South Hills Health System

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 69 (N.L.R.B. 1979)

SOUTH HILLS HEALTH SYSTEM 69
South Hills Health System and United Steelworkers
of America AFL-CIO-CLC. Cases 6-CA-10308-2.
6-RC-7760, and 6-RC-7761
January 24, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS. MIURPHY. AND TRt:ESDAL
On September 27, 1978, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent and the
Charging Party filed exceptions and supporting
briefs and the General Counsel fild an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, South Hills Health Sys-
tem, Jefferson Borough, Pennsylvania, its officers.
agents, successors, and assigns, shall take the action
set forth in the recommended Order except that the
attached notice is substituted for that of the Admin-
istrative Law Judge.
IT IS FURTHER ORDERED that the elections held in
Cases 6-RC-7760 and 6-RC-7761 be, and they'
hereby are, set aside, and that Cases 6-RC 7760 and
6-RC-7761 be, and they hereby are, remanded to the
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established pollcy not to o,er-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Productsr Inc. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2The Administrative Law Judge neglected to include in his notice the
narrow cease-and desist paragraph of his recommended Order The notice is
corrected accordingly. Since we are setting aside the election on other
grounds we find it unnecessary to pass on Objections 8 and 10. In adopting
the recommended Order. Member Jenkins does not adopt the Administra-
tive Law Judge's gratuitous comment concerning the requirements for is-
suance of a bargaining order
240 NLRB No. 4
Regional Director for Region 6 for the purpose of
scheduling new elections at such time as he deems
appropriate.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
Nolice To EMPL.OYES
POSTED BY ORDER OF rHE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportu-
nity to present evidence and arguments, the National
Labor Relations Board has found that we violated
the National Labor Relations Act, as amended, and
has ordered us to post this notice. We intend to abide
by the following:
The National Labor Relations Act gives all our
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of your own choosing
To act together for collective bargaining or
other mutual aid or proection
To refrain from any or all of these things.
WE WILL NOT violate these rights of yours.
WE WILL NOT question you, in violation of the
Act, about your or other employees' union
views, sympathies, activities, voting intentions,
or exercise of any right under the National La-
bor Relations Act.
WE WILL NOT willfully create the justifiable im-
pression on your part that your union or other
activities, protected under the National Labor
Relations Act, are being spied upon by us or are
under our improper surveillance in violation of
the Act.
WE WILL NOT threaten any employee with the
loss, cancellation, or withdrawal of any job-re-
lated benefit, or with adverse change in job sta-
tus, or that negotiation with a union would be
based on withdrawal or cancellation of employ-
ees' existing job-related benefit, or threaten any
other reprisal, because of union affiliation, sup-
port, or voting, or in case of unionization.
WE WILL NOT change or advance the effective
date of an)' job promotions or wage increases, or
make any announcements about the same, so as
to be timed shortly before any NLRB election or
to interfere with, restrain, or coerce you in free
choice of union representative or otherwise in
SOUTH HILLS HEALTH SYSTEM 9
.._ _ _ _ ., .
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
your free exercise of your right to bargain collec-
tively or any other right under the National La-
bor Relations Act.
WE Wl 1. Nor in any like or related manner
interfere with, restrain, or coerce you in the ex-
ercise of your rights protected by the Act.
7he elections held on April 21, 1977 hby the National
Lbhor Relations Board havle been set aside and their
results voided because of our conduct afJecting the out-
comes of those elections, as found hb' the Board, durring
the period preceding the holding of those elections. In
due time other elections will be held, and 1you will be
notified of the date, time, and place.
All of our employees are free to join or not to join.
to be active or not to be active on behalf of. or to
vote for or not to vote for United Steelworkers of
America, AFL-CIO CLC, or other labor organiza-
tion of their choice, as they see fit, without interfer-
ence, restraint, or coercion from us.
