Sherwood-Trimble Medical Building

National Labor Relations Board - Board Decisions

Feb 15, 1980

247 N.L.R.B. 1121 (N.L.R.B. 1980)

SHERWOOD-TRIMBLE MEDICAL BUILDING
Sherwood-Trimble Medical Building and Office &
Professional Employees International Union, Local
30, AFL-CIO, CLC and Julianna Wall. Cases 31-
CA-8488, 31-CA-8719, 31-RC-4287, and 31-CA-
8695
February 15, 1980
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 28, 1979, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed limited exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Sherwood-Trimble Medi-
cal Building, Los Angeles, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the allegations of the
complaint that Respondent violated Section 8(a)(4)
and (1) of the Act, other than as specifically found
herein, be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the challenges to the
ballots cast by Bertha Warren, Elizabeth Reynolds,
Margaret Solomon, Hadassak Kalmanson, Elayne
Arnold, and William Kwok in the election held on
November 21, 1978, in Case 31-RC-4287 be over-
ruled and that Case 31-RC-4287 be, and it hereby is,
severed from this consolidated proceeding and re-
ferred to the Regional Director for Region 31 for the
purpose of opening and counting the ballots of Bertha
Warren, Elizabeth Reynolds, Margaret Solomon, Ha-
dassak Kalmanson, Elayne Arnold, and William
Kwok, preparing and issuing a revised tally of ballots
247 NLRB No. 160
including therein the count of the said challenged
ballots, to be served on the parties. If the tally
discloses that the majority of the ballots have been cast
for the Petitioner, then the Regional Director shall
issue a Certification of Representative to the Petitioner
as the exclusive collective-bargaining representative of
the employees in the appropriate unit. In the event
that the revised tally of ballots shows that the
Petitioner has not received a majority of the valid
ballots cast, it is ordered that the election conducted
herein on November 21, 1978, in Case 31-RC-4287
be, and the same hereby is, set aside, and the Regional
Director shall conduct a new election at such time as
he deems the circumstances permit the free choice of a
bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
' In the absence of exceptions, we adopt proforma the Administrative Law
Judge's recommendations that the Petitioner's Objections 1, 3, and 4 be
sustained. In the absence of exceptions, Member Penllo also adopts proforma
the Administrative Law Judge's finding that Respondent's granting of wage
increases warrants setting aside the election, even though that conduct was
not specifically alleged in a written, timely filed objection. See Member
Penello's dissenting opinion in Dayton Tire & Rubber Co. 234 NLRB 504
(1978).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were represented
by their attorneys and presented evidence in support
of their respective positions, it has been found that we
have violated the National Labor Relations Act in
certain respects and we have been ordered to post this
notice and to carry out its terms.
The National Labor Relations Act gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities.
WE WILL NOT coercively interrogate employ-
ees as to how they intend to vote in the
representation election and as to their union
sympathies and those of fellow employees.
WE WILL NOT coercively interrogate employ-
ees as to unfair labor practice charges filed with
the Board.
WE WILL NOT threaten employees that we will
not engage in good-faith negotiations with the
1121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Office & Professional Employees International
Union, Local 30, AFL-CIO, CLC, if they select
the said Union as their collective-bargaining
representative.
WE WILL NOT threaten employees that if they
select the above-named Union as their collective-
bargaining representative, their wages and bene-
fits will be frozen throughout a period of pro-
tracted negotiations.
WE WILL NOT grant our employees wage
increases in order to induce them to withdraw or
withhold their support from said Union.
WE WILL NOT impose more onerous and
rigorous terms and conditions of employment on
our employees in order to discourage their
support of said Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the Act.
SHERWOOD-TRIMBLE MEDICAL BUILDING
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
These consolidated cases were heard before me in Los
Angeles, California, on April 26, 27, and 30, 1979. The
charge in Case 31-CA-8488 was filed by Office & Profes-
sional Employees International Union, Local 30, AFL-CIO,
CLC, herein called the Union and served on Sherwood-
Trimble Medical Building, herein called Respondent, on
October 31, 1978. A complaint and an amended complaint
in Case 31-CA-8488 issued on January 26 and February 9,
1979, respectively, alleging that Respondent had violated
Section 8(aXl) and (3) of the National Labor Relations Act,
as amended, herein called the Act. The original charge in
Case 31-CA-8695 was filed by Julianna Wall, herein called
Wall, on January 30, 1979, and a copy thereof was served on
Respondent on January 31, 1979. The first amended charge
in Case 31-CA-8695 was filed by Wall on March 16, 1979,
and a copy thereof was served on Respondent on March 19,
1979. The charge in Case 31-CA-8719 was filed by the
Union on February 6, 1979, and a copy thereof was served
on Respondent on February 7, 1979.
The petition in Case 31-RC-4287 was filed by the Union
on September 26, 1978. Pursuant to a Stipulatiop for
Certification Upon Consent Election, an election by secret
ballot was conducted on November 21, 1978, among the
employees of the Employer in the unit agreed appropriate.
Thirty-three ballots were cast for the Petitioner, 30 were cast
against the Petitioner, and 7 were challenged. The chal-
lenged ballots are sufficient in number to affect the results of
the election. On November 29, 1978, the Petitioner filed
timely objections to conduct affecting the results of the
election, a copy of which was duly served upon the
Employer. On February 16, 1979, a Report on Challenges
and Objections, et al., issued in Case 31-RC-4287 ordering
that the Union's Objections 1, 3, 4, and other conduct of the
Respondent-Employer as set forth in said report and the
challenge to the ballot cast by William Kwok be consolidat-
ed with Case 31-CA-8488 for the purpose of hearing, ruling,
and decision by a duly designated administrative law judge.
On March 21, 1979 there issued an order consolidating
Cases 31-CA-8488, 31-CA-8719, 31-RC-4287, and 31-
CA-8695 and a consolidated amended complaint alleging
that Respondent has violated Section 8(a)(1), (3), and (4) of
the Act.
The basic issues herein are:
1. Whether William Kwok should be excluded from the
unit as a supervisor within the meaning of Section 2(11) of
the Act.
2. Whether Respondent threatened employees that Re-
spondent would not negotiate with the Union if the Union
won the impending board election and whether wages and
benefits would be frozen until a contract was signed if the
Union were designated as their collective-bargaining repre-
sentative.
3. Whether Respondent instructed an employee not to
report to the Union that Respondent had threatened her
with discharge if she participated in a sick-in.
4. Whether Respondent coercively interrogated certain of
its employees concerning their union activities, sympathies,
and desires and those of fellow employees.
5. Whether Respondent granted wage increases to certain
of its employees in order to induce them to refrain from
giving assistance or support to the Union and to vote against
the Union in the Board election.
6. Whether Respondent imposed more onerous and
rigorous terms and conditions of employment on certain of
its employees because of their union or other protected
concerted activities.
7. Whether Respondent coercively interrogated Wall
concerning a charge she had filed with the Board.
8. Whether Respondent discharged Wall because she had
filed a charge with the Board.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
briefs filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a cooperative health-care facility with an
office and principal place of business located in Los Angeles,
California, is engaged in providing outpatient medical care.
Respondent, in the course and conduct of its business
operations annually derives gross revenues in excess of
$500,000 and annually purchases and receives goods or
services valued in excess of $50,000 directly from suppliers
located outside the State of California.
The complaint alleges, the answer admits, and I find that
Respondent is, and at all times material herein has been, an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
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SHERWOOD-TRIMBLE MEDICAL BUILDING
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
the Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union Organization Campaign and the Alleged
Threats Made at Employer Meetings
Respondent operates a multispecialty medical facility with
27 physicians engaged in individual practices who share
operating overhead expense. Respondent provides support
services-including personnel, laboratory, medicinals, sup-
plies, and equipment to these physicians on a fee-for-service
basis. Respondent employs 90 to 100 employees.
On September 19, 1978,' Rosemarie Kaiser, an accounts
receivable clerk in the accounting department, and Mitzie
Ann Richmond, a medical assistant, met with Union
Representative Gerald Sufleta in Kaiser's home. They both
signed union authorization cards during that meeting and
obtained a number of such authorization cards which they
later distributed to fellow employees. Both Kaiser and
Richmond solicited employees to sign the authorization
cards, attended union organizational meetings, and distrib-
uted union literature to fellow employees. After a number of
Respondent's employees in the unit involved herein signed
union authorization cards, on September 26, the Union
demanded recognition as the collective-bargaining represen-
tative of Respondent's employees. Immediately thereafter,
Helen Hoffman, Respondent's medical administrator and an
admitted supervisor, conferred with a labor consultant and
notified Respondent's supervisory staff and the physicians
serviced by Respondent of the union activity. She instructed
them not to say or do anything with regard to such activity
and informed them that there would be a subsequent
meeting to discuss permissible conduct during a union
campaign.
On September 27, the labor consultant held a meeting
with supervisors, and later with the physicians, during which
he instructed them as to the rules of conduct and behavior
during a union campaign.
On September 26, the Union filed a representation petition
in Case 31-RC-4287. Thereafter Respondent and the Union
entered into a Stipulation for Certification Upon Consent
Election providing for an election by secret ballot to be held
on November 21, 1979.
