Saint Luke's Hospital

National Labor Relations Board - Board Decisions

Sep 28, 1981

258 N.L.R.B. 321 (N.L.R.B. 1981)

SAINT LUKE'S HOSPITAL
Saint Luke's Hospital and United Physical Thera-
pists. Cases 20-CA- 15137 and 20-CA- 15460
September 28, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 25, 1981, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief. Saint
Luke's Hospital, the Respondent, filed a cross-ex-
ception and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent with this opin-
ion. We find that the Respondent committed four
additional violations of Section 8(a)(1) of the Act.
The facts, as set out more fully in the attached
Decision, are not in dispute. The Respondent oper-
ates a hospital that employs approximately 800 em-
ployees, about half of whom are represented for
purposes of collective bargaining by several differ-
ent labor organizations. During January and Febru-
ary 19801 the Respondent's physical therapy de-
partment consisted of five staff physical therapists,
three physical therapy aides, one clerical employee,
Chief Physical Therapist Kam Young, and Assist-
ant Chief Physical Therapist Sue Urban. Both
Young and Urban were supervisors within the
meaning of the Act. The Hospital and Institutional
Workers Union Local 250 represented the physical
therapy aides for purposes of collective bargaining.
In late December 1979, the physical therapists
contacted the United Physical Therapists (the
Union) and in early January all five therapists
signed union authorization cards. The Respondent
declined voluntary recognition of the Union. At a
meeting with a union representative on January 22,
the therapists decided that, in support of their
demand for recognition, they would, inter alia,
engage in a work stoppage on February 6. (The
work stoppage, however, did not occur.)
1. On January 13, Urban asked physical therapist
Shirley Baltazar why the therapists had decided to
unionize without consulting her first, whether it
was because she had been a bad "acting" chief, and
I All dates refer to 1980 unless otherwise specified.
258 NLRB No. 45
why they wanted to unionize. The Administrative
Law Judge found that Urban's questioning of Bal-
tazar concerning the union sentiments of the thera-
pists did not constitute unlawful interrogation. He
concluded that Urban's questions were calculated
to convey her personal disappointment rather than
to solicit information from Baltazar. We disagree.
It is well settled that interference, restraint, and co-
ercion under Section 8(a)(1) do not turn on em-
ployer motivation, but on whether the employer's
conduct may reasonably be said to interfere with
the free exercise of rights guaranteed to employees
under the Act. Continental Chemical Company, 232
NLRB 705 (1977); American Freightways Co., Inc.,
124 NLRB 146 (1959). Here, Urban's questions as
to why the therapists wanted unionization, includ-
ing whether it was related to her supervisory activ-
ity, served no legitimate employer purpose. In
these circumstances, we find that Urban's question-
ing constituted coercive interrogation in violation
of Section 8(a)(l) of the Act. 2
2. The Administrative Law Judge found that,
after Urban learned that a work stoppage was
planned for February 6, she asked therapy aide
Dennis Smith, on February 5, whether he would
be willing to work the following 2 days which
were his regular days off. When Smith indicated he
would not cross a picket line, Urban asked if the
therapists "pressured" him into that decision. The
Administrative Law Judge concluded that Urban's
question concerning pressure placed on Smith did
not violate the Act because the question was
prompted by a report to Urban that therapists con-
ducted improper solicitations of support on work-
ing time. We disagree. Urban made no reference to
pressure being brought to bear on Smith during
working time. Instead, her question delved into
Smith's reasons for honoring a picket line and
sought information from him concerning the union
activities of his fellow employees. The question,
therefore, was addressed to protected activity and
not to any legitimate purpose such as preventing
2 The Administrative Law Judge also found that on February 5. when
the Respondent's assistant administrator, Kramer, tried to ascertain
whether physical therapy aide Dennis Smith would work notwithstand-
ing the therapists' planned strike, Kramer asked Smith, inter alia, what he
knew about the physical therapists' organizing effort. and how he felt
about it. Kramer then spoke of the "ethical" aspect of health care em-
ployees striking. Kramer later warned Smith that he "would have to take
responsibility" for whatever he decided to do about honoring the picket.
The Administrative Law Judge found that, based on this exchange. the
Respondent violated Sec. 8(a)(1) of the Act insofar as the Respondent
threatened Smith with disciplinary action if he did not cross the thera-
pists' picket line However, although he concluded that such questioning
did not serve a legitimate purpose, the Administrative Law Judge did not
find that the questioning constituted unlawful interrogation. For the same
reasons that we find Urban's questioning of Baltazar unlawful. we find
Kramer's questioning Smith about what he knew about the therapists' or-
ganizing effort. and how he felt about it. to be unlawful.
321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicitation during working time. Such questions
are plainly coercive and unlawful. Northern Tele-
com, Inc., 233 NLRB 1374 (1977). Accordingly, we
find that Urban's questioning of Smith violated
Section 8(a)(1) of the Act.
3. The Administrative Law Judge found that on
February 21 Young called employees Marilyn
Smith and Lillian Chilgren into the departmental
office and warned them that they should "think
twice" about what they were getting into before
getting involved with the Union because the "Re-
spondent would never recognize" the Union. He
concluded that Young's warnings did not violate
the Act because they were merely offered as
Young's personal opinion on union activities. In
this connection, he noted that it was public knowl-
edge that the Respondent had refused recognition
on the basis that the Union sought to represent em-
ployees in an inappropriate bargaining unit. We dis-
agree that the personal and friendly nature of the
conversation neutralized Young's warnings. Young
was the departmental head, and she proffered her
cautionary statements during a conversation con-
ducted at her behest in the departmental office. Al-
though the conversation may have seemed friendly,
we recognize that warnings of employer retaliation
cast as friendly advice may be more credible and
have a far more coercive impact than a similar
statement by a more hostile management repre-
sentative. See, e.g., Puritech Industries, Inc., 246
NLRB 618 (1979). Further, Young's statement con-
cerning the Respondent's refusal to recognize the
Union was not conditioned by any reference to the
Respondent's position on the bargaining unit.
Rather, it was a bald assertion that the Respondent
would never recognize the Union. In these circum-
stances, we find that Young's warning Smith and
Chilgren not to get involved with the Union con-
stituted a threat of reprisal, and her statement that
the Respondent would not recognize the Union
clearly conveyed the message that the employees'
support of the Union would be futile. Accordingly,
we find that by such conduct the Respondent vio-
lated Section 8(a)(l) of the Act.
AMENDED CONCUSIONS OF LAW
Substitute the following for Conclusions of Law
3 and 4:
"3. By interrogating employees about their own
or other employees' union activities and sympathies
or their decision to seek union representation, and
by questioning employees as to whether they
would be willing to cross a possible picket line and
perform services during a prospective strike called
by a labor organization claiming to represent cer-
tain of their fellow employees, and the reason for
their decision to honor such a picket line, without
observing conventionally required safeguards rea-
sonably calculated to minimize the restraint or co-
ercion necessarily generated by such questions, the
Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
"4. By threatening employees with discipline if
they did not cross a picket line during a strike, and
with reprisals if they engaged in union activities, as
well as by suggesting that the employees' organiz-
ing efforts were futile, the Respondent committed
unfair labor practices within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Saint Luke's Hospital, San Francisco, California,
shall:
1. Cease and desist from:
(a) Interrogating employees about their own or
other employees' union activities and sympathies or
their decision to seek union representation.
(b) Questioning employees as to whether they
would be willing to cross a possible picket line and
perform services during a prospective strike called
by a labor organization claiming to represent cer-
tain of their fellow employees, and the reason for
their decision to honor such a picket line, without
observing conventionally required safeguards rea-
sonably calculated to minimize the restraint or co-
ercion necessarily generated by such questions.
(c) Threatening employees with discipline if they
do not cross a picket line during a strike, and with
reprisals if they engaged in union activities.
(d) Suggesting to employees that organizing for
purposes of collective bargaining will be futile.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which
will effectuate the purposes of the Act:
(a) Post within Respondent's San Francisco facil-
ities copies of the attached notice marked "Appen-
dix."J Copies of said notice, on forms provided by
the Regional Director for Region 20, after being
duly signed by Respondent's representative, shall
be posted by the Respondent immediately upon re-
:' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words i the notice reading "Posted by
Order of the National Labor Relations Board" hall read "Posted Pursu-
ant o a Judgment of the United States Court of Appeals Enforcing an
Order of the Nati onal L.abr Relations Board"
322
SAINT LUKE'S O()SPITAI.
ceipt thereof, and be maintained by the Respondent
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to the
Respondent's employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
APPENDIX
NOTICE TO EMPI OY ES
POSTED BY ORDER OF THE
NATIONAL LABOR REIATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees rights to engage in self-organi-
zation, to form, join, help, or support unions, to
bargain as a group through representatives freely
chosen by them, to act together for collective bar-
gaining or other mutual aid or protection, or to
refuse to do any and all of these things.
WE WILL NOT interrogate you about your
own or other employees' union activities and
sympathies or decision to seek union represen-
tation.
WE WILL NOT question you about whether
you would be willing to cross a possible picket
line and perform services during a prospective
strike called by a labor organization claiming
to represent certain of your fellow employees,
or your reason for your decision to honor a
picket line, without observing safeguards to
minimize the restraint or coercion necessarily
generated by those questions.
WE WILL NOT threaten you with discipline
if you do not cross the picket line during a
strike, or with reprisals if you engage in union
activities.
WE WILL NOT suggest that your organizing
for purposes of collective bargaining will be
futile.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed in
Section 7 of the Act.
SAINT LUKE'S HOSPITAL
DECISION
S A II1 MIN I 01 IMH CASI.
MA\!RICI' M. M I IR, Administrative Law Judge:
Upon a charge filed on February 8. 1980, by United
Physical Therapists (UPT), and duly served, followed by
a charge filed on July 2, 1980, by California Federation
of the United Physical Therapists (UPT), which was
likewise duly served, the General Counsel of the Nation-
al Labor Relations Board caused separate complaints and
notices of hearing to be issued and served on March 21
and July 24, 1980, respectively, directed to St. Luke's
Hospital, designated as Respondent within this Decision.
Herein, Respondent was charged with the commission of
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (61 Stat. 136, 73 Stat. 519, 88 Stat. 395). Con-
currently with the General Counsel's promulgation and
service of his second complaint, both cases were consoli-
dated for hearing. Respondent's answers, separately filed
with respect to each of the General Counsel's com-
plaints, conceded certain factual allegations therein, but
denied the commission of unfair labor practices.
Pursuant to notice, a hearing was conducted with re-
spect to these consolidated matters on August 5, 6, and
7, 1980, in San Francisco. California, before me. The
General Counsel and Respondent were represented by
counsel; complainant was represented by its acting ex-
ecutive secretary-treasurer. (When the hearing convened,
the General Counsel's representative moved to amend
his first-issued complaint herein, charging Respondent
with certain additional 8(a)(1) unfair labor practices. The
motion was granted Respondent's first amended answer
with respect to the General Counsel's first complaint,
which had previously been filed, contained pertinent de-
nials which-pursuant to consensus-were mutually "un-
derstood" to compass Respondent's denials with respect
to the General Counsel's further allegations, supplied by
amendment.)
Each party was afforded a full opportunity, thereafter,
to be heard, to examine and cross-examine witnesses, and
to introduce evidence with respect to pertinent matters.
Since the hearing's close, the General Counsel's repre-
sentative and Respondent's counsel have filed compre-
hensive, well-drafted briefs; these briefs have been duly
considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following findings of fact:
1. JURISDICTION
Respondent raises no questions, herein, with respect to
the General Counsel's jurisdictional claims. Upon rele-
vant factual allegations-specifically, those set forth in
detail within the second and third paragraphs found in
the General Counsel's separate complaints-which are
conceded to be correct, and on which I rely, I find that
Respondent was, throughout the period with which this
case is concerned. and remains, an employer, within the
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 2(2) of the Act, engaged in com-
merce and business operations which affect commerce
within the meaning of Section 2(6) and (7) of the statute,
and a health care institution within the meaning of Sec-
tion 2(14) of the Act, as amended. Further, with due
regard for presently applicable jurisdictional standards, I
find assertion of the Board's jurisdiction in this case war-
ranted and necessary to effectuate statutory objectives.