Soi ii H ills. HEAtI li SYSr EM
DECISION
PRELIMINARY SFAIEMEN1; ISSUES
SlANI.EY N. O LAUM., Administrative Law Judge: This
consolidated proceeding' under the National Labor Rela-
tions Act, as amended, 29 U.S.C. § 15 1, et seq., herein called
the Act, was heard before me in Pittsburgh, Pennsylvania,
on December 6-9, 1977, with all parties participating
throughout by counsel or other representative and given
full opportunity to present evidence, arguments, proposed
findings and conclusions, and briefs. Post-trial briefs, filed
by all parties after unopposed extension of time on applica-
tion of counsel for the General Counsel, were received by
January 26, 1978. Record and briefs have been carefully
considered.
The principal issues presented are whether, in violation
of Section 8(a)(1) of the Act, during the interval preceding
a Board-conducted union representation election, Respon-
dent engaged in coercive interrogation and surveillance rel-
ative to employees' protected concerted activities, threat-
ened loss of economic benefits in the event of unionization,
and advanced and timed the announcement of a pay in-
crease just before the election in order to discourage union
Case 6 ('A 10308 2: (ompl;lint issued August 31. 1977. growing out of
charge filed June 15. Cases 6-RC 7760 and 6 R( 7761 (involving two sep-
arate appropriate units. viz 6 RC 7760 "technicians and technical emii-
ployees," and 6 R( 7761 "servsice and maintenance employees": Upon the
basis of the parties' Stipulations for certification Upon ('onsent Election
approved by the Board's Regional l)irector on March 22. a Board-super-
vised statutory representation election was held on April 21 1977. in each
unit, resulting in clear majorities (in each unit) against representation bh the
petitioning Union. On April 26 the LUnion filed imely ohbjections to erl-
ployer conduct allegedly affecting the election outcome. On August 31, the
Regional Director by two separate orders consolidated those objections anid
the three foregoing cases. and transferred the R(' cases to the Board ipoll
the coming in of the administrative law judge's decision
Unless otherwise specified. dates are 1977 throughout
adherence and voting. The union objections to the ensuing
election, also here for resolution by consolidation (fn. 1,
supra), cover these as well as other issues, as will be shown.
Upon the entire record and m observation of the testi-
monial demeanor of the witnesses, I make the following:
FINDINGS NI) CO N(CLU'SIONS
I RISDI(I ION
At all material times. Respondent has been and is a
Pennsylvania nonprofit corporation engaged in operation
of a health care system, with principal office in Jefferson
Borough, Pennsylvania. Included in Respondent's said or-
ganization are its health care facilities known as St. Joseph
Center and Homestead Center located in Homestead,
Pennsylvania. which Respondent has not operated as hos-
pitals since on or about May 18, 1977. During the 12-
month period immediately antedating issuance of the com-
plaint, a representative period, Respondent's gross reve-
nues exceeded $250,000 and it also received directly in
interstate commerce from places outside of Pennsylvania,
for use within Pennsylvania, goods valued at over $50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2)., (6).
and (7) of the Act, and that at all of those times the Charg-
ing Party-Petitioner Union has been and is a labor organi-
zation as defined in Section 2(5) of the Act.
11 411N (;t'I) NFAIR I ABOR PRA( II (CS
A. Background
Respondent operates a health care system in and around
Pittsburgh, Pennsylvania, known as South Hills Health
System, with 18 satellite locations involving mental health
and home care units. The system includes or included two
facilities, central to this proceeding, denominated St. Jo-
seph Center (at 2116 E. Carson Street. Pittsburgh) and
Homestead Center (at 1800 West Street, Homestead). After
union organizing activity commencing in October 1976, on
February 17 (1977) the Charging Party-Petitioner Union
filed with the Board's Pittsburgh Regional Director peti-
tions seeking certification as the collective-bargaining rep-
resentative of two separate units - 1) technicians and other
technical employees and (2) service and maintenance em-
ployees. totaling over 850 of Respondent's 1500 employ-
ees. 2
Respondent is alleged to have engaged in a variety of
unfair labor practices in violation of Section 8(a)( 1) of the
Act during the interval while awaiting the Board-super-
vised statutory representation elections held, simulta-
neously in each unit, on April 21. These will be considered
chronologically to recreate the facts shown, to the extent
feasible, in the order in which they developed.
