the Valley Hospital.
Queen of the Valley has received your May 22, 1990 letter
regarding the Hospital’s wage structure for its next fiscal
year.
As you know, certain legal restrictions are placed on an
employer once a union organizing petition has been filed
with the NLRB. Queen of the Valley would have granted a
July 1, 1990 increase to its nurses and other professionals,
along with its other employees, except for the legal restric-
tions placed on the Hospital by the filing of your petition.
If your organization is truly willing to remove itself as an
obstacle to the granting of that increase, you will need to
provide the National Labor Relations Board with a written
statement that your organization will not file and is expressly
waiving any future right to file with the NLRB (1) any unfair
labor practice charge and (2) any objection to the results of
any future election in connection with the granting of this
wage increase.
Once this office has received a copy of your letter to the
NLRB as outlined above, the Hospital will be happy to also
implement a July 1 wage increase for nurses and other pro-
fessionals, as it would have given them that increase origi-
nally except for the legal restrictions placed on it by the fil-
ing of your petition.
Very truly yours,
/s/ Philip L. Ross
PLR/jf