II. COMPLAINANT LABOR ORGANIZATION
Upon this record, considered in totality, I find that
United Physical Therapists, and California Federation of
the United Physical Therapists, constitute alternative
names for a single organization which will be designated
Complainant herein. When this case was heard, Com-
plainant's executive board-so the record shows-was
considering constitutional modifications which would
expand that document's definition of those whom Com-
plainant would admit to membership; concurrently with
such changes, Complainant would be renamed United
Physical Therapists and Associated Medical Profession-
als, Local No. i. These changes, however, had not-
theretofore-been effectuated.
Complainant has, throughout the period with which
this case is concerned, functioned as a labor organization,
within the meaning of Section 2(5) of the Act, as amend-
ed. It admits certain of Respondent's employees to mem-
bership.
III. UNFAIR LABOR PRACTICES
A. Issues
This case, which derives from several developments,
conversations related thereto, and confrontations within
a 6-month period, presents several substantive questions,
which have been thoroughly litigated. For present pur-
poses, these questions may be summarized, generally, as
follows:
1. Whether several of Respondent's management rep-
resentatives-separately on several occasions-ques-
tioned employees with regard to their union activities
and the concurrent union activities or sympathies of their
fellow departmental employees, commented that their
support for Complainant herein, would be futile, since
Respondent would never recognize that organization as
their representative, and threatened to discipline employ-
ees should they persist in conducting themselves as Com-
plainant's supporters.
2. Whether more onerous terms and conditions of em-
ployment were imposed upon certain of Respondent's
employees because of their activities in Complainant's
behalf.
3. Whether a letter of reprimand, given to Physical
Therapist Shirley Baltazar, purportedly because of her
presumed insubordination, had really been motivated by
Respondent's desire to discourage her membership in
Complainant, or her activities in Complainant's behalf.
With respect to these questions, the General Counsel's
representative seeks affirmative determinations. Respond-
ent contends, contrariwise, that its letter of reprimand,
delivered to Baltazar, represented nothing more than
management's privileged response to conduct which Bal-
tazar's superiors legitimately considered insubordinate;
that whatever changes management representatives may
have directed, with respect to certain terms and condi-
tions of employment, had been dictated by business con-
siderations, or Respondent's desire to maintain compli-
ance with state-mandated requirements; and that particu-
lar statements or conduct, purportedly chargeable to
management representatives, should be considered either
personal comments devoid of coercive purpose or thrust,
privileged "views, argument or opinion" statutorily
beyond Board proscription, comments or conduct justi-
fied by business necessity, or merely "isolated" transgres-
sions, which should not be deemed sufficiently serious to
warrant Board cease-and-desist directives.
B. Facts
Preliminary Statement
The record, herein, reflects the differentiated testimo-
ny of numerous witnesses, particularly with respect to
statements made, and positions taken, by several of Re-
spondent's physical therapists-with whom this case is
primarily concerned-their direct supervisors, and Wil-
liam Kramer, Respondent's designated assistant adminis-
trator, clearly a management representative. Some credi-
bility determinations-with respect thereto-will, there-
fore, be required. In that connection, certain preliminary
comments-within my view-would be warranted.
The witnesses presented-whether summoned in the
General Counsel's or Respondent's behalf-impressed
me, without exception, as persons determined to tell the
truth, with regard to all related matters, derived from
their respective best recollections. Nevertheless, partici-
pants in possibly significant conversations, or particular
situations which presumably have-retrospectively-
become invested with significance when reviewed during
litigation, may frequently proffer variant testimonial re-
citals. Their respective capacities as listeners or observ-
ers, their ability to recall prior statements or conduct-
precisely-despite fallible human memories, and their re-
spective capacities to report their recollections, compre-
hensively and correctly, may differ. In some cases, sub-
conscious rationalizations, derived from "afterthoughts"
merely, may have colored their memories. Mindful of
these possible explanations for differentiated or variant
testimonial proffers, I have bottomed my factual determi-
nations herein-not upon the testimony of some particu-
lar witness, or several witnesses, whom I have consid-
ered generally credible-but upon their composite recol-
lections, synthesized, when those synthesized recollec-
tions provide a factual picture consistent with logical
probabilities. In that connection, I have-throughout-
considered, not merely their comparative witness-chair
behaviour patterns (cf. Maremont Corporation, 229
NLRB 746, fn. 1 (1977)), but-likewise-the complete
record. See Penasquitos Village, Inc., et al. v. N.L.R.B.,
565 F.2d 1074 (9th Cir. 1977). More particularly, I have
considered whether their testimonial recitals reveal "in-
ternal" consistency, whether their proffered recollections
have been, or have not been, buttressed with collateral
record support, and-as previously noted-whether their
324
SAINT LUKE'S HOSPITAL
testimony could reasonably be deemed consistent with
the natural logic of probability. Further, I have proceed-
ed with due regard for those frequently cited judicial
pronouncements wherein a trier of fact's proper role has
been comprehensively defined. See, particularly, Univer-
sal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496 (1951);
N.L.R.B. v. Walton Manufacturing Company & Loganville
Pants Co., 369 U.S. 404, 408 (1962); and N.L.R.B. v. J. P.
Stevens & Co., Inc., et al., 464 F.2d 1326, 1328 (2d Cir.
1972), in this connection. My factual determinations
herein-therefore-will reflect little concern with minor,
inconsequential, testimonial differences; major testimonial
conflicts, with respect to material matters, will-howev-
er-be considered and resolved.
1. Background
a. Respondent's physical therapy department
Respondent maintains a hospital, located in San Fran-
cisco, California, which provides both inpatient and out-
patient medical and health care services. Some 800 em-
ployees perform varied services within Respondent's fa-
cility. More than half of these workers are represented,
for collective-bargaining purposes, by several different
labor organizations. Respondent is currently privy to col-
lective-bargaining contracts, negotiated on behalf of a
multiple-employer hospital group, with Hospital and In-
stitutional Workers Union, Local 250, and Stationary En-
gineers, Local 39. Further, it maintains contractual rela-
tions with the California Nurses Association, the Painters
Union, and Hotel and Restaurant Employees and Bar-
tenders Union, Local 2.
The hospital's physical therapy department, through-
out the period subsequent to December 1979, with which
we are presently concerned, consisted of five physical
therapists, supervised by a chief physical therapist and
assistant chief; further, the department's staff compassed
three hospital attendants, two of them newly hired, who
functioned as physical therapy aides, plus a single office
clerical worker. Before January 1980, Respondent's
physical therapists had never-so far as the record
shows-sought collective representation. Respondent's
hospital attendants, within its various departments, had-
however-been represented, for some time by Local 250,
Hospital and Institutional Workers Union; their job clas-
sification had been considered compassed within the
broadly defined group which Local 250's contract cov-
ered.
By December 1979, when the situation with which this
case is concerned began to develop, the physical therapy
department's chief, Kam Young, had been absent from
work on maternity leave for some 3 months; her recently
designated assistant chief, Sue Urban, had been, then,
functioning as the department's acting head, subject to
the general supervision of William Kramer, Respondent's
assistant administrator. Young subsequently returned
from her maternity leave, specifically on January 21,
1980, at which time she resumed her supervisorial duties
and responsibilities.
b. The department's revised work schedule
Before January 1980, Respondent's physical therapy
department had been maintaining a 6-day program. Sat-
urday patient services were being provided pursuant to a
staff rotational schedule which, on its face, required
therapists to work one Saturday out of four. Respond-
ent's management, however, had been considering the
department's conversion to full 7-day operations for
some time.
By mid-year 1979, Respondent and St. Mary's Hospital
were the only two San Francisco hospitals which did not
provide physical therapy treatments for patients through-
out each calendar week. However, St. Mary's, during
late 1979, was-so Respondent's management under-
stood-converting its physical therapy department to 7-
day operations.
With management's conversion decision finally
reached, steps were being taken by October 1979 to aug-
ment the department's staff to some level which would,
presumably, permit 7-day operations. By November
1979, the department's staff complement had reached the
five therapist-three aide level previously noted. Respond-
ent's physical therapists, I find, had been notified-
during "several" weekly departmental staff meetings-
that both newly hired aides had been engaged so that
their department's "weekend coverage" needs could be
satisfied, and Respondent's conversion to a 7-day system
facilitated.
Respondent's assistant administrator, however, never-
theless decided-so his credible, undenied testimony
shows-that the department's planned conversion should
be delayed, pending the passage of calendar year 1979's
forthcoming holiday season; he considered the yearend
holiday period, so he testified, a poor time during which
to effectuate changes. Kramer suggested, therefore, that
some date shortly after January I should be designated
the department's target date.
Late in December 1979, Respondent's acting chief
therapist, Sue Urban, convened a departmental staff
meeting; the physical therapists present were notified
that Respondent was "tentatively" planning to begin pro-
viding Sunday physical therapy services on January 13,
1980, thereafter.
2. Respondent's physical therapists seek
representation
a. The therapists communicate with Complainant
The record warrants a determination, which I make,
that Respondent's physical therapists were resistant when
confronted with the prospect of Sunday work. During a
late December 1979 meeting at Physical Therapist Shir-
ley Baltazar's home, they discussed Respondent's pros-
pective conversion; further, they decided to consider
possible union representation. United Physical Therapists
had, shortly prior thereto, been founded. Baltazar had, so
the record suggests, received notices regarding its forma-
tion.
On December 27, Baltazar telephoned Complainant's
executive secretary-treasurer. She described Respond-
ent's proposed 7-day work schedule; further, she report-
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed that she and her fellow therapists were considering
some sort of job action which would demonstrate their
displeasure over Sunday work prospects. Bond cautioned
Baltazar that such a course might be ill-advised; he sug-
gested his willingness to meet with the therapists' group.
When Respondent's therapists, subsequently, accepted his
suggestion, Baltazar arranged a meeting set for January
2, 1980, again at her home.
In the meantime, during late December and January,
Acting Chief Therapist Urban had been trying to draft a
work rotation schedule which would permit Respondent
to provide Sunday therapy services, while generating
minimal problems for her department's staff. On January
2, during a staff conference, Urban distributed scheduling
sheets to some of her departmental personnel; she invited
them to draft possible schedules so that the subject could
be canvassed and some scheduling decision reached,
during a further meeting set for the following afternoon.
That evening, when four of Respondent's five full-time
therapists met with Complainant's executive secretary-
treasurer, he suggested that, should they desire Com-
plainant to represent them, they should sign authoriza-
tion cards. This, all four therapists did, following Bond's
departure. When Respondent's fifth full-time therapist-
who had not been present at Baltazar's January 2 home
meeting-signed a card the next day, Baltazar promptly
telephoned Complainant's representive; she notified him
that designation cards, signed by Respondent's five thera-
pists, had been mailed to him. Bond declared that he
would request Respondent to recognize Complainant as
their collective-bargaining representative.
b. Complainant demands recognition
Within a letter, dated January 3 and directed to Joseph
Zem, Respondent's administrator, Complainant's execu-
tive secretary-treasurer promptly requested recognition.
Further, he requested that Respondent's contemplated
changes-particularly with respect to work schedules
within the physical therapy department-be deferred,
pending Complainant's presentation of some "complete
written" contract proposal.
Concurrently-during the scheduled January 3 late
afternoon conference with her departmental staff, previ-
ously noted herein-Acting Chief Therapist Urban dis-
cussed various alternative 7-day work schedules. Having
received very few comments or positive responses, she
finally presented a schedule which, she declared, their
department would adopt, in the absence of dissent, Even-
tually, with a somewhat "hesitant" show of hands, the
therapists signified their acceptance of Urban's proposed
schedule; she declared, then, that the schedule would be
implemented, starting on Sunday, January 13, thereafter.
Essentially, Urban's draft schedule required two regu-
lar staff therapists to commence work, consistently there-
with, on Sunday, June 13. These therapists were to work
5 days-Sunday through Thursday-with Friday, Satur-
day, and their following Sunday free; then they would
be required to perform services for another 5 days-
Monday through Friday-with only their following Sat-
urday free. This 2-week cycle-designated as their "five-
three, five-one" cycle-would then be repeated. Mean-
while, two more therapists-with Urban providing regular
services as part of the team-would be required to work a
reciprocally reversed "five-one, five-three" 2-week cycle,
first Monday through Friday, and then Sunday through
Thursday. One staff therapist would be given a fixed
Monday through Friday schedule, with conventionally
free weekends; Respondent's remaining staff therapist
would be required to work a fixed 5-day, Tuesday
through Saturday, week-with Sundays and Mondays
free. The department's newly hired aides were likewise
given fixed schedules. One, like the therapist noted,
would be required to work Tuesday through Saturday,
with Sundays and Mondays free; and the second-
Dennis Smith-would be required to work 5 days within
a split calendar week, with Wednesdays and Thursdays
as his regular free days.