Thereafter, Respondent sent campaign letters to employ-
ees and held meetings of groups of employees varying from 8
to 13 employees during which the Union's organizational
efforts were discussed. A series of these small meetings were
held on each of 7 days--October 31, and November 1, 8, 9,
15, 16, and 20. Each employee was scheduled to attend four
different meetings. Hoffman presided at the series of three
meetings and Personnel Director Joan Rose and Assistant
Administrator Karl Franzen presided at one. The allegations
herein involve the Hoffman meetings. In general, most of the
' Unless otherwise indicated all dates herein in September through
December are in 1978 and all dates in Janaury and February are in 1979.
witnesses were unable to separate the three Hoffman
meetings in their testimony or to testify with certainty as to
all employees present at the meetings about which they
testified. Thus, in general, the record establishes statements
made by Hoffman during the course of the series of meetings
rather than what was said in any particular small group
meeting.
The complaint alleges that Respondent violated Section
8(aXl) of the Act by Hoffman's threats at these meetings
that Respondent would not negotiate with the Union if the
Union won the impending Board election, and that wages
and benefits would be frozen until a contract was signed if
the Union were designated as their collective-bargaining
representative. Employees Kaiser, Richmond, Julianna
Wall, Donna Fairchild, Michael Garrigue, DeEtta Baker,
and Mary Jane Leslie testified in support of these allega-
tions. All of these witnesses testified as to their recollections
of all the statements made by Hoffman. Although the
testimony differed in some respects they were generally
agreed as to the subject matter discussed and there is a
general consistency in the import of Hoffman's statement as
recollected by them. They specifically testified as follows as
to Hoffman's statements regarding the subject matter of the
complaint allegations.
Kaiser testified that Hoffman said some of the physicians
had told her that, if a union came in and she expected larger
fees from them, they would not pay it and they would leave
first. Thus, there would be a mass exodus of physicians.
Hoffman also said she knew how to treat her employees; that
this was a personal vendetta against her.
Kaiser first testified that Hoffman said they could make
her go to the table, but she did not have to bargain or
negotiate. Later she testified that at one time Hoffman said
that she was required to bargain, but not to reach agreement
with the Union. Hoffman further said she had a year to
negotiate a contract and if at the end of the year there were
no contract that the employees could vote the Union out.
Hoffman further said she could not give raises during the
year of negotiations, that there could be no benefits and no
raises because wages were frozen, that employees with
families would suffer because she could not give the raises
they were expecting, and that it could be 3 or 4 years before
it was settled and wages would be frozen until a settlement
was reached with the Union.
On cross-examination, Kaiser admitted that employees
asked questions as to whether employees would continue to
receive wage increases and that on one occasion, Hoffman
said, "We'll remain status quo. Whatever was done before
will continue." According to Kaiser, Hoffman further said,
that she was told by her advisors that she could not legally
say some things; that she was learning, the employees were
learning; that the employees were to read between the lines;
and that no one had to tell her what benefits to give her
people.
Richmond testified that she attended five or six meetings
and that Hoffman said practically the same things at each
meeting. According to her, Hoffman said that she had a year
to negotiate with the Union and that she did not have to
really bargain and, if it took the whole year, the employees
1123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would probably have to vote again as to whether they
wanted the Union. Later, on cross-examination, Richmond
testified that Hoffman said she did not have to negotiate
with the Union within the year, and that she would not
negotiate, she would sit and listen to what the Union had to
say, but she did not have to negotiate and then at the end of
the year there would be another election. According to
Richmond, Hoffman also said that she would freeze the
wages and that there would be no wage increase during the
time of waiting for her to negotiate with the Union. On
cross-examination she admitted that someone asked Hoff-
man if raises would continue and that Hoffman said people
who were due a raise that month would get one, but anyone
who requested a raise thereafter would not get one, that
wages were frozen. At some point, Hoffman stated that she
was under restraint as to what she could say.
Julianna Wall, employed by Respondent as a licensed
vocational nurse, testified that Hoffman began the first
meeting she attended by saying that the Union should not
get in, that she felt the campaign for the Union was against
her, and that she could not understand why it was
happening. She further said she would not negotiate faithful-
ly with the Union, she did not care how long it took, and she
had nothing to give. She said during this time wages and
benefits would be frozen. She also said that you could not get
blood from a turnip.
As to the other meetings, according to Wall, Hoffman said
she was planning an addition to Sherwood-Trimble and that
she had no more money to give. Hoffman also said that six
physicians were threatening to walk out if the Union got in.
She said you could not get blood out of a turnip; she had no
more money to give; and, if she had it to give, it would have
been given by then. Hoffman further said that if the Union
won she had a year to negotiate with the Union. She said it
could take up to that long to talk. She said she did not have
to bargain in good faith, she had nothing to say to the
Union, and although the Union could get her to go to the
bargaining table, she did not have to talk. According to
Wall, Hoffman further said that, during the year of
negotiations, benefits and wages would remain status quo,
would be frozen, and after the expiration of a year there
would be another election to vote the Union out. Then after
this second election, wages and benefits would go back to the
way they were.
Employee Mary Jane Leslie testified that Hoffman ex-
plained that, after the physicians received their percentage,
wages, supplies, and overhead had to be paid out of the
remainder and after that was done there was nothing left for
wages or increases in benefits. Leslie further testified that
Hoffman said negotiations could possibly take up to a year
and there would be no benefits given and the wages would be
status quo until the negotiations were over, and after a year
there would have to be an election to determine if the
employees still wanted the Union. On cross-examination
when asked as to whether Hoffman said both benefits and
wages would remain status quo, Leslie stated that to her
wages and benefits are the same. She denies that Hoffman
said that she would not negotiate with the Union or that if
the Union won she would not negotiate for at least a year.
Employee DeEtta Baker testified that Michael Garrigue
was present at all the meetings she attended. According to
her, Hoffman said Respondent could not give more than it
had. She said some of the physicians said that, if the Union
got in, they would leave and it would be very difficult to
attract new physicians. She said if Respondent could not
replace the doctors there would not be sufficient work and
some employees would have to be laid off. Hoffman further
said that it would take up to a year to negotiate a contract
and that things would remain status quo. She does not recall
whether Hoffman specified what things or if she actually
used the word "things." Baker recalls that Hoffman men-
tioned something regarding a second election, and that she
said something about decertification and referred to the
Union as gangsters and hoodlums. She does not recall what
was said in these regards nor does she recall the context.
Employee Michael Garrigue testified that at the first
meeting Hoffman informed them that an election would be
held on November 21. She said that under no circumstances
would she bargain with the Union. She reviewed Respon-
dent's financial situation and said that the employees were
being paid as much as possible and further said that there
was an open invitation for anyone to look at the books.
At subsequent meeting, according to Garrigue, Hoffman
said two of the physicians had told her that, if overhead was
raised, they would have to leave. She said that, if the Union
came in, they would have to raise overhead. Hoffman also
said that after a year of negotiations the employees would
have a chance to have another election to vote the Union
out. During this year of negotiations everything would
remain frozen.
Employee Donna Fairchild testified that Hoffman said the
Union would be detrimental to the family working condi-
tions at Sherwood-Trimble. She said negotiations would go
on for about a year, that she would sit down at the table, but
that she would say what she wanted to say, she did not have
to give in. She said she would not close the doors for
anything, but, if the Union did get in, many of the doctors
would quit and consequently, if the doctors were not
bringing in money, she could not pay the employees, there
would be many layoffs, they would be placed on a waiting
list, and there was no telling how long it would be before
they were recalled. She said she could hire persons off the
street at less wages than were presently paid.
Hoffman admits that the meetings over which she
presided were repetitive. She made no attempt to relate in
detail what she said in these meetings. Rather, she denied
making certain statements and, in some cases, testified as to
statements which she did make on the same subject. Thus,
she denied saying that wages and benefits would be frozen or
that she ever used the word "frozen." She denies that she
said she would go to the bargaining table, but did not have to
bargain with the Union; that there would be no wage
increases during negotiations; that negotiations could take
up to a year; that she would not negotiate faithfully with the
Union; that she did not have to negotiate with the Union; or
that, after year, wages would go back to where they were.
According to Hoffman, she basically discussed clinic
policies. She said they were under tight legal restraints and
restrictions as to what they could and could not say; that the
Union could make all kinds of promises, but Respondent
could not. She discussed why the Union could not lend itself
to Respondent's type of operation, explaining the financial
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SHERWOOD-TRIMBLE MEDICAL BUILDING
arrangement with the physicians and the fact that this was
not a group practice, but that the physicians were basically
individuals in practice. She said, if the Union won, the only
thing they would have won is the right to negotiate and that
she would be happy to negotiate in good faith.
Hoffman further testified that she said she would answer
any questions. Someone asked how long it would take to
negotiate. She replied that they had a year to negotiate a
contract. Someone asked what would happen at the end of
the year. Hoffman said that at the end of the year they had
the right, if they wanted, to have another election to
decertify the Union if they did not want the Union. At every
meeting, someone asked if they would continue to receive
wage increases. Hoffman said everything would remain
status quo. She then explained that meant that everything
remained as is. If an employee was entitled to an annual
review, that employee would receive an annual review. If an
employee was entitled to a merit increase, the employees
would receive a merit increase.
