San Clemente General Hospital

National Labor Relations Board - Board Decisions

Jun 4, 1976

224 N.L.R.B. 378 (N.L.R.B. 1976)

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Clemente General Hospital and United Nurses Issue
Association of California Case 21-CA-13756
June 4, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On February 11, 1976, Administrative Law Judge
Bernard J Seff issued the attached Decision in this
proceeding Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in reply to Respondent's exceptions
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, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, San Clemente General
Hospital, San Clemente, California, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order
The gravamen of the complaint is that the above-men-
tioned notice "threatened the nurses with reprisal if they
testified at a National Labor Relations Board hearing con-
trary to Respondent's interest or gave testimony in the
form of an affidavit to agents of the National Labor Rela-
tions Board contrary to Respondent's interests "
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent
Upon the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent operates a general acute care hospital locat-
ed at 654 Camino De Los Mares, San Clemente, Califor-
ma During the year immediately preceding issuance of
complaint, Respondent, in the course of its business opera-
tions, performed services valued in excess of $250,000 and
purchased and received goods and supplies valued in ex-
cess of $6,000 directly from suppliers located outside the
State of California The complaint alleges, the parties sti-
pulated, and I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act
' In affirming the Administrative Law Judge's finding that Respondent
violated Sec 8(a)(1) of the Act by posting a coercive notice, we do not rely
on evidence concerning the subjective reaction of several employees to the
notice
DECISION
STATEMENT OF THE CASE
BERNARD J SEFF, Administrative Law Judge This case
was tried at Oceanside, California, on November 25, 1975
The charge and four amended charges were filed on June
24, June 25, July 10, and September 15, 1975,' by United
Nurses Association of California The complaint, which is-
sued on September 16, alleges that San Clemente General
Hospital, herein the Respondent or the Hospital, posted a
notice to all registered nurses which the General Counsel
alleges violated Section 8(a)(1) and which contained coer-
cive and threatening language
i All events took place in 1975 unless otherwise indicated
III THE ALLEGED UNFAIR LABOR PRACTICES
It is undisputed that on June 13 there was posted on the
hospital bulletin board the following notice
TO ALL REGISTERED NURSE EMPLOYEES
FROM JAMES D EVERETT, ADMINISTRATOR
Very serious charges have been filed by the Union
who is supposedly representing a number of employ-
ees in the above-mentioned classification against the
management of this hospital
As a result of this, the scheduled election has been
postponed
Administration denies all charges as allegated and a
countersuit will be filed against those making such
allegations when such are fully described in court
At this time we realize it is a difficult time for all
employees We beg that you be patient during this
2 The unopposed motion of counsel for the General Counsel to correct
the transcript of the record is hereby granted
224 NLRB No 59
SAN CLEMENTE GENERAL HOSPITAL 379
difficult time I am quite certain that for most, all will
be for the best The prime concern at this time is care
of the patient
The General Counsel offered the above document in evi-
dence and said that he would not adduce any testimonial
evidence but would posit his case on the notice The major
thrust of Respondent's defense is that nowhere in the said
notice is there anything stated which threatened the nurses
with reprisals if they testified at an NLRB hearing contrary
to Respondent's interests, nor is anything stated about giv-
ing testimony in the form of an affidavit to agents of the
NLRB contrary to Respondent's interests
Particular attention is called by the General Counsel to
the paragraph in this notice that "administration denies all
charges as allegated and a countersuit will be filed against
those making such allegations when such are fully de-
scribed in court "
The Charging Party adduced testimony from two regis-
tered nurses, Louise Blasche and Susan Glasgow, who were
employed by Respondent at the time the events described
in the complaint occurred but later resigned from their em-
ployment
Both Blasche and Glasgow testified that they were afraid
to give testimony relating to the charge because they felt
that, if they did so, they would be sued in a civil action
brought against them by Respondent
Blasche testified as follows
I knew that charges were being brought and I knew
people involved and the letter frightened me I thought
that if-that it would be difficult for me to ever give
testimony because I thought a civil suit would be
brought against me
Glasgow testified as follows
I felt that the letter was very threatening to me I
was very fearful
Q What were you fearful of?