These schedule arrangements were subsequently modi-
fied slightly; however, save as may be noted specifically
hereinafter, those modifications did not affect the basic
situation with respect to which the General Counsel's
representative currently seeks Board consideration and
remedial directives.
c. Respondent's reaction
On January 4, shortly after noon-when Urban went
to Assistant Administrator Kramer's office to pick up her
department's paychecks-she was shown Bond's letter,
wherein Respondent had been requested to recognize
Complainant as collective-bargaining representative for
its registered physical therapists specifically. Kramer had
received it from Respondent's administrator earlier that
day. The record warrants a determination, which I make,
that Urban was asked whether she had been vouchsafed
some "inkling" that anything of the sort would material-
ize. When she disclaimed prior knowledge, Kramer told
her that the situation was a delicate one; that the thera-
pists were engaged in protected activity; and that she
should be "discreet" with respect to what she said and
did, thereafter.
When Respondent's acting chief therapist returned to
her department's office, however, she found therapists
Baltazar and Barbara King waiting for her. Urban was
told, so I find, that Respondent's therapists had decided
to unionize, and had joined Complainant herein. The
acting chief therapist replied that she had already heard
the news from the hospital's administration.
Within his brief, the General Counsel's representative
requests a factual determination that Urban's comments
continued; that she declared her "wish" that she had
been told beforehand; and that she had, finally, asked
why the therapists had unionized. No such factual deter-
minations, however, would be warranted, within my
view. Though Therapist Barbara King did testify that
Urban had questioned her nominal subordinates with re-
spect to "why [they] did" seek unionization, Baltazar's
proferred recollections provide no corroboration, par-
ticularly with respect thereto. Baltazar recalled, merely,
Urban's dismayed cri de coeur, that she wished she had
been told in advance. Mindful of Urban's witness-chair
declaration-consistently with Baltazar's rather than
King's testimony-that she "thought" she had merely
asked her subordinates, rhetorically, why they had not
326
SAINT LUKE'S HOSPITAL
communicated with her, presumably regarding their dis-
contents, I cannot find the General Counsel's conten-
tion-that she had, further, questioned them improperly
with regard to why they had unionized-preponderantly
established.
Upon this record, no definitive factual determina-
tions-that Urban did more than declare, further, her
personal "utter dismayzement [sic]" regarding the situa-
tion-would, within my view, be warranted.
Within a letter, dated and dispatched on January 9,
Complainant's executive secretary-treasurer was notified,
by Respondent's counsel, that his organization's request
for recognition could not be complied with, since the
bargaining "unit" with respect to which representative
status had been claimed was improper; further, Bond was
advised that Respondent doubted Complainant's majority
representative status, within the "improper unit" with re-
spect to which it had been claimed, or within any other
bargaining unit which might be deemed appropriate.
On January 10, when Bond told Respondent's five
therapists that he had received a letter from Respond-
ent's counsel proclaiming the hospital's refusal to recog-
nize Complainant as their collective-bargaining repre-
sentative, they declared their desire to pursue the matter,
through some form of concerted action, should that
prove necessary. Consistently with their desires, Bond
dispatched registered mail letters later that day directed
to Respondent and the Federal Mediation and Concilia-
tion Service; both were notified that, following the expi-
ration of their required 10-day notice period, the con-
cerned therapists and their organization would "engage
in concerted action" directed against Respondent's hospi-
tal policy. The nature, location, and precise timing of
their projected "concerted action" were not, however,
specified.
On Sunday, January 13, pursuant to plan, Respond-
ent's physical therapy department commenced its 7-day
operations schedule; Baltazar and Urban were scheduled
to provide required services. During their lunch period,
so Baltazar testified, they had a conversation, pursuant to
Urban's request. Baltazar's proffered recollections, with
respect thereto, warrant determinations, which I make,
that Urban asked why Respondent's therapists had decid-
ed to unionize, especially without consulting her before-
hand; that she (Baltazar) had, when replying, cited their
reluctance to confide in someone holding a supervisory
position; and that Urban had, thereupon, confessed her
personal inability to understand why Respondent's thera-
pists desired unionization, while querying Baltazar, fur-
ther with respect to whether she (Urban) had been con-
sidered a bad "acting" chief. Baltazar explained that their
"main problem" had been Respondent's new Sunday
work requirement, which had been imposed without con-
sultation. When Urban commented that she "knew" from
prior statements by Baltazar and Therapist Lily Chilgren
that they favored unionization, Baltazar conceded the
point; Urban then declared that she felt labor organiza-
tions were "bad things" which interfered with work,
generally. Replying, Baltazar cited her "feeling" that
staff therapists needed some kind of voice within the de-
partment. Their conversation concluded with Urban's
confession that she was "taking" the situation personally;
that she felt "hurt" because of the tensions which had
developed within the department's professional staff, im-
pairing the "good rapport" which had prevailed between
them; and that she did not want continued "bad feelings"
between herself and departmental staff members.
d. The therapists propose a work stoppage
On January 22, Respondent's staff therapists conferred
with Complainant's executive secretary-treasurer regard-
ing further courses of action; they decided that they
would distribute leaflets in support of their demand for
recognition by Respondent's management, station infor-
mational pickets at Respondent's various entrances, and
conduct a work stoppage. Pursuant to this decision,
Bond dispatched a January 24 letter to the Federal Medi-
ation and Conciliation Service, with copies to Respond-
ent and the California Mediation and Conciliation Serv-
ice likewise. They were notified that Complainant's
members planned a Sunday, February 3, leaflet distribu-
tion; that informational picketing and further leaflet dis-
tributions would be conducted on February 4 and 5 at
Respondent's hospital facility; and that Respondent's
therapists planned to "withdraw their services" on
Wednesday, February 6. Bond's letter, further, declared
that registered physical therapists throughout the State
would be requested to honor Complainant's picket lines.
e. Respondent's reaction
On Friday, February 1, Respondent's physical therapy
aide, Dennis Smith, was approached by Assistant Chief
Physical Therapist Urban. She told him that Respond-
ent's staff therapists might be withdrawing their services
on Wednesday, February 6; Smith was asked whether he
would be willing to work overtime on February 6 and
the following day, which would be his regularly sched-
uled "days off' pursuant to Respondent's departmental
work schedule.
Smith, though classified as a hospital attendant, had
been working in Respondent's physical therapy depart-
ment as a physical therapy aide since October 28, 1979.
Hospital and Institutional Workers, Local 250, represents
Respondent's hospital attendants, and Smith was a
member of that organization.
Smith replied that he would have to check with his
union before he could give Urban his response. The as-
sistant chief physical therapist acquiesced.
On February 3, Respondent's staff therapists distribut-
ed informational handbills at San Francisco's Grace Ca-
thedral; since Grace Cathedral is an Episcopal church,
and since Respondent is affiliated with that denomina-
tion, Respondent's therapists hoped, so Baltazar testified,
that the church's leaders, because of their appeal, would
persuade or permit Respondent to grant Complainant
recognition as their representative.
Thereafter, on February 4, Complainant filed a repre-
sentation petition with the Board's Regional Office (Case
20-RC-15002); the organization sought certification as
the representative of Respondent's registered physical
therapists, exclusive of their supervisors.
With matters in this posture, Urban sought Smith,
once more, on Tuesday, February 5: she asked whether
327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would work on Wednesday and Thursday, thereafter.
Smith declared that he had decided to support the staff
therapists' demand for Complainant's recognition as their
representative and that he would not cross their picket
line, should they commence a strike. When asked wheth-
er Respondent's therapists had "pressured" him into
making that decision, Smith responded negatively, de-
claring that he was a union member and that he had
reached his decision on his own.
Testifying in Respondent's behalf, Urban claimed that
she had spoken to Smith, on February 5, because another
physical therapy aide, Carol DaMasco, had, previously
that day, reported that Therapist Sandy Wilson had,
prior thereto, been trying, during working hours, to per-
suade both her and Smith to join their Union and partici-
pate in their projected strike. The assistant chief therapist
declared that she had, shortly thereafter, reported Da-
Masco's complaint to Respondent's assistant administra-
tor, and that Kramer had suggested she should bring
Smith down to his office. Urban's testimony, summarized
herein, does not mesh, chronologically with Smith's
proffered recollections; though I credit the assistant chief
therapist's proffered recollection that Carol DaMasco
had, that day, reported, prior February 1 conversational
"pressures" purportedly chargeable to Therapist Sandy
Wilson, I have credited the physical therapy aide's testi-
mony with regard to the general course of the February
5 developments.
Urban commented, so I find, that Smith did not know
"everything" that their situation involved; he reiterated
his belief that Respondent's staff therapists had a right to
organize and choose a bargaining representative, that the
hospital's management was being stubborn, and that he
could not cross a therapist's picket line.
Shortly thereafter, Urban sought Smith, again; she re-
quested him, then, to accompany her to Kramer's office;
the assistant administrator, I find, had requested her to
do so. When Smith, however, requested a chance to see
a union representative first, he was told that would not
be necessary.
Prior to Smith's arrival, Kramer had, so I find, tele-
phoned Local 250's business representative. Having been
told, by Business Representative Klein, that Smith had
not, yet, communicated with him, Kramer had requested
him to visit Respondent's facility "to clarify the situation
. . .from the union point of view" during meetings with
Smith and his fellow Local 250 members, within the hos-
pital's physical therapy department. Klein had agreed.
When Smith and Urban, subsequently, reached
Kramer's office, Kramer opened their conversation by
asking Respondent's physical therapy aide whether he
enjoyed working for their hospital, and whether he
thought he had been treated fairly. Smith conceded that
he enjoyed his work, that he considered his job the best
one he had ever had, and that he thought he had been
treated fairly, to that point.
My factual determinations, with respect to this conver-
sation's general course, derive primarily from Smith's
proffered recollections. While a witness, Kramer cor-
roborated the physical therapy aide's testimonial recitals,
generally. However, with respect to certain conversa-
tional exchanges-which Smith had recalled and reca-
pitulated during the hearing-the record herein reflects
neither Kramer's corroboration nor his denials; Smith's
proffered recollections, with respect thereto, have been
credited.
Kramer asked, then, whether Smith knew about Com-
plainant and the physical therapists' organizing efforts in-
volving that organization. Smith conceded such knowl-
edge; he was then asked how he "felt" about the thera-
pists' efforts, and whether he "thought" they had fol-
lowed correct legal procedures, while pursuing self-orga-
nization and choosing a bargaining representative. When
the therapist's aide responded affirmatively, Kramer
commented that they had not followed correct proce-
dures, since they were seeking recognition within a sepa-
rate bargaining unit limited to therapists, which would
not be considered proper.
While a witness, Kramer conceded that he had told
Smith that Complainant had a right to petition the Board
for an election, but had not done so, in his opinion, be-
cause they knew that a bargaining unit limited to physi-
cal therapists would be considered inappropriate. Pre-
sumably, Kramer had not yet been apprised of Complain-
ant's petition, filed the previous day.
Respondent's assistant administrator declared, further,
that the staff physical therapists did not have sufficient
reasons for pursuing self-organization, and had not con-
veyed their reasons for doing so to Respondent's man-
agement before choosing a bargaining representative.
Smith reiterated his belief that Respondent's therapists
had a legal right to choose such a representative. At this
point, so Smith testified, he was asked if he thought it
was "ethical" for health care workers, like Respondent's
therapists, to leave patient care "hanging" while they
struck. The tharapist's aide replied that he felt employee
concerns were as important as patient care. When asked,
then, whether he thought employee concerns were more
important than patient care, Smith declared he consid-
ered them equally important. Kramer responded, so I
find, that persons who thought employee concerns came
before patient care should not work for Respondent
herein.
At this point, so Smith testified, he was asked, specifi-
cally, whether he would work overtime the following
day. The aide reiterated his desire to "check" with Local
250's business representative with regard to what he
should do if there were a picket line. With Smith's prom-
ise to do so, his conversation with Kramer concluded.
Late that afternoon, Chief Physical Therapist Young
summoned Smith to her departmental office; she de-
clared their "need to go down" for a further conversa-
tion with Kramer.
As previously noted, Young had returned from mater-
nity leave on January 21. Her contact with Smith on this
occasion, however, was her first-so far as the record
shows-which derived from the situation created by
Complainant's recognitional demands.