She denies mentioning giving them better benefits and/or
wages. She also denies that any employee inquired as to
benefits. She denies saying she did not have to give in to the
Union's demand and does not recall stating that, if a
contract was not reached within a year, there could be a new
election. She does not recall whether she mentioned that a
contract could be reached in less than a year. She denies
saying she though the union campaign was a personal
vendetta.
Neither Rose nor Franzen testified specifically as to what
Hoffman said during these meetings. Rather, in response to
leading questions they denied that she made certain alleged
statements. Rose testified that she attended all of the
meetings. Franzen testified that he did not attend all of
them. They both deny that Hoffman said that there would
be no benefits or wage increases during negotiations; that she
said she would go to the bargaining table, but did not have to
bargain; or that she did not have to negotiate with the Union
or did not have to negotiate for a year.
According to Rose, Hoffman said negotiations could take
up to a year and that she would bargain in good faith.
Franzen testified that Hoffman said by law you have to
bargain in good faith with the Union. Franzen denies that
Hoffman said she would not bargain with the Union and
Rose does not recall her making such a statement. Franzen
denies that she said the union campaign was a personal
vendetta against her. He admits that he might have such a
statement. Rose testified that Hoffman did make this
statement.
Franzen testified that he does not recall if Hoffman said
what would happen after a year of negotiations. He recalls
that there was mention of a decertification process, but he
does not remember any discussion as to how decertification
could be accomplished. Rose testified that Hoffman said
everything would remain status quo during negotiations
which could take up to a year and that what happened
before would happen in the future. Both Rose and Franzen
testified that, during the meetings which they chaired,
employees asked if wages would be frozen. They replied that
wages were not frozen, that frozen was the wrong terminolo-
gy, that wages and benefits would remain status quo, and
that what happened before would happen in the future.
Employee Clara Shappiro testified that the basic theme of
Hoffman's statements was that Respondent was too small a
facility to require a union and that the Union could promise
anything, but could not deliver unless management agreed.
She does not recall Hoffman using the word bargaining and
she never heard Hoffman refer to "bargaining table."
Hoffman said that after the election there would be a period
of negotiations which she intended to enter into. She said it
could be several months or it could be a year. Hoffman said
that during the time before the election, and after the
election during negotiations, everything would remain status
quo. Shappiro further testified that someone asked what that
meant. She replied that one would be evaluated for, and
entitled to, a wage increase at the same time that they had
been in previous years. Hoffman did not mention benefits.
Hoffman said there would be negotiations and, depending on
what the demands were, there might be agreement or
disagreement. Hoffman did not refer to what would happen
at the end of a year of negotiations. She did not mention a
second election. Shappiro also testified that Hoffman never
said she thought the union campaign was a personal
vendetta against her.
Employee Margaret Solomon testified that Hoffman
explained that the financial structure of Respondent was
rather unique in that the physicians do not work for
Respondent, but are each individual practitioners working
under contract with Respondent. Respondent provides all
the services and the equipment that the doctor needs to
practice and in return, the doctor pays a percentage of his
income to Respondent. This percentage is fixed by the
contract which necessarily limited the funds Respondent
had available for employee benefits over and above basic
salaries. Hoffman said Respondent was always trying to
improve benefits, but, because of these financial limitations,
it was not always possible to do what they liked for the
benefit of employees.
According to Solomon, Hoffman also said there would be
no change in the status quo, that during negotiations the
status quo would be maintained and that any policies in
effect would be continued. She did not refer to any particular
policies. Solomon does not recall Hoffman using the words
"frozen" or "bargaining." She did not say she would not
bargain with the Union. She did say that if the Union won
the election it would be followed by a period of negotiation
to determine the terms of the contract. Solomon does not
think Hoffman specified what the period of negotiations
would be. However, she thinks that Franzen or Rose said
there would be a negotiation period of up to a year following
the election.
According to Solomon, in the Rose-Franzen meeting
someone asked what would happen if a contract were not
signed by the end of a year. Franzen said the employees had
two choices, they could vote for a strike or have an election
to decertify the Union. According to Solomon, very few
questions were asked at the Hoffman meetings, but there was
a lot of discussion during the Rose-Franzen meeting. She
does not recall any questions regarding wages and benefits at
the Rose-Franzen meeting.
Since the meetings were held in small groups and there is
no indication that any two employees, other than Baker and
Garrigue, attended all of the same meetings, variations in
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their testimony are not necessarily significant. On the other
hand, the testimony of the General Counsel's witnesses tend
to be mutually corroborative since, notwithstanding the
variations, the import of Hoffman's statements, as recounted
by them, is substantially the same. Thus Kaiser, Richmond,
Wall, and Garrigue all testified that Hoffman said words to
the effect that although she was required to meet with the
Union she did not have to actually attempt, in good faith, to
reach an agreement and if she prolonged the negotiations for
a year then there could be a second election to decertify the
Union. Leslie testified that Hoffman said it could take up to
a year to negotiate a contract and after a year there would be
an election to determine if the employees still wanted the
Union. Baker also testified that Hoffman said it could take
up to a year to negotiate a contract and that she said
something which Baker does not recall, regarding a second
election and decertification.
Kaiser, Wall, Baker, Garrigue, and Fairchild all agree
that Hoffman emphasized that union representation meant
that Respondent would lose doctor-clients, resulting in loss
of jobs. Wall, Leslie, and Garrigue testified that she said
Respondent had no money to be used to improve working
conditions. Kaiser and Richmond testified, and Hoffman
admits, that she said she was under restraint as to what she
said. Kaiser testified, without contradiction, that Hoffman
also said employees should read between the lines.
Hoffman denies that she made any of the critical state-
ments. However, she admits that, in response to a question
as to how long it would take to negotiate, she said they had a
year to negotiate. When someone asked what would happen
at the end of the year, she said they had a right to have
another election to decertify the Union. At no time did she
inform them that negotiations could continue, and she does
not recall whether she mentioned that an agreement could be
reached in less than a year.
I find the employee witnesses, most of whom are still in
Respondent's employ, to be honest, reliable witnesses whom
I credit. I do not credit the denials of Hoffman, Rose, and
Franzen. I note that, although Rose and Franzen denied that
Hoffman made certain critical statements, they do not
corroborate her as to what she did say as to these subjects.
Even though Rose was the only witness who attended all of
the meetings she gave no detailed testimony as to what was
said by Hoffman.
I find that when Hoffman's statements are considered in
their totality, it is apparent that she was attempting to, and
did, convey to employees, that during negotiations Respon-
dent was not prepared to seriously consider agreeing to any
improvements in their terms and conditions of employment,
but rather intended to engage in sham bargaining and
protract negotiations past the certification year at which
time a decertification election would be held. This clearly
conveyed to employees the futility of selecting the Union as
their collective-bargaining representative. I therefore find
that Respondent violated Section 8(aXl) of the Act by
threatening that it would not engage in good faith negotia-
tions with the Union if the employees selected the Union as
their collective-bargaining representative. Donn Products
Inc. & American Metals Corporation, 229 NLRB 116 (1977);
Leroy W Craw, Jr., Vernon E. Craw and Daniel G. Leonard,
d/b/a Craw & Son, 227 NLRB 601 (1976).
I do not credit Hoffman, Rose, and Franzen that Hoffman
never used the term "frozen." Kaiser, Richmond, Wall,
Leslie, and Garrigue credibly testified that not only did
Hoffman say wages were frozen, but she further said that
they would be frozen throughout the year of negotiations.
Kaiser also credibly testified that Hoffman said that employ-
ees with families would suffer because wages would be
frozen until a settlement was reached with the Union which
might be 3 or 4 years. Even assuming arguendo that
Hoffman did not use the term frozen but said that wages
would remain status quo, the import of the statement
remains the same since she went on to say that this situation
would continue for the year of negotiations or even for 3 or 4
years. Hoffman's explanation of her reference to status quo
during the meeting attended by Clara Shappiro, employee
witness for Respondent, is not inconsistent with the testimo-
ny of the other witnesses as to what was said. This
explanation was given in direct response to a query as to
what she meant by status quo. The account of Margaret
Solomon, Respondent's other employee witness, and of the
General Counsel's witnesses contains no such assurance that
past practices as to wage increases would be followed.
Accordingly, I find that by such statements, Respondent
intended to, and did, convey to employees that, because of
the impending election, they were being deprived of benefits
they might otherwise have received and that if the Union
won the election this deprivation would continue throughout
the period of negotiations but if the Union lost the election
wage increases would be resumed. Such conduct is violative
of Section 8(a)(1) of the Act. Marathon Metallic Building
Company, 224 NLRB 121 (1976); Signal Knitting Mills, Inc.,
237 NLRB 360 (1978).
B. The Alleged Imposition of More Onerous and
Rigorous Terms and Conditions of Employment
Kaiser began working for Respondent in December 1977
as an accounts receivable clerk. Her duties required her to
obtain records from the chartroom at the opposite end of the
building from her office and to consult with physicians and
patients whose accounts were delinquent. These discussions
were held in various places including the front desk, the
reception area, and in the doctors' offices. Kaiser estimated
that she was away from the accounting office about 50
percent of the time. This continued until late October 1978
when she was allegedly restricted to her desk.