See fn) 1. uprr. a nd Regilnal l)irecto r's August 31 order directing hear-
iiig on oIbjections
SOUTH HILLS HEALTH SYSTEM 71
B. Februarn
As indicated, the Charging Party-Petitioner Union filed
its petition seeking certification on February 17.
Rosso
It is initially alleged (complaint, pars. 6(a) and (hb)) that.
during February and March at Homestead Center, Re-
spondent through Florence Rosso, its supervisor of central
service and central processing, in violation of the Act inter-
rogated employees and threatened loss of economic bene-
fits in the event of unionization. Inasmuch as these allega-
tions were withdrawn by the General Counsel at the
hearing, they need not here be considered and they will be
dismissed for failure of proof.
C. March -April
Jones v. Lally
It is alleged (complaint, par. 6(a)) that in March.
Respondent's Head Nurse Elaine Lally--whose superviso-
ry status, although denied in the answer, was conceded at
the hearing--interrogated an employee in violation of Sec-
tion 8(a)(1). Concerning this, Respondent's former unit
clerk Charlotte Jones, active since the fall of 1976 on be-
half of the Union, testified that she left Respondent's em-
ploy because she could not rotate shifts as required by Re-
spondent, due to a personal problem: and that she filed but
later withdrew a Labor Board charge against Respondent
relating thereto, but she denies any residual rancor or bit-
terness. She testified that on a number of occasions while
at work during March and April her superior, Head Nurse
Elaine Lally, asked her how she felt about the Union and
what it could do for her-without informing her that she
was at liberty not to respond. Jones claims she merely an-
swered, "Security," without more.3
Head Nurse Lally testified credibly that she is unable to
recall any conversation with Jones concerning the latter's
union views, which were unconcealed, visible, and well
known. She flatly disputes any conversation with Jones of
the nature described (seeking to elicit what those union
views were).
While not unfavorably impressed with the testimonial
demeanor of Jones, I was also favorably impressed with
that of Lally, and I would have no rational basis for prefer-
ring one over the other. Moreover. concededly Jones' pro-
union proclivities and activities were well known making it
questionable that occasion existed for Lally--a wide-
awake and knowledgeable person, in my estimation --to
question her thereon. Furthermore. I received the impres-
Jones also testified that, prior to going on shift on April 18. L.all hand-
ed her some antiunion literature. which Jones declined to accept. and re-
marked that employees should weigh both sides and that she Liall?) felt the
employees did not need a union. Jones ndicated she did not want to discus,
the matter. It s assumed that this episode relates to the April 1977 incident
involving alls referred to in complaint par 61a). Since I cannot regard this
episode, even crediting Jones' version as escribed, s constituting imper-
missible interrogation or other action offensiSe to the Acl. I do not find this
complaint allegat ion sustained
sion that Jones appears to harbor a degree of simmering
resentment against Respondent, perhaps stemming from
the circumstances surrounding her involuntary resignation.
Under the circumstances, since I am unable to discern that
the weight of the General Counsel's proof fairly preponder-
ates over that of Respondent, I find that the General
Counsel has not in this regard met the burden of proof and
persuasion which is his, and that this allegation of the com-
plaint has not been established. Cf. Consolidated Edison Co.
of New York, Inc. v. N.L.R.B., 305 U.S. 197, 230 (1938);
Beaird- Poulan Division, Emerson Electric ('ompanv, 233
NLRB 736 (1977); AAA Lapco, Inc.. 197 NLRB 274
(1972): Blue Flash Express, Inc., 109 NLRB 591, 592
(1954).