When Smith protested that thus far he had not been
able to communicate with Local 250's business repre-
sentative, with whom he wished to confer, Young said
she "thought" that Business Representative Klein was,
328
SAINT LUKE'S HOSPITAL
then, down in Kramer's office. On this representation,
Smith acquiesced.
In fact, Respondent's assistant administrator, who had
been notified by Young that Smith was still determined
not to report for work the following day, had telephoned
Klein, who had reported that he could not, then, visit
Respondent's facility. Kramer had explained the situation
with which Respondent was confronted; Klein and Re-
spondent's assistant administrator had "agreed" that
Klein would speak with Smith by telephone.
When the therapist's aide reached Kramer's office, he
was queried again with respect to whether he would be
willing to work overtime "in light of' his department's
impending strike. Smith reiterated his desire to consult
with Local 250's business representative before giving
Kramer a direct response. He was given Local 250's tele-
phone number; Kramer and Young then left Kramer's
office, closing the door, so that Smith could telephone
and speak with Klein privately. Smith telephoned; he
told Local 250's business representative that he was
being requested "to work overtime on [his] days off, to
cover for the possible striking therapists" and requested
advice with respect to what his response should be.
Klein opined that Smith should not "have to work" on
scheduled days off, but requested a chance to speak with
Kramer, further. Following his telephone conversation
with Kramer, which had likewise been privately con-
ducted, Local 250's business representative told Smith,
during their renewed talk, that-consistently with the
National Labor Relations Act's provisions specifically
concerned with health care workers-hospital adminis-
trations could "require" such workers to provide over-
time services, during emergency situations, specifically
on their scheduled nonwork days.
Klein's comment, presumably, conveyed his under-
standing with respect to Respondent's position. While a
witness herein, Kramer recalled that-during their con-
versation-Local 250's business representative had de-
clared his view that Smith could be required to work his
regular schedule, but that he could not be required to
work overtime. Kramer had, so he testified, proclaimed
his contrary view.
When Smith asked what might happen should he
refuse to cross a possible picket line and refuse to work
overtime, Klein declared that he could "lose [his] job"
legally. The therapist's aide reiterated his determination,
nevertheless, that he would not cross a picket line, and
that he would not work overtime; Klein stated that he
"understood ... and . . . respected" that decision.
Their conversation then terminated.
When Kramer, thereupon, queried Smith with respect
to whether he "understood" that Respondent could re-
quire him to work overtime "in light of" an emergency,
the therapist's aide declared that he had been so in-
formed, but that he would choose not to work "over-
time" should that mean he would be required to cross a
picket line. Some further discussion, so I find, followed;
with respect thereto, Smith testified credibly that:
He [Kramer] said that it was not ethical to leave pa-
tient care hanging in an emergency situation, and I
said that there would be no emergency if the hospi-
tal would simply recognize the UPT as the thera-
pists' chosen bargaining agent. [And] he said that
. . .the hospital administration's relationship to the
UPT was none of my business, and how they chose
to define a situation as an emergency was none of
my business. I said that it was my business because I
was being asked to work overtime on my days off
and that I was involved . . . [and] he said that I ob-
viously didn't care about the patients, if I wasn't
willing to do this and that he couldn't understand
how I could consider myself a responsible health
worker. I said that I thought I was . . . but that I
could not cross the therapists' picket line the next
day.
With matters in this posture, Kramer declared, so his tes-
timony, conjoined with Smith's, shows, that the physical
therapist's aide "would have to take responsibility" for
whatever he decided to do. Kramer did not, further,
define what his statement meant; while a witness, herein,
he declared, however, that he had then determined,
merely, to consult with counsel, to determine what his
"options" would be.
Smith's resolve to withhold his services, however, was
never tested; Respondent's physical therapists never car-
ried through with their February 6th strike projection.
While a witness, Baltazar proffered a somewhat cryp-
tic explanation for the projected the February 6 strike
postponement. She testified that Respondent had, there-
tofore, filed the January 18 charges with the Regional
Office (Case 20-CG-16) wherein Complainant's previ-
ously dispatched the January 10 notices-with respect to
prospective "concerted action" generally, which Com-
plainant's members intended to take at some never speci-
fied future date following a statutorily mandated notice
period's expiration-had been challenged for their lack
of specificity. For present purposes, however, no deter-
minations would presently seem required with respect to
whether claimed deficiencies within Complainant's first-
served notice letters had, really, prompted the therapists'
postponement of their subsequently proclaimed and proper-
ly noticed February 6 strike, or with respect to whether
their presumed concern, regarding possible deficiencies
within their January 10 and/or January 24 notice letters,
had really been justified.
The therapists had, consistently with their second, Jan-
uary 24 notice letters, maintained "informational" pickets
close to Respondent's facility since February 4; their
picketing continued-so Baltazer testified without con-
tradiction-daily, through February 19, save on week-
ends.
3. Respondent's changes in working conditions
a. Work schedule practices before Respondent's
January 13 changes
As previously noted, herein, Respondent's physical
therapy department, before January 13, 1980, had been
maintaining a 6-day work schedule. Saturday work had
been covered as follows: One therapist, Sandra Wilson,
had worked a regular 5-day Tuesday-through-Saturday
week. Respondent's four remaining staff therapists, regu-
329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
larly or temporarily employed during calendar year
1979's latter months, had followed staggered 4-week
cycles. Each would work 6 days, Monday through Sat-
urday, within I week, followed by a 4-day, Monday-
through-Thursday tour of duty within the next succeed-
ing week. They would then be scheduled for a 5-day,
Monday-through-Friday, tour for the next 2 weeks. In
consequence, each therapist-pursuant to the previously
defined rotation schedules-would successively work
one Saturday in four; each would next work a 4-day
week, with Friday free, which would give her a 3-day
weekend break. Their normal 5-day workweeks would
follow.
The record warrants a determination, which I make,
that Respondent's therapists would occasionally work
overtime. Sometimes they received overtime premium
pay for such work; sometimes, however, they were per-
mitted to accrue overtime-hours credit and take compen-
satory time off later. They were not paid overtime pre-
mium rates for their Saturday work during 6-day weeks.
Instead, their Friday free day, scheduled during their
next succeeding week's tour, was considered "compensa-
tory" free time, whereby their 6-day, 4-day schedule,
presumably, could be averaged to reflect 10 days-80
hours-worked within a 2-week period.
In practice, however, these schedules were frequently
modified. Therapists were permitted to sometimes defer
their scheduled Friday free days, and likewise to accrue
further "compensatory" time-so that they could take
deferred or accrued time off on some desired day within
a subsequent workweek-when their plans would not in-
terfere with patient care. Further, Respondent's thera-
pists were permitted to negotiate exchanges with respect
to their scheduled Saturday workdays; such exchanges,
when arranged, were merely noted on their department's
calendar.
Likewise, before January 13, 1980, some relatively
"loose" timecard practices had been tolerated within the
department. Timecards were, frequently, not punched by
therapists to record their daily starting times, their lunch
period breaks, or their departure times. Further, thera-
pists maintained no timeclock "punch" records, with re-
spect to their scheduled Saturday work. When therapists'
timecards, then, were "punched" by supervisors-acting
for their subordinates-those cards were signed by the
supervisor, whether Young or subsequently Urban; the
latter did so while serving as acting chief therapist,
during Young's maternity leave.
Respondent's physical therapy department maintained
a regular 8:30-5, 8-1/2-hour workday. However, depart-
mental employees were, supposedly, permitted a one-half
hour lunch period, plus two 15-minute, mid-morning and
mid-afternoon, breaks; consequently, they were sched-
uled to provide 7-1/2 hours of service, for which they
would receive 8 hours' pay. For some time prior to Jan-
uary 13, however, the department's therapists had been
permitted to "tack" their 15-minute break periods to
their lunch period, so that they could take I hour for
lunch. Everyone lunched at the same time. Then, two
therapists were-pursuant to special arrangements nego-
tiated with their supervisors for persuasive personal rea-
sons-permitted to take shortened, less than 1 hour,
lunch periods, and then leave work before Respondent's
regular 5 o'clock departure time. In effect, they were
being permitted to work less than 7-1/2-hour days, since
they were leaving work "early" without having taken, or
benefitted from, either their two state-mandated, mid-
shift rest periods, or those rest periods' lunch hour equiv-
alents.
b. Work schedule practices following Respondent's
commencement of 7-day operations
During the 4-week period which followed the physical
therapy department's conversion to rotated 7-day work
schedules, most of the department's deviations from
standard, management-mandated hospital procedures
hereinabove noted, continued without change. Time-
cards, save for their "punched" starting time entries,
were still being handled and signed by departmental su-
pervisors-first by Urban, then by Young, following her
January 21 return from maternity leave. Scheduled
Sunday work tours were being shifted or mistakenly re-
corded. I note, inter alia, that Baltazar's timecard, for the
January 13-26 pay period contains no record with re-
spect to her Sunday, January 13, services, though both
she and Urban testified that they had worked together
that day.
Compensatory free time was still being accrued and
shortened lunch periods were still being permitted, so
that therapists might manage early departures. For exam-
ple: On January 28th, Baltazar told Young that Urban
had, since October 1979, permitted her to take a 45-
minute lunch period and leave work 15 minutes early be-
cause she had "babysitter" problems. The therapist re-
quested Young's consent to continue these arrangements.
Young replied that Baltazar could continue, so long as
her practice did not interfere with her patient care re-
sponsibilities.
On or about February 20, Chief Physical Therapist
Young discovered that Therapist Barbara King had pre-
viously taken compensatory leave on February I based
on so-called comp day credits earned during December
1979; she further discovered that King had likewise
banked "two or three" days of compensatory leave
credit during January, which she had neither claimed
nor designated for future use. Because she was con-
cerned, regarding the possibility that Respondent's physi-
cal therapy department might be confronted with sched-
ule management problems should King take such poten-
tial "compensatory" leave-pursuant to her sole discre-
tion-thereafter, Young requested the therapist to "take
a day off' shortly.
While a witness, Young detailed the scheduling prob-
lems which might conceivably develop-with respect to
her department's new 7-day treatment program-should
the therapists herein be permitted to schedule their
"compensatory" leave days pursuant to their concepts of
personal convenience and without Respondent's prior
concurrence. For present purposes, however, her testi-
monial recapitulation with respect thereto, which I find
well reasoned, need not be detailed.
330
SAINT LUKE'S HOSPITAL
King, however, refused to schedule a compensatory
leave day forthwith; she declared that she had formulat-
ed no "plans" with respect to such possible free time.
With matters in this posture, Young consulted Kramer;
she detailed her concerns, generated by King's refusal to
take compensatory leave. Respondent's assistant adminis-
trator questioned her further, however, with regard to
departmental scheduling practices. He learned-so his
credible, undenied, testimony shows-that the physical
therapy department's timecards were not being handled
or maintained consistently with management-mandated
procedures: that the department's new "five-one, five-
three" work schedule was not being followed strictly:
that some therapists had been taking shortened lunch pe-
riods and leaving work prematurely: and that therapists
who might work a sixth day or provide other defined
"overtime" services-within a 7-day period--were being
given "compensatory" leave credits, merely, rather than
overtime premium pay. Kramer told Young that these
practices violated State of California Industrial Welfare
Commission orders; he directed her to take corrective
action, forthwith, specifying the changes which should
be made in her department's practices. In particular,
Young was, so I find, directed to maintain the physical
therapy department's newly fashioned work schedules,
without deviation.
c. Respondents February 20 Directives
On February 20, Young convened a departmental staff
conference. Respondent's physical therapists were noti-
fied that some changes in departmental policy would be
made, pursuant to Assistant Administrator Kramer's di-
rection. More particularly, the therapists were told that
their timecard practices, which had previously become
rather loose, would have to conform with Respondent's
standard policies. Specifically, they were notified that
they would be required to punch their own timecards;
that they would have to punch in when they started,
punch out, and then back in, for lunch periods, and
punch out when their day's tour of duty ended; and that
timeclock records would have to be kept for their Satur-
day and Sunday duty tours.
They were told, further, that they would be required
to work regular 8:30 a.m.-5 p.m. hours, and that Balta-
zar's arrangement-whereby she took a shortened lunch
period break and left work 15 minutes early-together
with King's comparable arrangement, would no longer
be possible. Young declared that departmental employees
would no longer be permitted to bank compensatory
leave time and carry it from pay period to pay period;
rather, their "comp" time would have to be used within
the pay period during which it had accrued. Finally, the
chief physical therapist reported that her subordinates
would be required to secure "approval" 3 weeks before-
hand should they desire to switch work schedules, or ex-
change days off with fellow employees.