Kaiser testified that, in late October when she was on her
way to see a patient in a doctor's office, she was stopped by
Hoffman in the hallway. Hoffman told Kaiser she did not
want her going around the building anymore. She did not
want Kaiser to contact the physicians directly, but rather to
contact their secretaries by telephone. Kaiser was not to
leave her desk. Hoffman then asked if Kaiser understood.
Kaiser said yes. Hoffman denies this conversation.
Kaiser further testified that about a week later Hoffman
came into the accounting office and told Evelyn Mazeika, an
admitted supervisor, in the hearing of the employees, that
the accounts receivable clerks were not to leave their desks,
that if they needed charts the charts would be pulled by
1126
SHERWOOD-TRIMBLE MEDICAL BUILDING
Garrigue and Terry Matsumiza, both employees in the
accounting office.2 Later Mazeika told the accounts receiva-
ble clerks that they were not to leave their desks, but that if
they had to leave, in her absence, they were to notify
Franzen, or Hoffman, if Franzen were unavailable. If
Hoffman were unavailable a note was to be left on Mazeika's
desk. Someone asked "even the bathroom?" Mazeika replied
yes.
Garrigue testified that a memo signed by Franzen was
circulated which stated that the accounts receivable clerks
were to remain at their desks except for breaks and lunch.
According to Kaiser and Garrigue, about a week prior to the
election, another memo was circulated stating that the
previous procedure would be resumed, that the new proce-
dure consumed too much of Garrigue's and Matsumiza's
time.' Garrigue also testified that before the institution of the
new procedure and after its rescission he did pull charts for
the clerks as a favor, if it were convenient.
Rose testified that, shortly before September 26,' she was
analyzing procedures in the accounting department. As a
part thereof, she spent some time with Kaiser at Kaiser's
desk. Rose and Kaiser agree that Kaiser suggested that her
job would be much easier if someone would pull charts for
her. According to Rose, this was in response to Rose's query
as to what change Kaiser would make if she could change
one thing to make things run smoothly. Kaiser said she
spent so much time pulling charts that it impaired her
effectiveness at her desk.
According to Rose and Hoffman, Rose reported this
suggestion to Hoffman. Thereafter, according to Hoffman,
she went to the accounting office and told Mazeika she
wanted to try this procedure to see if it were workable.
Kaiser asked, "Does this mean I'm restricted to my desk?"
Hoffman said, "No, it doesn't mean you are restricted to
your desk." Kaiser said, "Does that only apply to me."
Hoffman said no, it applied to all the girls that were doing
collections.' Hoffman further testified that two of the
accounts receivable clerks were not in the office so she
instructed Mazeika to be sure they were informed of the new
procedure. She also told Mazeika to find someone to pull the
charts.
Mazeika also testified that Kaiser asked if this new
procedure only applied to her and that Hoffman replied no,
she meant the girls on the desk. However, she further
testified that Hoffman said two of the boys in the depart-
ment would pull the charts. Mazeika denies telling anyone
not to leave their desk or that they were not to leave even to
go to the bathroom. She does not deny that she told them to
follow the procedure of notification when they left their desk
to which Kaiser testified. When asked, if the accounting was
to continue when the secretaries went on their breaks, to
lunch, and to the restroom, Mazeika did not answer the
question directly. Rather, she merely testified, "Well, all of a
sudden [Kaiser] stopped taking breaks and I would have to
remind her twice a day to go take a break." This continued
for about a week or 10 days. Mazeika did testify that
'Garrigue is the mail clerk. Matsumiza traces changes of address.
' According to Garrigue the new procedure was in effect for about a week.
According to Mazeika, it was less than a week. Kaiser specifically testified it
was more than a week, but less than a month, however. from a consideration
of her total testimony as to timing, her testimony is it was more than a week,
but probably not more than 2 weeks.
employees had been instructed about 5 months previously to
notify her when they left the office. Garrigue confirms that
this was the policy. Mazeika denies that any memos were
circulated with regard to the change in procedure. Accord-
ing to her she was notified of the rescission of the change by
Franzen. He said the new procedure was not working out
and they were to resume the previous procedure.
Employee Isabelle Freedland testified that at some point
Kaiser stopped taking breaks and started asking permission
to go to the bathroom. She does not recall if this were before
or after the election. She does not recall anyone else doing
this. Freedland also testified that she heard Mazeika tell
Kaiser to take a break and that everyone was supposed to
take a break. Kaiser said she did not want to take one, for
she did not like some of the people. Mazeika said, "If you
don't go to the lunchroom, then go outside and take a walk.
You must take your break."
Richmond began work for Respondent on June 1, 1976.
Both she and Kaiser were election observers for the Union.
Richmond is a medical assistant assigned to Dr. Richard
Antin and Dr. Edmund D. Warren. She is stationed outside
of the doctors' offices along with Dorothy Bonham and
Nancy Mikesell, both of whom are assigned to Dr. Warren.
Richmond testified that on November 22, the day following
the election, Hoffman told her that she (Hoffman) was the
boss because she won the election and, that they were going
to quit fooling around, having picnics, and get to work.
Later that day, Hoffman came into the lounge while
Richmond was taking her break there. Hoffman asked what
Richmond was doing there. Richmond explained that she
was taking her break. Hoffman said, "You're always taking
your break when I come in here. I want you in fifteen
minutes, [to] make a list or schedule of your breaks that you
take and put them on my desk." Richmond said, "Okay, Ms.
Hoffman." Hoffman left the lounge, but returned within a
few minutes. Richmond attempted to say something to her,
but Hoffman said, "I just want that schedule on my desk in
15 minutes."
In early afternoon of that same day, according to
Richmond, Nursing Supervisor Jane Ball told Richmond,
Mikesell, and Bonham that she had been reprimanded by
Hoffman and that she had to schedule breaks for nursing
personnel. On November 30, as Richmond was about to
clock in, Hoffman asked what she was doing. Richmond said
she was getting ready to clock in. Some remarks were made
relative to insurance and then Hoffman said, "Well, I want
you to give me a record every 2 to 5 minutes in an 8-hour
period day at the end of the day, give me the schedule before
you go home." Richmond did begin such a record. However,
after making entries for about an half hour, she then decided
that she was not going to comply with Hoffman's instruc-
tions. Thereafter she made no further entries and did not
give Hoffman the entries she had already made. Hoffman
never mentioned this request again nor the fact that
Richmond had not complied with it.
' Rose was employed by Respondent on August 28. According to her. she
was working with Kaiser on September 26 when Hoffman called her into the
office to inform her of the Union's demand for recognition made by Sufleta
during a telephone conversation.
'There were four employees doing collections.
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richmond testified that, prior to the election, she,
Bonham, and Mikesell rotated their breaks, but did not take
breaks in any particular order. Richmond testified that she
usually took her afternoon breaks, but did not take a
morning break for maybe 3 out of 5 days because the doctor
needed her services. The same was true of Bonham and
Mikesell. Bonham testified that there was no reason why the
three of them could not take breaks at a scheduled time
because when one was on break the others would assist the
doctors. Richmond agrees that, when the three of them are
on duty, there is no difficulty taking a break. However,
Bonham only worked for Dr. Warren 2 or 3 days a week.
On November 22, after the conversation with Ball, a
schedule for breaks was posted. According to Richmond,
she asked Ball about continuing to work if the doctor needed
her at the time her break was scheduled. Ball said Richmond
had to take her break at the scheduled time. On one
occasion, Hoffman became upset upon observing Richmond
taking a break at a nonscheduled time. Thereafter, Rich-
mond took her breaks exactly as scheduled. According to
her, however, Mikesell and Bonham did not always do so.
Hoffman denies that she instructed Richmond to give her
a record of how she spent her time in 2 to 5 minute
segments. She does not recall if she required Richmond to
take breaks at scheduled times. According to Hoffman, she
goes into the coffeeroom five or six times a day. For several
weeks when she went into the lounge, no matter what time
of day it was, Richmond was there. So one day she said to
Richmond, "You know, you're always in here. Don't you
have an approximate time that you take your breaks?"
Richmond said, "Yes. It's usually between 10:00 and 10:30."
Hoffman said, "Well, it would be nice if you really adhered
to those times because whenever I come in here, you're in
here."
Rose admits that scheduling breaks is a problem and that
many employees complain that they can never take breaks,
there are no scheduled times, and, whenever they try to take
breaks, there is no one to cover for them. Thus, according to
Rose, she and Ball spent a lot of time trying to schedule
breaks, but a schedule was obsolete by the time it was
posted.
I credit Richmond's denial that she took more than the
permissible two coffeebreaks a day. Neither Ball nor
Bonham corroborated Hoffman's testimony that over sever-
al weeks Richmond was in the lounge five or six times a day.
I find it incredible that Richmond could have taken that
many breaks over that period without Bonham being aware
of it or without engendering complaints from Dr. Antin of
which Ball should have been aware. Even assuming that
Hoffman was merely exaggerating thd number of breaks and
that her concern was the varying hours of the breaks, her
reaction is suspect. After 23 years as administrator of that
facility she had to be aware that the inability to take breaks
at regularly scheduled times was common.
In the circumstances, including the timing on the day
after Richmond acted as union observer at the election, I
find that Hoffman's insistence that Richmond was to take
breaks only at scheduled times was motivated by Rich-
mond's union activity. I further find that, in the circum-
stances, this restriction constituted a more onerous and
rigorous term and condition of employment.