Kondratenko v. Aubele
The complaint (par. 6(a)) alleges that, at St. Joseph Cen-
ter in March, Respondent interrogated an employee, in vi-
olation of the Act, through its former head nurse.4 Joanne
Aubele. The employee in question is its nursing assistant
Tanya Kondratenko, who, now employed at Respondent's
Jefferson Center facility (Coal Valley Road. Clairton.
Pennsylvania). was assigned to St. Joseph Center under
Head Nurse Aubele at the time here in question.
According to Kondratenko, while she was making a bed
in a patient's room one morning in March with her super-
visor, Aubele, the latter questioned her why she was inter-
ested in a union. To Kondratenko's answer that it was for
job security, Aubele responded something on the order
that "I don't think that Unions are the answer. My hus-
band had a bad experience with the Union where he
works." Kondratenko's testimony is clear that Head Nurse
Aubele initiated the conversation.
Aubele's only testimonial yield regarding the foregoing
is that she is unable to "remember" the conversation.
I was generally favorably impressed with the testimonial
demeanor of Kondratenko. who testified with a persuasive
and unshakeable openness concerning the described con-
versation, which I do not believe she fabricated. In view of
my comparative testimonial demeanor observations,
Kondratenko's superior recollective powers and the fact
that Kondratenko testified at a degree of economic haz-
ard.5 I credit Kondratenko and find that the described inci-
dent of supervisory interrogation without reassurance of
any kind that such managerial inquiries need not be an-
swered by subordinates, did in fact occur.
Sauer v. Davis
The complaint (par. 6(b)) further alleges that, at its St.
Joseph Center in March, Respondent's supervisor 6 Chief
4 As in the case of Head Nurse Lally, Aubele's supervisorN capacilt. de-
nied in Respondent's answer, was conceded at the heanng. At the time of
the hearing (and for 2 months prior thereto). Aubele was a staff nurse, after
5 ears as head nurse.
We have been instructed that currenllI emplohed witnesses, targeting
themselves for employer reprisal for their adverse testimony. earn an extra
credibilit' mark. Cf. GCoris Rug Mill. 131 NLRB 13()4. 1305. fn. 2 (1961).
enfd in relevant part 308 F.2d 89 (5th Clr. 1962): i'rtz . B A (' Seel
Produtais, In . 312 2d 14. 16 (4th ('lr. 19621
Notw lthsitanding Rspondent's denial in Its answer, I find the supersiso-
SOUTH HILLS HEALTH SYSTEM '
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Switchboard Operator Jean Davis, threatened employees
with loss of economic benefits if they selected the Union as
their bargaining representative.
Concerning this, Respondent's rank-and-file telephone
operator Donna Sauer, in its employ for 6 years,7 testified
that while at a work scheduling meeting in the office of
Respondent's director of house services, Donald Gwillim,
in the forepart of March, Davis remarked-in response to
a question by Sauer about weekend scheduling-that she
did not know whether she should "mention" this but that,
under a union, employees "sometimes ... have to wait up
until six months to have two weekend days off together."
Davis disputes that she made the remark attributed to
her by Sauer and professes not to be able to "recall" saying
anything about a union. s
While, on comparative testimonial demeanor observa-
tions as well as for other reason (fn. 8, supra), I credit
Sauer's described testimony, I am unable to regard Davis'
indicated remark as an economic "threat" violative of the
Act since I view it as hardly more than a passing observa-
tion or opinion by a relatively low-grade supervisor, neither
intended as nor rising to the level of a restrainful or coer-
cive threat beyond the pale of the protection of Section 8(c)
of the Act. It is accordingly found that the complaint alle-
gation in question has not been established.
ry status of Davis, at the times here material. amply established through the
testimony of Davis herself, who conceded that her job responsibilities in
March included making up job descriptions for Respondent's 12 or 13
switchboard operator staff, as well as scheduling their hours and time off.