The record warrants a determination, which I make,
that Kramer had, during his prior conference with
Young, further instructed her with regard to Respond-
ent's overtime pay responsibilities. The chief physical
therapist had been told, so Kramer credibly testified, that
employees should be given overtime premium pay when
they worked more than 8 hours per day, or more than 40
hours within a week. Upon this record, however, no fac-
tual conclusion would be warranted that Young repeated
Kramer's directives, particularly in this respect, when
she detailed Respondent's revised policies.
A further February 20 development should, however,
be noted. The Board's Regional Director, within a letter
signed, and presumably dispatched on the designated
date, notified Complainant and Respondent that Com-
plainant's pending representation petition, previously
noted, was being dismissed, since a proposed hospital
bargaining unit confined to registered physical therapists
would be considered "inappropriate" for collective-bar-
gaining purposes. The record, suggests that the Regional
Director's dismissal letter was probably received, by
both parties addressed, the following day. I so find.
4. Kam Young's comment
On February 21, shortly after their working day
began, Therapists Marilyn Smith and Lillian Chilgren
were summoned to Young's departmental office. There,
the chief physical therapist notified them, somewhat
apologetically, that the changes which she had an-
nounced the previous day had been decreed by Assistant
Administrator Kramer; that she was not responsible for
them; and that matters were out of her hands. Young
then commented, off the record, that the therapists
"ought to think about what [they] were getting into"
before getting involved with Complainant's campaign for
representative status, since the organization would never
be recognized by Respondent's management.
My factual conclusions, with respect to Young's
remark, rest on the composite, mutually corroborative
testimony proffered by Therapist Marilyn Washington
(nee Smith), and, likewise, proffered, regretfully, by
Chilgren. According to Young, she had been solicited to
state her "feelings" about Complainant herein; she
claimed she had then commented, off the record, that the
therapists had never consulted Kramer, before undertak-
ing self-organization, and that they would "never find
out now" whether he would have been well disposed
toward their efforts had they consulted him first. Consid-
ered in totality, the record herein persuades me that
Washington and Chilgren merit credence. Their testimo-
nys' significance will be considered, subsequently, within
this Decision.
Following several further remarks, none of them
worthy of particular note herein, the conversation now
in question was, so find, concluded.
5. Baltazar's warning notice
a. Young's June 26 staff conference
So far as the record shows, Complainant's campaign
for recognition-within a bargaining unit confined to Re-
spondent's physical therapists-came to a dead halt fol-
lowing the Regional Office's February 20 dismissal of
the designated labor organization's representation peti-
tion. No appeal from that dismissal decision was pursued.
As previously noted. Complainant's informational pickets
had shortly before been withdrawn. No further contacts
331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between Complainant's executive secretary-treasurer and
Respondent's administrators have been herein reported.
However, Therapist Baltazar, who had previously
been designated a member of Complainant's executive
board, continued to serve in that capacity. The organiza-
tion I find had not become moribund.
Late in June 1980, Baltazar's performance record-
with reference to her professional responsibilities-pre-
sumably became a matter of concern to Chief Physical
Therapist Young particularly.
The General Counsel's representative herein has prof-
fered record testimony which, taken at face value, would
suggest that Therapists Baltazar and Sandra Wilson,
while working together on Tuesday, June 24, in connec-
tion with a particular patient's treatment program, had
developed a professional difference of opinion with
regard to preferred treatment techniques. They had, vol-
untarily, suspended their collaborative efforts. Baltazar
had, subsequently, discussed the matter with both Urban
and Young; the chief physical therapist had, so Baltazar
testified, declared that she "understood" the situation.
Late on Wednesday, June 25, nevertheless, Young had
sought a conversation privately with Wilson. She had
declared her "concern" that Baltazar was not carrying
her share of the workload, and had requested Wilson to
advise her whether Baltazar was working slowly. Wilson
had denied such a purported problem existed. When
Young pressed her queries, Wilson had, so she testified,
recapitulated her previous day's discussion with Baltazar
regarding patient treatment techniques; she had, howev-
er, delared that their discussion had been conducted
"very civilly" generating no problems. Young had, so
Wilson recalled, repeatedly questioned her, nevertheless,
with respect to whether, within her view, Baltazar was
hard to get along with, or whether she would not take
advice. Wilson had, however, maintained steadfastly that
her "difference of opinion" with Baltazar had reflected a
situation common within their professional group, and
had not generated frictions.
On Thursday morning, June 26, during a regularly
scheduled departmental staff meeting, Young's purported
concerns, with respect to Baltazar's work, were clearly
manifested. The chief physical therapist had opened the
meeting with several comments about the department's
reduced patient load, followed by a question, with re-
spect to whether certain "problems," which department-
al therapists had purportedly encountered while perform-
ing services on the hospital's patient floors, had been re-
solved. Baltazar had responded; she had reported that
she had not had time to discuss matters with the nurses
concerned, but had, spoken with them by telephone.
Young then commented generally while eyeing each
staff therapist successively-that, when staff members
wanted to take early lunches, or leave work early, for
personal reasons, she had observed that they could
"finish" their assignments, but that sometimes their as-
signments had not been completed. Baltazar, so her testi-
mony shows, had considered Young's comment a person-
al reference; she had responded defensively. The thera-
pist reminded Young that she had requested permission
to leave work 15 minutes early on Monday, June 23, be-
cause her infant son had been ill, and because her early
departure to "pick him up" for a doctor's visit had,
therefore, been necessary.
With matters in this posture, I find, Respondent's chief
physical therapist had focused her further comments on
Baltazar's record; she had questioned Baltazar's Tuesday,
June 24, quantitative performance record, questioned her
charges for treatments given a particular patient, and de-
clared that she had been monitoring Baltazar's work.
Young's manner-so several witnesses credibly testi-
fied-had been argumentative; her tone of voice had
been abrasive; and she had manifested anger, within one
therapist's view.
Therapist King testified without contradiction that
Young had never behaved in such a fashion toward a
therapist, during a staff conference. While a witness,
Young conceded that she had never, previously, criti-
cized or disciplined an employee during a staff meeting.
Baltazar had defended her performance. When Young
commented that she always had some excuse, the thera-
pist became noticeably distressed. The record warrants a
determination which I make that she began shaking, and
looked to be on the verge of tears. Therapist Lillian
Chilgren, thereupon, asked Young whether she had some
particular reason for singling out Baltazar, since three
departmental therapists worked on Respondent's patient
floors. Young denied that she had been "picking" on Bal-
tazar; she declared, however, that she had been watching
Baltazar, who had not been handling the amount of work
she was supposed to handle. The chief physical therapist,
then, stated that Baltazar's work location would be
changed; she would be transferred from work on the
hospital's patient floors to work in their department's
downstairs treatment room, where, so Young declared,
her performance could be watched.
At this point Baltazar burst into tears; she stood up to
leave the room. The therapist was "half way out the
door" when Young directed her to wait, declaring that
the meeting had not been concluded and that she had not
yet finished.
While a witness, Baltazer claimed that she had not
"heard" her superior's command that she remain. Young,
however, described the therapist's exit in terms calculat-
ed to suggest that she had heard the command to remain,
but had chosen to disregard it. Their testimonial conflict,
with respect to Baltazar's departure, will be considered
subsequently within this Decision.
Baltazar, nevertheless, continued out the door. She
proceeded to a washroom, composed herself, and then
began "pulling" charts for the patients she would be re-
quired to treat in connection with her new assignment.
Within a few minutes, however, Young notified her that
her work "downstairs" would begin on Monday, thereaf-
ter.
b. Subsequent developments
Shortly following the June 26 staff conference, Young
telephoned Kramer's office; she left a message requesting
him to return her call. Baltazar telephoned Complain-
ant's executive secretary-treasurer, somewhat later,
during her lunch hour and, since he likewise was not in,
she left a message requesting his response.
332
SAINT LUKE'S HOSPITAL
In mid-afternoon, Bond returned Baltazar's call. She
was, however, working; the physical therapy depart-
ment's secretary notified her, merely, that Bond had tele-
phoned.
While a witness, Baltazar recalled that the department-
al secretary had further reported: First, that Young had
been within hearing distance when she (the secretary)
had received Bond's call; and second, that Young had
become angry when she learned the caller's name. Balta-
zar's testimony regarding the substance of the secretary's
double-barreled report, however, must be considered
hearsay and has been disregarded. Young did, neverthe-
less, concede, while a witness, that she had overheard
the departmental secretary's subsequent notification, di-
rected to Baltazar, regarding the department's receipt of
Bond's call.
That evening, June 26, Baltazar again telephoned
Bond. She reported that Young had been monitoring her
work, declared that she had not been cognizant of prob-
lems connected therewith, and reported further that
Young had changed her work location. Complainant's
executive secretary-treasurer requested Baltazar to tele-
phone him on Monday, June 30, should she find her
work assignment actually changed.
Respondent's defensive presentation-regarding
Young's subsequent contacts with Kramer particularly-
reflects their disparate recollections. Young testified that
Kramer had returned her Thursday, June 26, call shortly
after 5 o'clock that very day; that she had conferred
with him directly thereafter within his office; that she
had told him what had happened during her morning's
staff conference; and that she had asked him what she
should do. Young denied that she had mentioned her de-
partmental secretary's receipt of Bond's mid-afternoon
telephone call, through which he had tried to reach Bal-
tazar, when she reported her prior staff meeting contre-
temps to Respondent's assistant administrator.
Kramer recalled, however, that Young had telephoned
him around noon, on Friday, June 27, with a request for
a conference; that they had conferred later that after-
noon; and that Young had, then, reported what had hap-
pened during the previous day's staff meeting. Kramer's
reconstruction of relevant chronology comports with
logical probabilities; his recapitulation, within my view,
merits credence.
Kramer told Respondent's chief physical therapist that
Baltazar's conduct, within his view, constituted insubor-
dination and suggested that the therapist should be given
a written reprimand. More particularly, Kramer directed
Young to draft a reprimand, which could be typed on
Respondent's prepared "Employee Warning Notice"
form for delivery to Baltazar thereafter. Over the week-
end Young drafted a letter of reprimand, which she sub-
mitted for Kramer's review on Monday, June 30, some-
time before lunch. Respondent's assistant administrator,
so the record shows, revised Young's draft somewhat,
and returned it.
Young, so her uncontradicted testimony shows, then
prepared a fair copy of her letter's revised draft. Shortly
before lunch, so she recalled, she gave the copy to the
department's secretary for typing on Respondent's
"warning notice" form.
On the date now under consideration, Monday, June
30, Baltazar had started working in the physical therapy
department's treatment room. During her lunch hour,
she telephoned Bond's office; she left a message request-
ing him to return her call. At 4 o'clock that afternoon,
Bond responded. Since Baltazar was working, they con-
versed briefly. Bond asked whether her work assignment
had been changed; the therapist replied affirmatively.
Complainant's executive secretary-treasurer then said he
would telephone Young regarding the situation.
Within a short time thereafter, Bond telephoned Re-
spondent's chief physical therapist. His testimony with
respect to their conversation-which Young, while a
witness, did not controvert-warrants determinations,
which I make, that Bond said "this was wrong" with re-
spect to Baltazar's reassignment; that he declared Com-
plainant would feel constrained to file a further Board
charge-supplementing their first charge herein-with
respect thereto; and that Young replying had declared,
merely, that she could not discuss the matter.
While a witness, Young conceded that she had re-
ceived Bond's telephone call, and that she had reported
it to Assistant Administrator Kramer, presumably forth-
with.
c. The warning notice
Shortly thereafter, at approximately 4:50 p.m., Re-
spondent's departmental secretary notified Baltazar that
Young wished to see her. The therapist was given a
formal "Employee Warning Notice" wherein she was
charged with having left a June 26 departmental meet-
ing, and with having disregarded her supervisor's
instructions to remain. Baltazar was notified that her
conduct was considered insubordinate, and that any fur-
ther "misconduct on [her] part" would result in more se-
rious disciplinary action, including possible discharge.
On July 2, thereafter, Baltazar conferred with Dr.
Robert Sine, Respondent's director of physical medicine.