I also do not credit Hoffman's denial that she told
Richmond to make a record of what she did in 2 to 5 minute
segments. Respondent argues that even if Hoffman did give
this instruction it was neither rigorous nor onerous. Even
assuming that this description is true, no other employee was
requested to do this and Respondent offers no reason for
such a request. In the circumstance I find that this was
another method used by Hoffman to vent her ire at
Richmond's union activity. Accordingly, I find that, by
requiring Richmond to take her breaks only at scheduled
times and by instructing her to record what she did in 2 to 5
minute segments, Respondent violated Section 8(a)(1) and
(3) of the Act.
As to the restricting of the accounts receivable clerks to
their desk, Respondent argues that Hoffman was merely
putting into effect Kaiser's suggestion. This contention is
factually inaccurate. Kaiser's suggestion was simply that
someone pull charts. The procedure instituted by Hoffman
went beyond this. Any assumption that the further restric-
tion of movement through the facility in order to speak with
physicians and patients was motivated by considerations of
efficiency and productivity is negated by the undenied
further requirement that, in the absence of Mazeika,
Franzen or Hoffman was to be notified when one of the
accounts receivable clerks left their desk. It seems incongru-
ous to require this sort of notification to the two top
management officials in a facility employing 90 to 100
employees. Ball admits that it was common knowledge that
Kaiser and Richmond instigated the union campaign. The
scope of Kaiser's duties was such that she could move freely
through the facility and could, and did, talk to fellow
employees as she moved about. It is reasonable to conclude
that Respondent would perceive this freedom to be advanta-
geous to the Union's organizational effort.
Indicative of Respondent's illegal motivation in curtailing
this activity is the fact that initially the restriction applied
only to Kaiser. I do not credit Hoffman's denial that she had
a conversation with Kaiser restricting her to her desk a week
before the restriction was extended to other accounts
receivable clerks. I have heretofore found that Hoffman's
testimony was not credible in certain other regards, and,
contrary to Respondent's contention, even if I credit
Hoffman and Mazeika's testimony as to Kaiser's reaction to
the general announcement, her queries as to whether this
meant she was restricted to her desk and whether this
applied solely to her is more consistent with the alleged
conversation having occurred. According to all accounts of
Hoffman's statement, I conclude that the total restricti-
veness of the new procedure would probably not have been
apparent except from the perspective of Hoffman's earlier
conversation with Kaiser. It was not until Mazeika's
statement that it became apparent. Yet Kaiser's response to
Hoffman indicates an awareness of the probable scope of the
restriction.
Freedland's testimony that Kaiser asked to go to the
bathroom is also consistent with Kaiser's testimony, which I
credit, that Mazeika required notification upon a trip to the
bathroom. I do not find it significant that Kaiser and
Richmond were perhaps more diligent in adhering to these
new requirements than their coworkers. Although union
activists vary in their reaction to perceived illogical changes
1128
SHERWOOD-TRIMBLE MEDICAL BUILDING
in working rules during a union organizational campaign, it
is not uncommon for one to punctiliously follow such rules
in an attempt to avoid giving the employer an opportunity
for discrimination.
In all the circumstances, I find that Hoffman restricted
Kaiser to her desk to discourage her union activities and, in
an effort to disguise her motivation, extended the restriction
to all accounts receivable clerks. Accordingly, I find that
Respondent thereby violated Section 8(a)(l) and (3) of the
Act.
C. The Alleged Interrogations
Kaiser testified that, about a week and a half before the
election, Ball walked up to her and asked Kaiser to
telephone her that night. Ball then asked "how many yes
votes do you think we have," and "how many members do
you think we have."' Ball denies this conversation.
Wall testified that she had three conversations with Ball
regarding the Union. The first conversation was in the first
part of November. Employee Nata Kavetsky was present.
According to Wall, Ball said that as nursing supervisor the
nurses would stand behind her and vote no against the
Union. Ball said Sherwood-Trimble was a family and the
Union would ruin the family atmosphere. Ball then asked
Wall how she felt about the Union. Wall said she did not
think the Union should get in, that her husband had advised
her to vote against the Union. Ball said Hoffman had done
some good things for Sherwood-Trimble; that the Union was
mainly against Hoffman personally. Ball then asked if Wall
thought Richmond or Kaiser was involved. Wall said she
did not know.
Kavetzky testified that Ball put her head on the desk and
said she was tired. Kavetzky asked why she was tired, why
she was taking it so hard, and said she should not take it so
hard. Ball said if the Union came in she would quit.
Kavetsky said she thought Sherwood-Trimble was too small
for a union, that they had very good contact with Hoffman
over the years, and that she did not think they needed
anyone. She does not recall what Wall said or anything else
that Ball said, but she thinks that Wall did say something.
Ball testified that Kavetsky asked how Ball felt about
everything that was going on. Ball said that right now the
way things are they were one big happy family, that
Kavetsky was good proof of this since she had worked there
18 years. Ball said we pitch in, we help each other out
whenever we can. She said it was her feeling that if a union
came in job descriptions would be more structured and
defined and that it would really be a hardship for them, they
would not be able to function as a family unit. Wall said her
husband had been involved in a union drive and he had very,
very poor feelings about the Union. He had advised her to
never get involved, to vote no for the Union. Ball does not
recall whether she responded to that or whether Kavetsky
responded. Ball denies asking Wall if Richmond or Kaiser
were involved. According to Ball, there was no reason to ask
that question since it was common knowledge that Rich-
mond and Kaiser were directly involved in trying to secure
representation by the Union. Ball admits that she probably
I Kaiser testified that during the union campaign it was rumored that Ball
was sympathetic to the Union. Ball admits that, following her voluntary
discussed with Sufleta that she had spoken to Wall regarding
her union activity. She does not remember whether she told
him, "I have blown it, because I asked Julianna if she was
going to vote for the Union." She denies that she told Sufleta
that she had asked Wall about the activities of Kaiser and
Richmond.
Wall testified, without contradiction, that her second
conversation with Ball was about a week and a half before
the election. Ball said she had changed her mind, that she
thought the Union should get in and that it could do good
things for Sherwood-Trimble. She said she knew Wall was
for the Union and that she had talked to Sufleta.
Wall also testified that, a few days before the election, she
and Joanne Johnson were near Ball's desk. Johnson asked
Wall if she were going to Shakey's Pizza in Culver City.
Wall said yes, she was, that it was a union meeting to which
everyone was invited. Ball said she wanted to go, but she did
not think she should because she was nursing supervisor. She
said she would have to talk to Jerry (Sufleta) about it. Wall
asked Ball if she would like to go with her. Wall said she did
not think she should because she was nursing supervisor.
Ball testified that, a few days before the meeting, Johnson
showed her a piece of union literature announcing a meeting
to which everyone was invited to attend and ask questions.
Wall may have been present. Ball said she wondered if she
could go since it said all employees were invited. She then
jokingly said she should call Jerry Sufleta and ask him if it
were all right for her to attend. She did not call Suflata, but
she did ask Hoffman if it were all right for her to attend.
Hoffman said she could not because she was a supervisor.
Wall further testified that a week before the election
Franzen joined her at a table at Chris' Pizza. He asked how
she was and they talked about work for a few minutes.
Franzen then asked how she thought the Union was going to
go, if she thought it was going to get in. Wall said she did not
know. Franzen asked how she was going to vote. Wall said
she did not know. Wall then said she had to return to work
and left.
Franzen admits that he talked to Wall in Chris' Pizza
during the week prior to the election. According to him,
they discussed Wall's plans to buy a new car. They did not
discuss the union election. He did not ask her how she
thought the election would go nor how she was going to
vote.
I credit Wall's testimony as to her conversations with
Ball. I found her to be an honest, reliable witness. Most of
her version of these conversations is either undenied or
admitted by Ball. Ball also admits that she probably told
Sufleta that she had spoken to Wall regarding her union
activity. She does not remember if she told Sufleta she asked
Wall if she were going to vote for the Union. I do not credit
her denial that she asked about the involvement of Rich-
mond and Kaiser. I am convinced, from her testimony and
her manner, that the denial is not based upon her actual
recollection, but rather upon the fact of her already acquired
knowledge of their involvement. It is not uncommon for
persons to pose questions to which they already know the
answer as a means of inducing discussion. I also credit Wall
as to her conversation with Franzen.
separation from Respondent's employ on January 22, she spoke to Suneta
several times.
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Kaiser as to the conversation with Ball. At or
about that time, Ball admitted to Wall that she was
prounion. She knew that Kaiser was one of the two
instigators of the Union and she admits that she may have
jokingly had conversations with employees regarding the
Union, which she does not now recall.
I conclude that, in the circumstance, the interrogations of
Kaiser and Wall by Ball and Franzen were coercive and
Respondent thereby interfered with, restrained, and coerced
employees in the exercise of their rights under Section 7 of
the Act. Accordingly I find that Respondent violated
Section 8(a)(1) of the Act by Ball's interrogation of Kaiser;
Ball's interrogation of Wall as to her union sympathies and
the union sympathies and activities of Kaiser and Rich-
mond; and by Franzen's interrogation of Wall.