independently in her own discretion granting them time off, interviewing
and making recommendations to the personnel department for their hire
which would "invariably" be followed, warning (e.g., for tardiness) them in
regard to work lapses or her directions evaluating their performance and
signing written performance evaluations concerning them, and making rec-
ommendations for their discipline or discharge which carried weight (and.
indeed, appeared to he followed without indicated exception). Davis' own
performance appraisals by her superiors describe or refer to her or her
duties as "Supervisor" (G.C. Exh. 21. Feb. 12. 1973): "Chief Tele. Opera-
tor," "She recently was promoted to a grade 3 superisors position over her
co-workers grade 2 ...land isl a 'new' supervisor . land] has risen to
the challenge extremely well" (GC'. Exh. 15, 772 7/73. signed by Davis on
August 16. 1973 with the comment "I agree with "Chief PBX Operator . .
Employee is most outstanding in independent supervision of Dept. employ-
ees, record keeping and attention to detail" ((;.C. Exh. 16. 773 7 74):
"exceptional in all aspects of her job,. She is qualified to perform anx super-
visory position in a nonprofessional field" (.(. Exh. 17. 7 1/74 7 1,/75):
"Employee is most outstanding in her supervising and leadership of the
group. She is an excellent manager" (G.C. Exh. 18, 10,18, 75 76); "Switch-
board Supervisor" (/11/76 3/1/77), promoted to "(ommunications Sup-
ervisor" (3/1 '77) (G.C. Exh 14\; and "promotion." "job title change" and
"salary rate change," effective March . 1977. from "(hief Switchboard
Operator . . .Grade 3 Step 3" to "('ommunication Supervisor . . rade
5 Step 3 . . Approved effective date 3 1/77" (D. Exh. 13). Davis also
testified that she was informed by her Employer that she was ineligible to
vote in the Board election because of her job status (i.e., presumably super-
visory). Called as Petitioner Union's witness. Respondent's assistant execu-
tive director, Robert Horn, conceded that on its Ecelsior list listing its
switchboard operators (C.P. Exh. I), D)avis' name was not included because
of her supervisory status. The foregoing clearly establishes D)avis' superviso-
ry status within the statutory definition (Act. Sec. 2(1 1)., and I so find.
See fn. 5, supra.
At the hearing, Davis conceded that in her pretrial affidavit unlike her
testimony at the hearing she swore there was no discussion in regard to
weekend scheduling. On later questioning by Respondent's counsel. how-
ever, Dasis said the question of scheduling did come up "informally. after
the meeting." but without mention of the Union.
Barlai-Kovach, Adams and Rovner v. Gross
The complaint (par. 6(c)) further alleges that on or about
March 17 and 18, and perhaps at other times in March, as
well as in April, at its Homestead Center facility Respon-
dent, through its supervisor, Barbara Gross (chief nuclear
medicine technologist), created the impression-in viola-
tion of Section 8(a)()-that the union activities of employ-
ees were under surveillance.
Respondent's present or former nuclear medicine staff
technologists Martha Barlai-Kovach and Claudia Rovner,
and its nuclear medicine assistant, Catherine Adams, testi-
fied in support of this allegation.