A I was afraid of losing myjob and I was afraid of
being sued and I was afraid that if I did lose my job it
would be difficult for me to find a position in one of
the hospitals in the area
Glasgow was interrogated by a Board agent and asked to
sign a statement relative to the charges that were filed
Q Did you give him the information
A No
Q Did you refuse to give its
A Yes
Q Did you state to him some reason why you re-
fused its
A I told him that I was afraid and I needed some
time to think things over
The above-described incident took place at a time when
Glasgow was still employed by the Hospital
As its defense Respondent elicited from Hospital Ad-
ministrator Everett the following information
Following the receipt of the prior document [the no-
tice of January 13] that you showed me, I became very
unhappy, very angry at the Union Therefore, I posted
this letter stating that in all probability when this was
over I would take civil action against the Union for
accusations made to me
Q What is it that you had in mind specifically, if
there was any one thing specific, when you used the
phrase countersuit in that document, General
Counsel's Exhibit 6'
A Well, I thought that accusations had been made
against me and against the hospital which were untrue
and I felt that if false accusations were proven untrue,
therefore, I had civil means of getting retribution
Q For example'?
A Apologies
Q Did you intend that the notice, that is General
Counsel's Exhibit 6, in any way referred to the nurses
themselves as opposed to the nurses or their attorney'?
A I did not direct that to the nurses
Q Can you tell me why you posted on the bulletin
board when you say you did not direct it to the nurses
You mean you did not direct the accusations to the
nurses
A The accusations yes
Q Why did you post on the notices bulletin board
Did you have a reason'?
A Yes, I had a reason As I say, I was very angry
when the accusations were made I wanted the nurses,
in entirety, those who read the bulletin board, to know
that such charges had been filed I wanted them to be
aware that the charges had been filed
Under cross-examination by the General Counsel, the fol-
lowing question was asked
The letter of June 13, in paragraph 3, in which you
state that the administration denies all charges as alle-
gated and a counter suit will be filed against those
making such allegations when such are fully described
in court that you were only referring to the Union
A Yes
Q And any phraseology or terminology of a
"counter suit" you were only looking for an apology'?
A Yes sir
It later developed in the testimony of Everett that he did
not send a copy of the letter of June 13 to the Union
Despite the fact that he claimed that the purpose of the
letter was to let the Union know that a countersuit might
possibly be filed against it, the notice was addressed to the
nurses and put on the bulletin board to all registered nurs-
es Under further cross-examination by the Charging
Party's counsel, Everett said that he did not write a letter to
the Union asking for an apology, nor did he write a letter
to the Charging Party's attorney asking for an apology
Under further questioning by the Charging Party's attor-
ney, he was asked why he didn't write directly to the
Union, and his answer was as follows "I cannot answer
why I did not write the Union or I did not write Joe Blow
or who it was "
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings and Analysis
The case turns on the distinction between threatening to
bring a countersuit which is intimidatory and actually
commencing legal action The Board and the courts have
said that a threat to file suit which has the effect of harass-
ing employees is violative of the Act The actual filing of a
lawsuit is not a violation of the Act
In the case at bar, two witnesses, whom I credit, gave
mutually corroborative testimony that they were frightened
by the possibility of being sued Respondent offered no
testimony from other employees similarly situated as
Blasche and Glasgow in refutation of the witnesses who
did testify Furthermore, Everett testified that he was "very
upset and very angry with the Union " It is significant that
Everett testified that his reason for threatening a lawsuit
was to secure an apology from the Union for certain of its
statements in preelection propaganda In this connection,
it is especially to be noted that his threat contained in the
notice was not addressed to the Union from whom he said
he expected an apology, but only to the registered nurses
I do not credit the testimony of Everett because he stat-
ed he wanted to secure an apology from the Union and
nevertheless he addressed his notice to the registered nurs-
es and admitted he sent no copy of the letter to the Union
or the Union's attorney This inconsistent testimony is at
variance with his explanation of the reason for posting the
notice
The fact that both Blasche and Glasgow refused to sign
affidavits when requested to do so by agents of the Board
while they were employed by the Respondent and their
ultimate willingness to testify for the Union which they did
only when they were no longer employees demonstrates the