D. The Wage Increases
Hoffman testified that Respondent's wage policy did not
change after the Union's demand for recognition. Initially
she testified that employees are usually given an annual
review. Although, if an employee is hired perhaps as a
trainee, or at a lower salary than usual, then the employee
will receive a review, and increase, after 3 months. If
employees are hired at the normal wage level then they only
receive an annual review which could be given anytime from
10 to 13 months. According to her most employees receive
increases following the annual review, but not always. Also a
person doing an exceptionally good job may receive an
increase during the course of the year. As a rule the amount
of the increase follows the consumer index. Hoffman also
testified that she goes through each payroll and when
someone is due for a review she reviews them. She further
testified that someone usually recommends whether there
should be an increase-Franzen, Rose, or the employees'
immediate supervisors.
However, on cross-examination, Hoffman admitted that
for years she had tried to institute a performance evaluation
system, but that it was only done sporadically. She thinks
that Rose instituted such a system, but she does not know
exactly when.
Rose testified that the policy is that each employee is
reviewed yearly unless a new employee is hired at a lower
wage rate, in which event they receive a 90-day review. Rose
also admits that when she began her employment with
Respondent there was no regular evaluation procedure.
There still is not, but she is trying to institute one.
Franzen described the annual review as usually checking
with an employee's supervisor. There is a form and work
activity, promptness, and general attitude is taken into
consideration. Then Hoffman, Rose, and Franzen discuss
whether to grant the wage increase.
Rose admits that wage increases were granted during the
election campaign. There is also testimony from employees
that such increases were granted. Thus Richmond testified
that when she was hired in June 1976 she was told she would
receive raises after 3 months, then after 6 months, and
thereafter annually. She received a 3 month's raise of 5 or 10
cents per hour and a 6 month's raise (after 8 months) of
'Richmond had only been employed for 2 years.
' The parties stipulated that Baker received wage increases on May 24,
1978, and October I 1, 1978. There was no stipulation as to the 1977 increases.
between 10 and 15 cents per hour. It is unclear when
Richmond received her annual wage increase. She testified
that it was after a year. When asked "a year after when," she
testified that she was unsure, that she thought it was a year
after the date she was hired, but that she was informed that
it was a year after her last pay increase.
Richmond received her last pay increase on September 29,
1978. According to her, on June I she told Franzen she was
due for her third annual wage increase. Franzen said he
would have to check her records. About a week later, he
informed her that she was not due for her annual wage
increase until August. When there was no increase on her
first August paycheck, Richmond reminded Franzen that he
said she was due for an increase in August. Franzen
complained that the employees did not know what he had to
go through when he talked to Hoffman about granting
raises. Richmond said she was just asking for her yearly
raise. Franzen said, "Well you just didn't get it."
About a week later, according to Richmond, Franzen said
he would like to explain why she did not get a raise. He said
Hoffman had informed him that Respondent did not give
annual wage increases after 3 years of employment. Rich-
mond did not question his reference to 3 years.' Again
Richmond said she was just asking for her yearly raise.
Franzen said, "Well I'm sorry, you just won't be getting it."
Yet on September 29, she received a paycheck reflecting a
33-cent-per-hour pay increase for the pay period September
13 to 26. Richmond's only notice that she would be receiving
a raise was when Franzen passed her in the hallway and
said, "By the way, you got your raise." Richmond has no
knowledge that she ever received a wage review prior to
receiving her wage increases.
Franzen denies that he ever told Richmond she would not
receive an annual wage increase. He testified that Richmond
reminded him it was time for her annual review. He said he
would review her records. He did and found that she was
due for a raise. This was about 3 weeks before the election.
He discussed her performance with Rose and Dr. Antin and
perhaps with Hoffman. According to him, he was not
satisfied with her performance 100 percent and he had
mentioned this to her. On cross-examination, Franzen
testified that when he told Richmond he would check the
records and get back to her, he did this within a couple of
hours, but it was probably 3 or 4 days later that he told her
she would receive a raise. According to him, raises were put
into effect usually on the next pay period after it was
determined. I do not credit Franzen that he never told
Richmond she would not receive her annual wage increase. I
have previously found him to be an unreliable witness. He
does not specifically testify as to the June refusal.
Baker testified that she has received four wage increases-
30 cents an hour in May 1977, 20 cents an hour in about
December 1977, 30 cents an hour in May 1978, and 25 cents
an hour in the latter half of October 1978.' According to her,
in October she told Rose she had been transferred from
medical records to the industrial department, she felt she
now had more responsibilities and she wanted a wage
increase.' Rose said she had not known that Baker had not
received a wage increase when she transferred and that she
' Baker was transferred the second or third week of August.
1130
SHERWOOD-TRIMBLE MEDICAL BUILDING
would get back to her after she had Elayne Arnold evaluate
Baker.'" About a week later on October 23 Arnold said Rose
had decided to grant Baker the wage increase" and she
wanted to go over the evaluation with her. She then showed
Baker an evaluation and asked her to sign it.
The next week Baker's wage increase was reflected on her
October 27 paycheck, about 3 days following the evaluation.
According to Baker she received the three prior wage
increases after she had requested them. Neither of them were
the result of a change in job classification. The first two were
reflected on her paycheck about 4 weeks following the
request, the third about 2 weeks. Baker also testified that the
October evaluation was the first that she had received to her
knowledge. Rose did not specifically say that the wage
increase was dependent upon the evaluation.
Wall testified that she was hired in July 1978. At the time
Franzen told her she would be given a raise after 3 months
and after 6 months. She received one after 3 months, but did
not receive one after 6 months. She does not recall him
mentioning an annual increase.
Fairchild testified that when she was hired on September
29, 1974, she was told she would be reviewed after 3 months,
would receive a raise after 6 months, and thereafter would
receive annual wage increases. During her 5 years of
employment she has received 3 wage increases. She did not
receive the annual wage increase due in September 1978. She
was not told why and she did not receive a wage review. She
has never received any complaints or discipline regarding
her work performance. In October she asked Rose for a
raise. Rose then talked to the people in charge of the
laboratory, where Fairchild works. About 3 or 4 days later
Rose told Fairchild she could not give her a raise. She did
not explain why.
Arnold testified that, in her experience, her wage increases
have always been retroactive to the beginning of the pay
period during which she was told she would receive the
raise. Shappiro has been in Respondent's employ since 1968.
She testified that she has always received an annual wage
increase, but that she has no knowledge that she was ever
given a performance evaluation. Solomon began work part
time for Respondent in January 1966 and full time in
September 1971. At the time of her hire she was told that she
would receive a performance review and a wage increase
after a 90-day probationary period and thereafter annual
wage increases on approximately her anniversary date. She
did receive wage increases in accordance with this policy.
Also in 1978, she receive wage increases on June 7 and on
September 27. According to her, this later may have been
because around the last of September she took on the job of
straightening out the orthopedic billings for insurance which
she described as being "in a real mess." This assignment was
temporary and lasted until after the election. The parties
stipulated that the payroll records indicate Solomon received
a wage increase of 28 cents an hour on June 7, 1978, and 35
cents an hour on September 27, 1978.
Rose testified that Shappiro requested a raise during the
union campaign which was denied because it was not time
' Arnold is the senior employee in the industrial department. There is no
supervisor in the department. Arnold reports to Hoffman.
"Arnold denies that she told Baker she would receive a wage increase.
"Rose also later testified on cross-examination:
for her annual review. During this same period, Grace
Coscia and Fairchild requested raises based on an alleged
change in job duties. The request was denied after Rose
determined that there had been no change in job duties. She
does not deny that Fairchild's annual review was due in
September and does not explain why she did not receive an
annual wage increase.
As to Baker, Rose testified that the wage increase was
granted after she reviewed Arnold's evaluation of Baker.
The increase was granted on the basis of a change in job
descriptions. She further testified that she cannot explain
why Baker's evaluation is dated October 23 and the payroll
indicates that she received the increase on October 11. She
thinks the date on the payroll record is the effective date
rather than the date of approval.' Rose admits that other
wage increases were granted during the union campaign. She
participated in the decision to grant a wage increase to
Nancy Mikesell, but only has a vague recollection of the
circumstances. As she recalls, it was a merit increase on the
basis of an increased workload. The parties stipulated that
Mikesell's payroll records indicate a wage increase of 20
cents an hour on February 1, 1978, and an increase of 50
cents per hour on September 27. Rose testified that to her
knowledge there exists no review or evaluation record for
Mikesell.
It is apparent from the record that Respondent's wage
policy was exceedingly loose. Thus employees were given
performance evaluations only sporadically. The so-called
annual increase might be granted anywhere from 8 to 13
months after the employee's last anniversary date. There was
no effective system for routinely identifying employees due
for consideration as to an annual increase and making a
determination as to whether to grant an increase. Some
employees were considered for an increase only after the
employee requested the annual increase. Fairchild was
refused a wage increase even though it was her anniversary
date. There is no explanation for this. Similarly there is no
explanation as to why Solomon received a wage increase.
Richmond was denied a raise on her anniversary date and
was told by Franzen that she was not due for a raise until
August. When she asked again in August he became irate,
complaining of what he had to go through with Hoffman to
get raises approved. The raise was again denied. Then on the
day following the Union's demand and the filing of the
representation petition she was given the wage increase.