They discussed what had happened during the June 26
staff meeting and Chief Physical therapist Young's prior
complaints with regard to Baltazar's work. According to
Baltazar, whose testimony, in this respect, stands without
contradiction, Dr. Sine declared his view, during their
conversation, that Young might have "something person-
al" which she held against her subordinate. Baltazar,
however, denied that any "personal problems" had de-
veloped between them and she declared that they had
been good friends until Young's return from her materni-
ty leave.
C. Discussion and Conclusions
1. Interference, restraint, and coercion
a. The January 13 interrogation
Chronologically, Respondent's first transgression con-
ceivably subject to Board proscription-charged within
the General Counsel's second complaint herein-alleged-
ly took place during Assistant Chief Therapist Urban's
January 13, 1980, conversation with Baltazar, while both
were working Respondent's first Sunday schedule.
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within her brief, Respondent's counsel contends that
the General Counsel's complaint allegation, with respect
to Urban's purportedly "improper" questioning of Balta-
zar during their January 13 conversation, should be
denied Board cognizance or consideration, since no valid
"underlying" charge with respect thereto had been filed
and served within 6 months of the conversation chal-
lenged. Consistently with the Board's well-settled con-
struction of the statute's 6-month limitation provision,
however, Respondent's contention must be rejected.
True, the General Counsel's particular specification, with
respect to Respondent's challenged January 13 conduct,
can be found detailed solely within his July 24 com-
plaint; drafted, signed, and served more than 6 months
thereafter. That complaint, however, had been bottomed
on Complainant Union's previous July 2 charge (Case
20-CA-15460), which had, clearly, been timely filed.
And Respondent's contention that the General Counsel's
complaint allegation, with respect to the January 13 de-
velopments, should nevertheless be denied Board consid-
eration, because it deals with matters never specified, and
completely unrelated to those set forth, in haec verba,
within Case 20-CA-15460's underlying July 2 charge,
patently lacks merit. The charge in question, which con-
cededly dealt primarily with Respondent's determination
to present Baltazar with a warning letter, contained a
further statement that, by "the above and other acts,"
her employer had violated the statute. Such generalized
language within charges timely filed, though concededly
broadly phrased, has consistently been considered a suffi-
cient foundation for subsequent complaint specifications,
challenging statements or conduct within a 6-month
period prior to the charge's filing and service dates.
Herein, perhaps, the General Counsel might have been
better advised to set forth his specifications-with re-
spect to belatedly discovered January 13 developments,
within a supplementary "amendment" modifying his first
complaint in Case 21-CA-15137, since Complainant
Union's timely filed underlying charge, therein, had
clearly challenged comparable conduct purportedly at-
tributable to Respondent's management representatives.
Nevertheless, the General Counsel's decision to chal-
lenge Respondent's January 13 conduct within a second
complaint, rather than through a newly "amended" first
complaint, has neither flouted the statute's 6-month limi-
tation provision, nor denied Respondent due process.
Baltazar's testimony regarding Urban's January 13
comments would warrant determinations, which I have
heretofore made, that Respondent's acting chief therapist
had, inter alia, asked "why" their department's staff
therapists had opted for unionization, especially without
consulting with her first; thereafter, through statements
revelatory of her personal reactions-which did not, on
their face, pose questions-Urban, without conscious
planning so far as the record shows, sought or invited re-
sponses likely to reveal: First, why Respondent's thera-
pists desired union representation; second, whether their
decisions might have been prompted by some feeling that
she (Urban) had been a poor surrogate for Respondent's
chief therapist; and third, whether her belief-purported-
ly bottomed on Baltazar's and Therapist Chilgren's prior
statements-that they favored unionization was correct.
The General Counsel's contention, however, that
Urban's presumptive "interrogation" directed to Baltazar
cannot, reasonably, be considered "innocent or non-coer-
cive" merits rejection within my view.
Questions directed to employees concerning their
union membership and activities have not, heretofore,
been held, per se unlawful. See S. H. Kress & Company v.
N.L.R.B., 317 F.2d 225 (9th Cir. 1963); Burlington
Homes, Inc., 246 NLRB 1029 (1979). The Board has
rather consistently held, with judicial concurrence, that
such interrogation may be found violative of the statute,
but only whenever determinations can reasonably be
considered warranted that, with due regard for all the cir-
cumstances presented, such questioning possesses a tend-
ency to interfere with, restrain, and coerce employees
with respect to their exercise of self-organizational
rights. Mission Clay Products Corporation, 206 NLRB 280,
282-283 (1973), and cases therein cited; cf. Salinas Valley
Broadcasting Corporation and/or Central California Com-
munication Corporation, d/b/a KSBW-TV v. N.L.R.B.,
334 F.2d 604 (9th Cir. 1964). See further N.L.R.B. v. W.
Carter Maxwell, d/b/a Pioneer Concrete Company, 637
F.2d 698 (9th Cir. 1981), citing Penasquitos Village, Inc.,
et al. v. N.L.R.B., 565 F.2d 1074, 1080 (9th Cir. 1977).
When a record, therefore, reveals merely "isolated,
casual" conversations, compassing nothing more than
several "innocuous" statements, possibly coupled with
queries deemed "too inconsequential in their impact" to
carry a coercive thrust, violations of the statute have not
been found. Mission Clay Products Corp., supra, citing
Johnnie's Poultry Co. and John Bishop Poultry Co., Succes-
sor, 146 NLRB 770, 775 (1964); Blue Flash Express, Inc.,
109 NLRB 591, 597 (1954); compare Groendyke Trans-
port, Inc. v. N.L.R.B., 530 F.2d 137 (10th Cir. 1967), and
N.L.R.B. v. Armour & Company, 213 F.2d 625, 628 (5th
Cir. 1954), in this connection. With respect to Urban's
purported "interrogation" herein considered, no determi-
nation that permissible limits had been transgressed
would, within my view, be warranted.
I note, first, that Respondent maintains a healthy bar-
gaining relationship with several labor organizations cov-
ering a wide range of hospital occupations; contrary to
the General Counsel's contention, no manifestations of
pervasive "anti-union animus" have been detailed within
the present record. Further, I note that Respondent's re-
fusal to consider Complainant's recognitional demand,
with respect to a purported "bargaining unit" confined
to physical therapists, had already been formally con-
veyed.
Clearly, Complainant's demand for recognition-
within a circumscribed departmental unit confined to
particular professionals-had, legally, been permissible;
Respondent could have granted Complainant's recognition
within such a professional group, consistently with
Bond's limited demand, had it chosen voluntarily to do
so. Nevertheless, Respondent's considered refusal to rec-
ognize and bargain with Complainant, because the hospi-
tal's management considered a departmental bargaining
unit confined to physical therapist professionals "improp-
er" for collective-bargaining purposes, had clearly been
privileged. Though Respondent-when it challenged the
334
SAINT LUKE'S HOSPITAL
appropriateness of complainant's defined unit, consistently
with its construction of the statute and this Board's previous-
ly declared policies-chose that course, presumably, with
knowledge that such a challenge, conceivably, might
subsequently be considered erroneous, its refusal to grant
recognition certainly flouted no statutory mandate.
Under such circumstances, Urban's conceivable "inter-
rogation" directed to Baltazar carried no coercive thrust
within my view; as Respondent's counsel notes cogently
she sought no information which the hospital's manage-
ment could conceivably utilize to prospectively promote,
support, or protect its previously declared position.
Within her brief, Respondent's counsel suggests, further,
that Urban's questions had been "almost" rhetorical; that
they had been calculated to convey her disappointment
and personal "hurt" rather than solicit privileged infor-
mation which might subsequently be marshaled to Com-
plainant's prejudice. With due regard for the circum-
stances surrounding this challenged January 13 conversa-
tion, I concur.
b. Respondent's February contacts with physical
therapy aide Smith
As previously noted, Respondent's management repre-
sentatives-shortly after January 24 specifically-had
been served with a strike notice, pursuant to Section 8(g)
of the statute, whereby they were advised that their pro-
fessional physical therapists were planning a February 6
work stoppage. With matters in this posture, Assistant
Chief Physical Therapist Urban queried Dennis Smith,
specifically on February 5, regarding his willingness to
work on February 6 and 7, which would normally have
been his scheduled free days. When Smith declared that
he would not cross a possible picket line should Re-
spondent's physical therapists strike, he was asked
whether any therapists had "pressured" him into making
that decision.
Within his brief, the General Counsel's representative
raises no challenge limited to Urban's simple query re-
garding Smith's willingness to provide "overtime" serv-
ices during a possible departmental work stoppage; he
contends, rather, that:
By asking if the physical therapists pressured him to
decide not to cross the picket line, Urban forced
Smith not only to reveal his own views regarding
the Union but also required him to reveal to his em-
ployer the union activities of his fellow employees.
Questions reasonably calculated to produce such revela-
tions, the General Counsel contends, plainly coerced
Smith with respect to his personal exercise of guaranteed
Section 7 rights, and should, therefore, be considered sta-
tutorily proscribed. I have not been persuaded.
Questions regarding a particular employee's continued
willingness to work-should a strike develop involving
his fellow workers-have not, theretofore, been consid-
ered, per se, proscribed; the Board has held that their
possibly coercive thrust must be judged with due regard
for all the relevant circumstances. Mosher Steel Company,
220 NLRB 336 (1975). Thus, where records have shown
that, when such questions were asked, the concerned em-
ployer had some reasonable basis to fear a possibly immi-
nent strike, and merely sought to ascertain what his
chances were for keeping his business open, his inquir-
ies-when pressed simply, without accompanying
threats, promises, or other coercive conduct-have been
considered lawful. Mosher Steel Company. supra, fns. 3
and 6; citing Industrial Towel & Uniform Service Compa-
ny. 172 NLRB 2254, 2259 (1968); compare Continental
Manor Nursing Home, 233 NLRB 665, 675-676 (1979).
Clearly, herein, Respondent's receipt of Complainant's
strike notice-dispatched pursuant to Section 8(g) of the
statute-had provided a reasonable basis for the hospital
management's belief that a strike was imminent. Conti-
nental Manor Nursing Home. supra; contrast W. A.
Shaeffer Pen Company, Division of Textron, Inc., 199
NLRB 242, 243 (1972). The notice's receipt, therefore,
warranted "extending the umbrella of permissible in-
quiry" sufficiently to render Urban's query, with respect
to whether Smith would be willing to work during a
prospective work stoppage, permissible.
This Board has held, however, that a concerned em-
ployer's inquiries-with respect to matters of union con-
cern-must be pursued, even when permissible, with due
regard for well-established safeguards reasonably calcu-
lated to minimize their inherently coercive character. See
Johnnies Poultry Co. and John Bishop Poultry Co., Succes-
sor, 146 NLRB 770, 775 (1964); therein, the Board laid
down certain requirements, among others, that:
[T]he questions must not exceed the necessities of
the legitimate purpose by prying into other union
matters, eliciting information concerning an employ-
ee's subjective state of mind, or otherwise interfer-
ing with the statutory rights of employees.
When a concerned employer transgresses these defined
boundaries, his queries cannot be considered privileged.
The boundaries noted-established to lessen the patently
"inherent" coercive thrust of permissible interrogation-
have been held applicable with respect to queries regard-
ing the possible strike "intentions" subjectively main-
tained by health care workers. See Continental Manor
Nursing Home, supra, in this connection.
Herein, the General Counsel contends, essentially, that
Urban's final question-with respect to whether Smith
had been "pressured" by Respondent's staff therapists
concerning his decision to respect their prospective
picket line-transgressed permissible limits. That ques-
tion, however, had been prompted, so I have found, by
DaMasco's prior report relative to Therapist Wilson's
purportedly "improper" solicitations of support for com-
plainant's prospective strike, conducted on working time.
Queries, such as Urban's herein challenged, which reflect
nothing more than a presumptive attempt to obtain infor-
mation regarding union-related activities which the stat-
ute would not protect, warrant no Board interdiction.
With respect to Assistant Administrator Kramer's sub-
sequent February 5 comments, however, contrary con-
clusions within my view would be fully warranted.
The hospital administrator's bifurcated talks with phys-
ical therapy aide Smith, considered in totality, clearly re-
flect some restrained, generally friendly conversational
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exchanges, calculated, certainly so far as Kramer was
concerned, primarily to persuade Smith that Respond-
ent's management had good reasons for refusing to rec-
ognize Complainant, voluntarily, as the collective-bar-
gaining representative for a bargaining "unit" limited to
five physical therapist, solely. Further, Kramer sought to
convince Respondent's aide that Complainant's support-
ers were not following proper "procedure" when they
mounted a purported "informational" picket line, distrib-
uted leaflets, and projected a work stoppage in pursuit of
their recognitional demand. Within her brief, Respond-
ent's counsel, focusing upon these facets of Kramer's
conversational presentation, contends that Respondent's
assistant administrator was simply expressing "views"
which, consistently with Section 8(c) of the statute,
should, herein, be considered privileged. Those views
were presented, by Kramer, for Smith's consideration, so
counsel suggests, merely to dissuade him, through some
noncoercive discussion, from his declared determination
to respect Complainant's prospective picket line.
