Saint Luke's HospitalDownload PDFNational Labor Relations Board - Board DecisionsSep 28, 1981258 N.L.R.B. 321 (N.L.R.B. 1981) Copy Citation 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 Copy with citationCopy as parenthetical citation