Baker's raise does not comply with Respondent's policy as
described by Hoffman. She received a raise in October, about
5 months after her previous raise. Allegedly this was based
of her August transfer. Clearly this increase did not
automatically go with the transfer because a performance
evaluation was required. In the circumstances, I find that
Respondent's grant of wage increases is totally discretionary
and that such grants in accordance with a well defined wage
plan are not consistently followed.
It is well established that where wage increases are
granted shortly after the filing of a representation petition,
there is a presumption of impropriety which can be rebutted
Q. The date indicated on the payroll records would be the date that the
decision was made and the order given to make a pay increase?
A. Put through.
1131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only by an affirmative showing that the granting of the
benefit was governed by factors other than the impending
election. Idaho Candy Company, 218 NLRB 352 (1975);
Schwab Foods, Inc., d/b/a Scott's IGA Foodliner, 223 NLRB
394 (1976). I find that Respondent has not sustained its
burden and that by granting wage increases to Richmond
and Baker, Respondent has violated Section 8(a)(l) of the
Act.?
E. Wall's Discharge
Jane Ball left Respondent's employ on January 22, 1979.
Thereafter she suggested to Wall that she organize a sick-in
among certain key personnel for the following Thursday to
protest Ball's leaving and to give Rose a hard time. Several
days later Wall was called into Hoffman's office. According
to Wall, only Hoffman was present. About 5 minutes later
Rose and Franzen came in. Hoffman asked Wall what the
hell she thought she was doing. Wall said she did not
understand. Hoffman said, "Don't play games, you know
damn well what I'm talking about." Hoffman further said
this had nothing to do with the Union so she could talk to
Wall any god damned way she felt, that Wall could not go to
the Union about it because it had to do with Sherwood-
Trimble, not the Union. Hoffman said she knew about the
sick-in.'4 If Wall had anything to do with it or if she called in
sick on Thursday, she would be terminated. Wall said she
had no intentions of doing that. Hoffman said she had better
not and that if anyone else was involved to tell them the
same thing. Hoffman said she was putting Wall on notice
not to have anything to do with Ball, that Ball was no longer
Wall's supervisor, and that Wall's loyalties should be to
Sherwood-Trimble. At some point in the conversation,
Hoffman asked if Ball had telephoned Wall. Wall said yes
and related the conversation.
Hoffman testified that Rose told her that Helen Lally said
some of the employees would be calling in on Thursday for a
sick-in. Hoffman questioned Lally who said her information
came from Virgie Smith. When questioned, Smith said Ball
had called Joanne Johnson. When questioned, Johnson said
that she had not called Ball, it was Wall. So she called Wall
into the office. According to Hoffman she started the
conversation, as she had with the other employees, by
saying, "I want to preface my remarks before I start talking
because what I have to say has nothing to do with the
Union." Hoffman then said she understood that Ball had
called regarding a sick-in protest of Ball's leaving. Wall said
it was true, Ball had telephoned her. Hoffman said well, I
hope you are not going to do what she asked you to do
because you know we have a moral commitment to our sick
patients and our doctors. Wall said she was not going to do
it anyway. Hoffman denies saying that Wall "could not go to
the Union" or "this is not union business" or "this does not
involve the Union" or using the word "terminate."
Rose and Franzen both testified that they were present
when Wall entered the office. Rose testified that Hoffman
said, "I want to preface my remarks by saying this has
nothing to do with the Union. I understand that Jane Ball
has called you to call in sick and to tell other women to call
" I note that even though only two increases are involved here, one was
granted to Richmond, one of the two instigators of the union activity.
in sick and I want you to know that your allegiance is not to
Jane Bll. She left on her own volition. If she hadn't
terminated herself, she would still be here. I want you to
pass the word that no one can call in sick on Thursday."
Wall said she had received a telephone call from Ball that
she should tell other employees to call in sick to show
support for Jane. Wall said she had no plans to call in sick.
Franzen's testimony in this regard is somewhat confused. In
general, he does not specifically contradict the testimony of
other witnesses except that he first testified that Wall first
denied there was such a call. Immediately thereafter he
testified that she did not deny that she had received the call
from Ball regarding a sick-in.
Two days later, on a Thursday, according to Wall, she
was called into Hoffman's office. Hoffman, Rose, and
Franzen were present. Hoffman said Ball had been in the
parking lot the previous day and asked if Wall had seen her.
Wall said she knew nothing about it. Hoffman said Wall
should have nothing to do with Ball, that if Wall was passing
information to Ball she would be terminated.
On January 30, Wall filed an unfair labor practice charge
in Case 31-CA-8695 alleging that Respondent, in violation
of Section 8(a)(l) and (3) of the Act, had discriminated
against her in her working conditions because of her union
activities." On Thursday, February 1, Wall was again called
into the office. Hoffman, Franzen, and Rose were present.
According to Wall, Hoffman asked why she filed the charge.
Wall said it was because Hoffman said she could talk to her
any "god-damned" way she felt like and it had nothing to do
with the Union in regard to the rumors of a sick-in. Wall
further said that Hoffman could not talk to her that way.
Hoffman said she did not make that statement. Wall said she
did. Hoffman said, "I certainly hope you can face me in
court and be honest, because you're dismissed." Nothing
was said to the effect that Wall had a right to refuse to
discuss the charge or to have an attorney.
Wall left the office and clocked out at or about 10:30 a.m.
About 45 minutes after she arrived at home, Hoffman
telephoned and asked why Wall had clocked out and left the
building. According to Wall, she replied that it was because
she was dismissed. Hoffman said if Wall had been fired she
would have given Wall her paycheck and told her she was
terminated. Wall said that after their previous conversation,
she took it to mean she was terminated. Hoffman asked if
Wall were returning to work. Wall said, yes, at or about 2
p.m. Then Rose got on the telephone and asked what time
Wall would return. Wall said 2 p.m. Rose asked why. Wall
said her husband was out in the car and that was the earliest
she could return. Wall returned to work at 2 p.m. and her
employment continued until February 16, when she re-
signed.
Hoffman testified that when she received the charge she
called her attorney. He said he did not know what it meant
and suggested that she ask Wall. So she called Wall in,
showed her the charge and asked, "Will you tell me what
this is all about." Wall said, "Because I just didn't like what
you said to me last week, I didn't think it was right."
Hoffman said, "You're dismissed." When Hoffman tele-
phoned Wall and Wall said she thought she had been
" She did not identify the source of her information.
" The 8(a)(3) allegation was later amended out of the charge.
1132
SHERWOOD-TRIMBLE MEDICAL BUILDING
dismissed, Hoffman's reply was, "Well, I dismissed you
from my office. I didn't dismiss you from your position. If I
was going to terminate you I would have had your check
ready and told you I'm either discharging you or terminat-
ing you from your position."
Rose testified that Hoffman told her and Franzen that she
had received the charge and did not know what to do about
it. She said she had telephoned Respondent's attorney and
he advised her to ask Wall what it was all about since they
had to reply immediately. When Wall came into the office
Hoffman asked her what the charge was about. Wall said,
"When I was in your office the other day you said you could
talk any damn way you wanted to me, and I didn't think
that was right." Hoffman said, "Is that all?" Wall said
"yes." Hoffman said, "Oh, you're dismissed." Franzen's
version of this conversation is also somewhat confused. He
seemed to be confusing the two conversations.
The General Counsel contends that Hoffman discharged
Wall because she filed one of the unfair labor practice
charges herein. The General Counsel argues that Hoffman's
intent to discharge Wall is shown by the circumstances: one,
Hoffmarn had never used the term "dismissed" to terminate
previous interviews or meetings with Wall; two, the previous
threats of discharge; three, Hoffman's demeanor of disgust;
and four, the context in which the statement was made ("I
hope you can be honest when we meet in court because
you're dismissed.") I find no merit in this argument. I find it
not unreasonable that Hoffman's attitude of disgust was
motivated by her perception of Wall's stated reason for filing
the charge as frivolous or ridiculous. I do not infer that it
was indicative of a more sinister purpose. The threat to
discharge Wall, if Wall is credited, was a very specific
threat-to discharge her if she was involved in a sick-in in
protest of the voluntary resignation of Ball.
In the previous two conversations, when the threats of
discharge were made, Hoffman used the term "terminate."
Although Wall did initially testify that Hoffman said "I
hope you can be honest when we meet in court because
you're dismissed," she later testified on cross-examination
that Hoffman had simply told her she was dismissed.
Finally, it is undisputed that as soon as Hoffman learned
that Wall had clocked out, she telephoned to inquire why
Wall said she thought she was discharged. Hoffman assured
her she only meant dismissed from the office. I also note that
when Wall first related this conversation, she testified,
"[Hoffman] said that if I had been dismissed that she would
have given me my paycheck and said that I was terminated."
Later on cross-examination Wall testified," when Hoffman
called me on the phone she told me I hadn't been fired ...
that if I had been fired or terminated that she would have
handed me my paycheck."
In these circumstances, I find that the General Counsel
has not met his burden of establishing that Wall was, in fact,
discharged. Accordingly I find that Respondent was not
discharged in violation of Section 8(a)(1) and (4) of the Act.