The record, however, reveals that Kramer's remarks,
considered in totality, compassed more than simple per-
suasion. In pursuit of his purpose, so I have found, Re-
spondent's assistant administrator queried Smith, inter
alia, with regard to how he "felt" about the physical
therapists' demand for Complainant's recognition, with
respect to whether he "thought" that Respondent's phys-
ical therapists had followed correct legal procedures, and
with respect to whether he thought health care workers
could "ethically" leave patient care "hanging" while
they struck. When Smith commented that he considered
employee concerns and patient care needs equally impor-
tant, Kramer declared, nonresponsively, that people who
thought employee concerns came before patient care
should not work in Respondent's hospital. Within this
context, I find, Respondent's assistant administrator, then,
queried Smith for the first time with respect to whether
he would work "overtime" should the therapists com-
mence their next day's projected work stoppage. And,
when Respondent's aide-following his telephone con-
sultation with Local 250's business representative-reiter-
ated his determination to respect a therapists' picket line,
should one be established, Respondent's assistant admin-
istrator clearly raised the pitch of his purported persua-
sive appeal. Smith was asked, point blank, whether he
"understood" that Respondent could require him to work
overtime, during emergency situations; further, Kramer
declared Respondent's view that it would not be "ethi-
cal" to leave patient care "hanging" should such a situa-
tion develop. Confronted then with Smith's persistence
that he could not cross a prospective picket line, Re-
spondent's assistant administrator commented strongly
that the physical therapy aide "didn't care" about pa-
tients; he declared that he could not "understand" how
Smith could, under such circumstances, consider himself
a responsible health care worker. And, finally, he noti-
fied Respondent's aide that he would "have to take re-
sponsibility" for whatever he might decide to do.
In short, Kramer did more than question Smith, legiti-
mately, with regard to whether he would be willing to
work despite a prospective picket line's presence. During
some significantly extended discussion, Respondent's aide
was queried, closely, with regard to his subjective state
of mind, concerning the situation with which Respond-
ent was confronted; further, he was pressed to declare
his views regarding the propriety of Complainant's
course of conduct. Such interrogation plainly went
beyond the necessities of Respondent's presumptively le-
gitimate purpose, previously noted herein, since Re-
spondent's assistant administrator sought disclosures con-
cerning Smith's personal views with regard to matters of
employee concern which the statute purports to preserve
from employer intrusion. Johnnies Poultry Company,
supra. And, since Kramer's inquiries were conducted
without regard for various "safeguard" limitations calcu-
lated to minimize their coercive thrust, they necessarily
transgressed permissible limits. Continental Manor Nurs-
ing Home, supra. Further, the assistant administrator's
final, post-meridian comment that Smith would "have to
take responsibility" for his professed determination to re-
spect Complainant's prospective picket line-considered
in context with his several questions, and related comments,
during their earlier conversation-clearly conveyed a
threat, within my view, that Respondent's physical ther-
apy aide might face some sort of discipline, possibly dis-
charge, should he fail to report for work the next day.
So construed, Kramer's remark carried a coercive thrust,
statutorily proscribed.
c. The February 21 threats
Previously, within this Decision, Chief Physical Thera-
pist Young's purportedly "off-the-record" remarks to
Therapists Chilgren and Smith have been noted. The
General Counsel's representative contends that, by tell-
ing her subordinates "that Respondent would never rec-
ognize" their chosen representative, Young clearly cre-
ated, in their minds, the impression that their support of
Complainant's bid for representative status would be
futile. Further, the General Counsel's representative con-
tends that-when Chilgren and Smith were told they
"had better think about what they were doing" before
getting involved with Complainant herein-they were
impliedly threatened with reprisals should their superior's
suggestion not be heeded.
I have not been persuaded. Though I have found, de-
spite Young's contrary testimony, that her comments
were volunteered, no determination would be warranted,
within my view, that they were proffered within a per-
vasively "coercive" atmosphere. Nor could they, reason-
ably, be considered a statutorily proscribed "anticipatory
refusal to bargain" conventionally within the Board's
cognizance. Contrast Skrl Die Casting, Inc., 245 NLRB
1041 (1979); Nebraska Bulk Transport, Inc., 240 NLRB
135, 156-157 (1979); El Rancho Market, 235 NLRB 468,
472 (1978); El Monte Tool & Die Casting, Inc., 232 NLRB
186, 188 (1977); Brandenburg Telephone Company, 164
NLRB 825 (1967), in this connection.
Respondent had, previously, notified Complainant's
spokesman-directly following its receipt of his January
3 recognitional demand-that Complainant would not be
granted recognition, within a professionally circum-
scribed bargaining unit which the hospital's management
considered "inappropriate" for collective-bargaining pur-
336
SAINT LUKE'S HOSPITAL
poses. Chilgren and Smith, together with their profes-
sional colleagues, had, promptly thereafter, been advised
with respect to Respondent's position. Chilgren and her
colleagues, further, were "aware" that Complainant had,
nevertheless, filed a February 4 representation petition
with the Board's Regional Office, seeking certification
within a bargaining group limited to Respondent's regis-
tered physical therapists. By February 20, Chilgren
knew, so her testimony shows, that a letter notifying
Complainant with regard to the Regional Director's dis-
missal of the petition was "expected" though it had not
yet been received. With matters in this posture, Young's
declaration that Respondent would never grant Com-
plainant recognition-though broadly phrased, without
relevant contextual references which someone more so-
phisticated might conceivably have proffered-constitut-
ed nothing more than a capsulized recapitulation of Re-
spondent's position; one which it could legally proclaim,
which it had, indeed, previously proclaimed, and one
with respect to which Chilgren and Smith would have
been fully cognizant prior to their superior's conversa-
tional comment.
Essentially, Respondent's physical therapists were,
merely, being reminded that their hospital's management
could not be required to grant Complainant's circum-
scribed recognitional demand, and that management had
chosen to reject that demand, predicating its determina-
tion upon policy considerations presumably consistent
with this Board's construction of Congress' mandate, to
preclude the proliferation of fragmented craft or depart-
mental bargaining "units" within health care facilities.
Compare Burns International Security Services, Inc., 216
NLRB 11, 15 (1975). Within its context, Young's state-
ment cannot reasonably be considered statutorily pro-
scribed.
The chief physical therapist's further statement-that
her listeners, under the circumstances, would be well ad-
vised to "think" about what they were doing before be-
coming further involved with Complainant herein-cer-
tainly conveyed no express threat. Further, it contained
no implied threat of reprisal within my view. The state-
ment was proffered within a situational context which-
save for Kramer's February 5 remarks previously noted,
directed to Dennis Smith personally-reflected no perva-
sive campaign to subvert Complainant's supporters
through statements or conduct statutorily proscribed.
Though Young was a hospital department's head, she
held no "top level" supervisory position by virtue of
which her superficially innocuous comment might, argu-
ably, have been invested with some threatening connota-
tions. Further, her statements reflected no cautionary
suggestion "out of the blue" reasonably calculated to re-
strain or coerce her listeners. Contrast Staco, Inc., 244
NLRB 461 (1979). Considered in context, they represent-
ed nothing more than Young's proffered "view" or
"opinion" that-because of Respondent's declared refusal
to grant Complainant's recognitional demand-her de-
partment's physical therapists might be well advised to
reconsider their determination to support Complainant's
representation bid. I so find.
2. Charges with regard to claimed discrimination
a. Changes in working conditions
Previously, within this Decision, Chief Physical Thera-
pist Young's several February 20 announcements-that
certain working practices and conditions of work previ-
ously permitted, sanctioned, or maintained within her de-
partment would be changed-have been detailed.
The General Counsel's representative contends, herein,
that Respondent's various changes, considered in totality,
were decreed for some "unlawful" purpose; specifically,
he contends that more onerous and rigorous terms and
conditions of employment were thereby imposed with re-
spect to Respondent's physical therapists because they
had joined, supported, and promoted Complainant's bid
for representative status, and particularly in order to dis-
courage them from engaging in such activities, or other
concerted activity, for the purpose of collective bargain-
ing, or other mutual aid or protection. Such determina-
tions, with respect to Respondent's motivation-so the
General Counsel suggests-should be considered war-
ranted: First, because the changes were decreed and ef-
fectuated "in the midst" of Complainant's organizing
drive; second, because they were promulgated within a
situational context "replete" with union animus; third, be-
cause Respondent's claim that the changes had been
proximately prompted by a particular therapist's pre-
sumptive "abuse" with respect to practices previously
tolerated merits no credence; and fourth, because Re-
spondent's further claim that the changes were decreed
to comply with certain State of California statutory pro-
visions and regulations consistent therewith will not
withstand scrutiny.
These contentions, within my view, lack record sup-
port. Certainly, no determination could be considered
warranted herein that Assistant Administrator Kramer's
directives-with respect to changes affecting the physi-
cal therapy department's work schedule practices-re-
flected a deliberately "timed" reaction, prompted by
Complainant's currently maintained "organizing" drive.
Concededly, Respondent's physical therapists, five in
number, had been pressing for Complainant's recognition
as their collective-bargaining representative. By Febru-
ary 20, however, their campaign had seemingly lost con-
siderable momentum. They had, concertedly, manifested
their conjoint determination to win recognition for their
designated representative some 7 weeks previously. Since
their January 3 recognitional demand, no signals had
been vouchsafed that further "organizational" goals were
currently within their contemplation. Their representa-
tion petition, seeking Complainant's certification as their
representative, had been filed 18 days previously; by
February 20, so the record shows, they had been pro-
vided with some reason to believe that Board action,
with respect to their petition, could not be expected,
since their proposed bargaining "unit" would be consid-
ered too narrowly defined. Their concurrent campaign
to win voluntary recognition from Respondent, through
informational picketing and leaflet distribution, had been
suspended. With matters in this posture, the General
Counsel's suggestion that Respondent's projected Febru-
337
DECISIONS OF NATIONAL LABOR RELATIONS O()ARD
ary 20 "changes" reflected a purpose of reprisal, calcu-
lated to stifle or forestall some currently viable organiza-
tional drive, carries no persuasion.
Furthermore, the General Counsel's presentation, prof-
fered to suggest statutorily proscribed "animus" charge-
able to Respondent's management, does not, within my
view, rise to a level exhibiting a proclivity on Respond-
ent's part to combat organization through reprisal. Since
the hospital management's receipt of Complainant's Janu-
ary 3 recognitional demand, Respondent's formal reac-
tions had been confined to communications from counsel,
declaring its legal position, coupled with two Board
charges, not previously mentioned herein, wherein Com-
plainant's proposed resort to self-help measures had been
legally challenged. The General Counsel's only testimo-
nial proffers, with respect to some presumptively suspect
communication between Respondent's supervision and
rank-and-file personnel, dealt with Kramer's effort to
persuade Physical Therapist Aide Smith that he should
provide requested services, should a prospective thera-
pist's work stoppage materialize. Though I have found
that, during their conversation, certain Section 7 rights
were violated, Kramer's indiscretions may fairly be de-
scribed as isolated. Within their situational context, they
could hardly be considered sufficiently grievous to sug-
gest a degree of pervasive union "animus" which would
support determinations that Kramer's subsequent Febru-
ary 20 directives were discriminatorily motivated.
The General Counsel's further suggestion that
Kramer's directives should be considered suspect because
such "massive" changes in departmental work rules and
practices could hardly have been reasonably motivated
by therapist King's purported "abuse" with respect to
compensatory time privileges, reflects a misconstruction
of the record. Respondent makes no such contention.
Young's testimony reveals merely that her February 20
conference with Kramer had been prompted by King's
refusal to reduce her previously accumulated level of
compensatory "leave" credits. Kramer's reaction, how-
ever, had clearly followed Young'sfurther revelations re-
garding her department's patently lax working rules and
schedule practices. Young's report, with respect to thera-
pist King's reluctance to comply with her "comp time"
request, had merely triggered Kramer's queries; no deter-
mination that King's conduct, solely, had motivated his
subsequent reaction would be warranted.