fact that they feared reprisal from the Hospital while they
were in its employ
The General Counsel contends "the Board has repeated-
ly stated that it should not infringe upon the right of any
person to seek redress in the courts " United Aircraft Corpo-
ration (Pratt and Whitney Division), 192 NLRB 382 (1971),
Clyde Taylor d/b/a Clyde Taylor Company, 127 NLRB 103,
108 (1960) However, a threat to file a legal action may be
violative of Section 8(a)(1) of the Act if it is made in a
context of harassment and coercion
In Clyde Taylor Company, supra, the employer threat-
ened a libel suit unless the charging party withdrew the
charges filed against it with the Board In affirming the
Administrative Law Judge's finding of the violation by vir-
tue of this threat, the Board emphasizes that such a threat
restrains employees in the exercise of their right to file
charges under the Act
Since the first paragraph specifically refers to the filing
of the Union's charge, it is clear that the notice was reason-
ably calculated to deter employees of Respondent from
implementing the Union's charge, by providing statements
in support of the charge Accordingly, the implied threat is
no less clear than in Clyde Taylor Company, supra, and the
rationale adopted there is applicable here
The Board's standard with regard to threats of lawsuit as
an unfair labor practice continues to be that stated in Clyde
Taylor Company, supra Where such a threat is of "a harass-
individual contemplating filing a charge from doing so, "it
is an unfair labor practice "
In the case at bar Everett testified that he was very upset
and very angry at the Union for the remarks made about
the Hospital and for filing a charge He vented his spleen
by threatening to file a lawsuit " against those making such
allegations " Blasche and Glasgow, who were representa-
tives of the nurses employed by Respondent, credibly testi-
fied that upon reading the notice they became scared be-
cause they believed that if they gave testimony or a
statement in support of the charge they would be defend-
ants in a countersuit Therefore, they refused to give
statements to the Board agent It is apparent that the pur-
pose for threatening a countersuit was to intimidate, har-
ass, and coerce the nurses with reprisals if they gave testi-
mony at a hearing or signed affidavits for agents of the
Board By such action, Respondent violated Section
8(a)(1) I so find
Upon the foregoing findings of fact and the entire rec-
ord, I make the following
CONCLUSIONS OF LAW
I The Respondent, San Clemente General Hospital, is
and at all material times has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 United Nurses Association of California is a labor
organization within the meaning of Section 2(5) of the Act
3 By the threat to bring a countersuit against those
making the allegations that the Respondent has engaged in
certain activities as set forth in its notice to the nurses dat-
ed June 13, 1975, the Respondent has interfered with, re-
strained, and coerced, and is interfering with, restraining,
and coercing, employees in the exercise of the rights guar-
anteed to them in Section 7 of the Act, and thereby has
engaged and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it will be recommended that it
cease and desist therefrom and from like or related inva-
sions of the employees' Section 7 rights, and that it take
certain affirmative action designed to effectuate the pur-
poses and policies of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDERS
The Respondent, San Clemente General Hospital, San
Clemente, California, its officers, agents, successors, and
assigns, shall
ing nature," which would normally tend to intimidate an Rules and Regulations of the National Labor Relations Board , the findings
3 In the event no exceptions are filed as provided by Sec 102 46 of the
SAN CLEMENTE GENERAL HOSPITAL 381
1 Cease and desist from
(a) Threatening to file a civil damage action against its
employees for participating in the filing of the charge
against Respondent
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed them in Section 7 of the Act
2 Take the following affirmative action which will ef-
fectuate the policies of the Act
(a) Post at its hospital in San Clemente, California, cop-
ies of the attached notice marked "Appendix "'1 Copies of
said notice on forms provided by the Regional Director for
Region 21, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon re-
ceipt thereof, and maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
4In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading `Posted by
Order of the National Labor Relations Board shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board '
notices to employees are customarily posted Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other ma-
terial
(b) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten the United Nurses Associa-
tion of California or the registered nurses employed by
us that we will file a civil damage action against cer-
tain of our employees for participating in filing the
charge in Case 21-CA-13756
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the National
Labor Relations Act
SAN CLEMENTE GENERAL HOSPITAL