The complaint alleges that on January 23, Hoffman
instructed Wall not to report to the Union that Respondent
had threatened her with discharge if she participated in a
work stoppage. I do not credit Wall as to the precise
" Apparently this part-time work involved paper work regarding the Medi-
Cal, Medicare certification.
phraseology used by Hoffman. As indicated above, her
recollection as to exact words used was subject to variations,
which in this instance could be significant. I note that in
attempting to learn the source of the rumored sick-in
Hoffman spoke to three other employees. According to
Hoffman she prefaced her statement to all four employees
with the same remarks. The General Counsel did not adduce
testimony from these other employees. I find the testimony
of Hoffman and Rose, which varied slightly, but significant-
ly from that of Wall, is more consistent with the nature of
the conversation-that Hoffman explained that what she
had to say should not be interpreted as relating to the Union
or union activity. Rather, it had to do with a rumored sick-in
to protest the departure of a supervisor who voluntarily
resigned. Accordingly, I find that Respondent did not, in
violation of Section 8(a)(l) of the Act, instruct Wall not to
report to the Union that Respondent had threatened her
with discharge if she participated in a work stoppage.
I further find that Respondent violated Section 8(a)(1) of
the Act by interrogating Wall concerning the charges Wall
filed with the Board without complying with the safeguards
set forth in Johnnie's Poultry Co., 146 NLRB 770, 775
(1964).
IV. THE REPRESENTATION CASE
A. The Challenged Ballot of William Kwok
Kwok was challenged on the grounds that he was a
supervisor. Hoffman admits that Kwok was promoted to the
position of supervisor of the laboratories following the
resignation of, and upon the recommendation of, Supervisor
Ken Obata. Obata's resignation was effective as of October
17. On October 18, according to Hoffman and Kwok, Kwok
in the presence of Obata informed Hoffman that he had just
discovered a regulation in the Federal Register that the
supervisor of a laboratory must have 6 years experience in
order for the laboratory to qualify for Medicare, Medi-Cal
certification. Kwok said he did not have the requisite 6
years. Kwok credibly testified that Hoffman said she would
have to find a new supervisor and asked Obata to stay as
long as he could until they found a new supervisor. Obata
said he could only come in part time, but he would retain the
title of supervisor to facilitate the certification paperwork.
Obata later recommended Rudy Streeter as laboratory
supervisor. Streeter credibly testified that he was interviewed
and hired by Respondent on November 1. Hoffman testified
that he said he would have to give his present employer
notice, that it would probably take a couple of weeks, but
that in the meantime he would come in sporadically and
help out whenever he could in order to assist in obtaining
certification for the laboratory. According to Hoffman this
certification was very important because the new legislation
had become effective on October I and she was concerned
that Respondent might not be paid for laboratory billings.
Average monthly billings for the laboratory were $60,000 or
$70,000 of which probably $30,000 is Medi-Cal.
Streeter credibly testified that he began work on a part-
time basis immediately following his hire. '" He started full
1133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time on November 21. Kwok credibly testified that when he
told Hoffman that he could no longer be supervisor,
Hoffman said that Franzen would handle any problems in
the laboratory. Kwok also testified that when Streeter was
hired, Hoffman asked him to show Streeter the lab. Kwok
did so and also announced to the laboratory employees that
Streeter would be the new supervisor. Fairchild testified that
Kwok introduced Streeter to the employees about a week
before the election, stating that he was going to be the new
supervisor. Also a memo was circulated the week before the
election saying that Streeter was laboratory supervisor.
According to her the same type memo was circulated the
first week in November stating that Kwok was supervisor.
Rose testified that such a memo was circulated and also one
rescinding it. She did not testify as to dates.
I do not credit Fairchild as to these dates. I find it
incredible that after Streeter was hired, a memo would have
been circulated saying that Kwok was the new laboratory
supervisor without indicating that it was temporary. I find it
more likely that such a memo was circulated when Kwok
was first promoted and that Kwok introduced Streeter to the
employees on November 1. Fairchild also testified that on
the day of the election, Streeter was supervising the
laboratory and that Kwok was showing him around the
laboratory on the day before the election.
Kwok credibly testified that laboratory employees all had
certain assigned duties to perform and that during the period
between supervisors everyone just continued to do his or her
job. The only personnel problem that arose during this
period was when Kwok told a technician that some of the
doctors were complaining about his work and that one of the
doctors would like a certain report as soon as possible. The
technician said Kwok was not qualified to tell him what to
do. Kwok referred the problem to Franzen. The next day
Franzen told Kwok that the technician was no longer
employed by Respondent. Franzen testified without contra-
diction that it was his routine practice to daily visit each
department for 5 or 10 minutes during the noon hour or just
prior to the end of the workday. During the period between
supervisors he spent 30 to 45 minutes daily in the laboratory.
The parties stipulated that the payroll period for eligibility
to vote in the election was October 22, 1978. 1 find that
Kwok was employed in a nonsupervisory position prior to
October 17 and at all times after October 18. Accordingly, I
shall recommend that the challenge to his ballot be over-
ruled.
B. The Objections to the Election
The objections filed by the Union involved herein state:
Objection No. I
(I) The above-named employer has interrogated em-
ployees about their union activities;
Objection No. 2
(3) The above-named employer has threatened them
with loss of benefits if the union was successful in
organizing its employees.
Objection No. 4
(4) The above-named employer has discriminated
against employees because of their activities on behalf of
the above-named union.
Additionally involved herein is Respondent's conduct re-
garding the granting of wage increases.
I have found above that during the critical period between
September 26, 1978, the date the petition was filed, and
November 21, 1978, the date of the election, Respondent has
violated Section 8(a)(1) of the Act by interrogating employ-
ees as to how they intended to vote in the representation
election and their union activities and sympathies and those
of fellow employees; by threatening employees with loss of
wages and benefits and that Respondent would not negotiate
in good faith with the Union if the employees selected the
Union as their collective-bargaining representative; and by
granting wage increases to employees to induce them to
withdraw or withhold their support from the Union. I have
also found that Respondent violated Section 8(aX)(3) and (1)
of the Act by imposing more onerous and rigorous terms
and conditions upon Kaiser in order to discourage her
support of the Union. I further find that such conduct also
interfered with the employees' exercise of a free and
untrammeled choice in the election held on November 21,
1978. Accordingly, I shall recommend that the said election
be set aside and that a new election be held at such time as
the Regional Director deems appropriate.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating employees as to how they
intend to vote in the representation election and as to their
union activities and sympathies and those of fellow employ-
ees; by threatening employees that it will not engage in good
faith negotiations with the Union if the employees selected
the Union as their collective-bargaining representative; by
threatening employees that if they selected the Union as
their collective-bargaining representative, their wages and
benefits would be frozen throughout a period of protracted
negotiations; by interrogating an employee, without the
proper safeguards, concerning a charge she filed with the
Board; and by granting employees wage increases to induce
them to withdraw or withhold their support from the Union
Respondent has interfered with, restrained, and coerced its
employees in the exercise of their rights under Section 7 of
the Act and has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By imposing more onerous and rigorous terms and
conditions of employment on its employees in order to
discourage their support of the Union, Respondent had
engaged in unfair labor practices in violation of Section
8(aX3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
1134
SHERWOOD-TRIMBLE MEDICAL BUILDING
6. Respondent has not violated Section 8(a)(1) of the Act
as alleged in subparagraph 6(c) of the consolidated amended
complaint herein.
7. Respondent has not violated Section 8(a)(1) and (4) of
the complaint as alleged in paragraphs 14 and 15 of the
consolidated amended complaint herein.
8. At all times material herein, prior to October 17, 1978
and after October 18, 1978, William Kwok has not been a
supervisor within the meaning of Section 2(11) of the Act.
9. By its preelection conduct, as set forth above in
paragraphs 3 and 4 and described more fully in the
subsection herein entitled objections to the election, Respon-
dent has interfered with its employees' freedom of choice in
selecting a bargaining representative, and such conduct
warrants setting aside the election conducted on November
21, 1978 in Case 31-RC-4287.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record and pursuant
to Section 10(c) of the Act, I hereby recommend the
following:
ORDER"
The Respondent, Sherwood-Trimble Medical Building,
Los Angeles, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees as to how they
intend to vote in the representation election and as to their
union sympathies and those of fellow employees.
(b) Coercively interrogating employees as to unfair labor
practice charges filed with the Board.
(c) Threatening employees that it will not engage in good
faith negotiations with the Union if they select the Union as
their collective-bargaining representative.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusion 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 conclusons, and Order, and all objections thereto shall be deemed
waived for all purposes.
(d) Threatening employees that if they select the Union as
their collective-bargaining representative, their wages and
benefits will be frozen throughout a period of protracted
negotiations.
(e) Granting employees wage increases in order to induce
them to withdraw or withhold their support from the Union.
(f) Imposing more onerous and rigorous terms and
conditions of employment on its employees in order to
discourage their support of the Union.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its facility in Los Angeles, California, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's autho-
rized representative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 31, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of Section 8(a)(4) of the Act,
and of Section 8(a)(1) of the Act other than as specifically
found herein.
It is recommended that Objections 1, 3, and 4 be
sustained. I further recommend that the grant of wage
increases found herein is objectionable conduct sufficient to
warrant the setting aside of the election. Accordingly I
recommend that the election held on November 21, 1978, be
set aside and a second election by secret ballots be conducted
at such time and manner as the Regional Director deems
appropriate, and in view thereof, I shall not recommend that
the ballot of William Kwok be opened and counted.
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1135