Upon this record, determinations would seem, within
my view, clearly warranted-despite the General Coun-
sel's contrary suggestion within his brief-that Kramer's
several February 20 directives were reasonably calculat-
ed to promote hospital management's legitimate objec-
tives; they dealt, clearly, with departmental practices and
procedures which-consistently with legal requirements
and principles of sound managerial governance-war-
ranted modification. In substantial part, Kramer's man-
dates were calculated to require the physical therapy de-
partment's compliance with particular State of California
Commission regulations, statutorily validated.
The General Counsel's representative suggests that Re-
spondent's presently proclaimed reliance on state labor
code requirements, and regulations promulgated pursuant
thereto, purportedly for justification, should be discount-
ed, since Kramer did not, inter alia, require Respondent's
physical therapists to take mid-morning and mid-aflernoon
rest periods, but permitted them to continue a prior prac-
tice whereby their two 15-minute rest period allowances
were directly linked to their respective lunch periods. I
note, however, that the relevant regulation-Industrial
Welfare Commission Order No. 5-80, section 12, specifi-
cally-merely requires that rest periods "insofar as prac-
ticable" shall be taken during the.middle of two separat-
ed work periods. In this connection, further, Respond-
ent's counsel notes cogently that Kramer was clearly
concerned, not that some improper lengthening of previ-
ously scheduled half-hour lunchbreaks had been permit-
ted, but that some therapists had been permitted to
forego such lengthened lunch periods, purportedly for
personal reasons, and to subtract the temporal equivalent
of two "authorized" rest periods from their overall
working days. This modification of their scheduled
working hours signified, essentially, that certain designat-
ed therapists were not taking state-mandated rest periods
within work periods compassing 4 hours or some major
portion thereof, and that California's I.W.C. Order 5-80
might-thereby-conceivably be considered violated.
Kramer's directive, in this connection, may properly be
considered, therefore, facially permissible under the rele-
vant regulation, and reasonably calculated to promote
compliance therewith.
Without belaboring the point, through some detailed
review of Respondent's newly imposed February 20 re-
quirements, I find the record herein, considered in totality,
sufficient to warrant a determination that Kramer's var-
ious directives derived from legitimate managerial con-
siderations, since they were reasonably calculated to pro-
mote compliance with state legal requirements to contain
Respondent's costs by reducing departmental overtime
hours worked and to guarantee management's control re-
garding the circumstances under which presumptively
necessary overtime services could, or would, subsequent-
ly be provided.
We have a case, therefore, wherein the conceivable
tendency of Respondent's newly imposed working condi-
tions to prejudice employee rights, or discourage union
membership, may, reasonably, be considered compara-
tively slight, and wherein hospital management's direc-
tives were reasonably calculated to promote legitimate
management objectives or to deal with perceived busi-
ness exigencies. With matters in that posture, Respond-
ent's purportedly proscribed subjective motivation, for
those directives, must be established by persuasive evi-
dence "independent of the mere conduct" with which
we have been concerned. Cf. V.L.R.B. v. Brown et al.,
d/b/a Brown Food Store, 380 U.S. 278, 287-288 (1965), in
this connection. Herein, the General Counsel's repre-
sentative, within my view, has not provided direct, pro-
bative evidence of Kramer's theoretically conceivable
antiunion motivation, sufficient to convert his facially
"ordinary business act" into an unfair labor practice.
b. Baltazars warning notice
Upon this record, there can be no doubt that Therapist
Baltazar was the prime mover when Respondent's physi-
338
SAINT LUKE'S HOSI'ITAL
cal therapists were considering unionization; clearly, she
functioned as Complainant's principal protagonist
throughout that organization's campaign for recognition
as their collective-bargaining representative. Baltazar
became a member of Complainant's executive board in
January 1980; when this case was heard, she still held
that position.
Further, the record herein will, clearly, warrant a de-
termination that Re.pondent's management representa-
tives were fully cognizant of Baltazar's leadership role,
with respect to Complainant's campaign for representa-
tive status.
The reported conversations between Baltazar and As-
sistant Chief Physical Therapist Urban, previously noted
herein, would certainly warrant such a determination,
particularly with respect to Urban's knowledge. Like-
wise, the record-which reveals that Complainant's
handbills distributed on February 3 near Grace Cathe-
dral, and subsequently distributed in front of Respond-
ent's hospital and clinic facility between February 4 and
19, designated Baltazar as the chairperson of Complain-
ant's committee-will, within my view, warrant a per-
missible "inference" that Respondent's higher manage-
ment representatives were likewise knowledgeable on
that score.
Nothing within the present record, however, will sup-
port a determination, within my view, that Respondent's
proclaimed decision to reject Complainant's recogni-
tional demands derived from some "hostility" which had
become focused on Complainant's supporters personally,
sufficiently to constitute them prime candidates for statu-
torily proscribed discriminatory treatment.
The General Counsel's representative suggests, within
his brief, that, since Young and Baltazar had, conceded-
ly, been "good friends" prior to Young's January 1980
return from maternity leave, their relationship's deterio-
ration following the chief physical therapist's return,
which she (Young) substantially conceded, could only
have derived from her presumptively "hostile" reaction
when confronted with Baltazar's supervenient commit-
ment to Complainant's support. Upon this record, how-
ever, the General Counsel's suggestion must be consid-
ered purely speculative; other possible causes for
Young's critical behavior, so far as Baltazar was con-
cerned, have not been, persuasively, ruled out herein.
True, Young may have suggestively "solicited" critical
comments with respect to Baltazar's work performance,
from her fellow therapists. Further, the chief physical
therapist's manifest readiness to transform a regular staff
meeting, presumptively called to discuss noncontrover-
sial departmental matters of general concern, into some
sort of confrontation likely to discomfit or disconcert
those present, namely, a critical review of Baltazar's per-
sonal behavior and work record, conducted in loud
"angry" tones, might well be considered revelatory of
some personal "animus" presumptively beyond a supervi-
sor's normal concern regarding a subordinate's proper
professional performance. King's testimony-that this
was the first time, within her knowledge, that Young had
ever criticized a therapist's performance during a staff
meeting-stands, herein, without contradiction.
Nothing within the present record, however, would
warrant a definitive determination, within my view, that
Young's animadversions-with respect to Baltazar's
work-had been prompted. specifically, by union consid-
erations.
It should be noted, in this connection, that-long
before the June 26 staff meeting wherein Young's con-
frontation with Baltazar developed-the Complainant's
campaign for recognition had become, to all intents and
purposes, moribund. The group's informational pickets
had been withdrawn; leaflet distributions had been sus-
pended; and Complainant's representation petition had
been dismissed. Respondent's management representa-
tives had been vouchsafed no sign that Complainant
might, subsequently, demand recognition with respect to
some group of hospital professionals more broadly de-
fined. With matters in this posture, factual determinations
that Baltazar's participation in Complainant's prior cam-
paign had been "causally" related to Young's critical
June 26 conduct, or that such prior participation on Bal-
tazar's part had "motivated" Young's presumptive deter-
mination to question her subordinate's performance
record, would necessarily derive from surmise.
The General Counsel's representative contends, how-
ever, that Respondent's subsequent determination to
charge Baltazar with "insubordination" because of her
tearful, agitated flight from Young's critical comments
derived, impermissibly, from statutorily proscribed con-
siderations. Specifically, he would have the Board note:
First, that Young had presumably become cognizant of
Baltazar's June 26 post confrontation telephone call to
Complainant's executive secretary-treasurer-since she
had heard her department's secretary report Bond's
effort to return the therapist's lunch hour call-before
she discussed Baltazar's behavior with Assistant Adminis-
trator Kramer; and second, that Baltazar was not given
her "warning notice" until sometime after Bond had fi-
nally telephoned Young to complain about her directive
with respect to Baltazar's work assignment. With due
regard for these purely temporal considerations the Gen-
eral Counsel's representative within his brief submits
that, since Kramer had directed Young to draft Balta-
zar's reprimand subsequent to the chief physical thera-
pist's presumptive report relative to her subordinate's
demonstrated desire to consult with Bond regarding her
situation, and since Young had delivered Respondent's
formal "warning notice" following Bond's June 30 tele-
phone call with regard to Baltazar's changed work as-
signment, the Board should consider her continued union
connection a significant "motivating factor" for the rep-
rimand that she was given.
Within my view, the General Counsel's suggestion car-
ries no persuasion. The fact that Respondent's reprimand
may have been drafted following Young's possible report
to Kramer regarding Baltazar's June 26 effort to commu-
nicate with Bond, and may have been delivered following
Bond's warning that Baltazar's reassignment might evoke
further Board charges, beyond those previously filed
herein, compels no conclusion that Respondent's deter-
mination to reprimand Baltazar derived therefrom, or
had been "concocted" in response thereto. The maxim,
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Post hoc, ergo proctor hoc" has generally been considered
a fallible guide; temporal sequences, alone, cannot pro-
vide reliable, substantial, or probative bases for conclu-
sions with respect to causal relationships. Herein,
Kramer's proclaimed judgment that Baltazar deserved
censure for presumptive "insubordination" had clearly
been based on Young's personal, presumably "slanted"
report with respect to her subordinate's behavior; his
June 27 directive that Baltazar should be given a written
reprimand, despite his conceded failure to solicit or con-
sider her version of the situation-when considered dis-
passionately-may have been hasty; his determination,
then, that Baltazar deserved censure, though she had
clearly been distraught and her conduct may, arguably,
have reflected her personal agitation rather than con-
scious or deliberate defiance, may well have reflected
some overreaction. Nevertheless, no determination that
the therapist's union contacts had motivated hospital man-
agement's decision to reprimand her would, within my
view, be warranted. Upon this record, the General
Counsel has failed to demonstrate, persuasively, that Bal-
tazar's presumed contact with Bond, and Bond's contact
with Young, were "motivating factors" prompting Re-
spondent's decision regarding her discipline. Having
reached this conclusion, I find that the General Counsel's
required predicate for a further determination-that Re-
spondent's decision with respect to Baltazar's reprimand
would not have been reached, absent hospital manage-
ment's knowledge regarding her union contacts-has not
been established. Compare Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980). Baltazar's
warning notice, though it may not have been, objective-
ly, deserved, cannot reasonably be considered to have
been prompted by statutorily forbidden considerations.
IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES
UPON COMMERCE
Respondent's course of conduct set forth in section III,
above, occurring in connection with Respondent's hospi-
tal operations referred to in section I, above, have, and
continues to have, a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the sev-
eral States. Absent corrections, such conduct would tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCI USIONS OF LAW
In view of these findings of fact and upon the entire
record in this case, I make the following conclusions of
law:
1. Respondent Saint Luke's Hospital is an employer
within the meaning of Section 2(2) of the Act, and a
health care institution within the meaning of Section
2(14) of the Act, engaged in commerce and business ac-
tivities which affect commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Physical Therapists, also known as Califor-
nia Federation of the United Physical Therapists, is a
labor organization within the meaning of Section 2(5) of
the Act, as amended, which admits certain of Respond-
ent's employees to membership.
3. By questioning employees with respect to whether
they would be willing to cross a possible picket line and
perform services during a prospective strike called by a
labor organization claiming to represent certain of their
fellow employees, without observing conventionally re-
quired safeguards reasonably calculated to minimize the
restraint or coercion necessarily generated by such ques-
tioning, Respondent has interfered with, restrained, and
coerced its employees. Thereby, Respondent has com-
mitted an unfair labor practice affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
4. By threatening implicitly that employees unwilling
to cross a picket line and provide services during a pros-
pective strike would be subject to possible discipline, not
excluding discharge, Respondent has, further, interfered
with, restrained, and coerced its employees. Thereby,
Respondent has likewise committed an unfair labor prac-
tice affecting commerce within the meaning of Section
8(a)(l) and Section 2(6) and (7) of the Act.
5. The General Counsel has failed to establish, by a
preponderance of the reliable, probative evidence pro-
duced herein, that Respondent has, otherwise, committed
cognizable unfair labor practices within the meaning of
the statute.
REMEDY
Since I have found that Respondent Saint Luke's Hos-
pital has committed, and has thus far failed to remedy,
certain specific unfair labor practices which affect com-
merce, I shall recommend that it be ordered to cease and
desist therefrom, and to take certain affirmative action,
including the posting of appropriate notice, designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]
' Pursuant to the General Counsel's motion, certain corrections of the
official transcript have heretofore been ordered.
340