According to Respondent's former nuclear medicine
staff technologist, Martha Barlai-Kovach, on at least a
dozen occasions during March and April in the Homestead
Center nuclear medicine laboratory her superior, Gross,
importuned her and her fellow-employees Adams and
Rovner concerning the attendance and subjects discussed
at union meetings, and the projected dates of future meet-
ings, adding, "Why don't you tell me, I know you are all
Union people," and indicating that unionization would
cost the employees existing "benefits" and bring "re-
strictions"; and, further, that she would tell her staff "in
the strictest confidence" that they would not be permitted
to vote in the upcoming election since "the Union sold
[Adams, a nuclear medicine "assistant"] out, and that the
hospital knew what they were doing when they traded her
yes vote and made her ineligible ... "
Respondent's nuclear medicine assistant, Catherine Ad-
ams, testified that while at work in the Homestead Center
nuclear medicine laboratory on March 17 she was ap-
proached by her supervisor, Gross, who informed her that
she would disclose to her something "top secret and confi-
dential . . . no one in [my] department [is] eligible to vote
in the forthcoming election in April." When Adams pro-
tested that she was not a "professional" (and thus eligible
to vote), Gross explained that an electrocardiographic sup-
ervisor had been made "eligible" because she was known
to be a "no vote," whereas Adams had been ruled out as
"ineligible to vote" because she (Adams) as well as other
nuclear medicine technicians were known to be "yes votes"
since the "Administration knew that [my-i.e., Gross's nu-
clear medicine] department [is] a hundred percent Union."
Gross added that the Union had "sold [your-i.e., Adams']
vote down the river." Later that day, as well as almost
nightly until the Board-conducted election on April 21,
Gross telephoned Adams at home and badgered her about
the union meetings, when they were scheduled to be held,
and "how [they were] going." Adams insists that at no time
did she initiate a conversation with Gross on the subject of
the Union.
Respondent's nuclear medicine staff technologist, Clau-
dia Rovner, testified in similar vein to numerous inquisitive
importunings in March and April by Supervisor Gross on
the subject of union activities and meetings, coupled with
explicit, professedly knowledgeable remarks to her and her
colleagues Barlai-Kovach and Adams that "you [are] all so
pro-union," which she had allegedly learned at a superviso-
ry meeting the previous day; Gross at the same time add-
ing that management knew which employees were for the
SOUTH HILLS HEALTH SYSTEM 73
Union and had for that reason made "not ineligible" thenuclear medicine department personnel to vote in the up-coming Board election. Rovner likewise insists that it was
Gross who initiated all of these conversations, and that
Gross persisted in repeating them even though Rovner had
asked her to desist.
Concerning the foregoing, Barbara Gross concedes that
she informed Adams on March 17, following a supervisory
meeting on the subject of voting eligibility in the upcoming
Board-supervised election, that Adams could not vote be-
cause the entire nuclear medicine department was excluded
from the bargaining unit. While Gross concedes she didindeed telephone Adams during that evening, Gross pro-
fesses to be unable to recall the conversation with any de-
gree of precision. As for the bulk fo the aforedescribed
testimony of Barlai-Kovach. Adams, and Rovner, it stands
essentially undisputed by Gross.
I was extremely favorably impressed by the testimonial
demeanor of Respondent's nuclear medicine technologists
and assistant, who testified with factual precision, direct-
ness, and openness. As indicated, their testimony waslargely unchallenged by Gross. Crediting the described tes-timony of Barlai-Kovach, Adams, and Rovner, including
their accounts of Gross's repeated allusions to her andRespondent's professed or vaunted familiarity with these
employees' union views and activities, unmistakably con-
veying the impression that those activities were under sur-veillance, I cannot avoid the impression that Gross repeat-
edly and continuingly conveyed this message to these
employees in what appears to have been an excess of zealprompted by perhaps misdirected loyalty on her part to-ward her Employer, in a situation where she would havebeen far better advised to stay out of, remain silent, not
interfere, and not create an atmosphere potentially stifling
to employees' exercise of rights protected under the Actthrough fear of reprisal because their pursuit of those rights
was being closely surveilled by their Employer and identi-
ties being chalked up for future reference, thus chilling the
attempted exercise of those rights.
Upon the proof presented, within the context of the case
as a whole, it is found that the complaint allegation inquestion has been established by a fair preponderance of
credible substantial evidence. 9
On March 22, the Board's Regional Director approved
the parties' March 16 Stipulation for Certification Upon
Consent Election, setting the stage for the Board-super-
vised statutory election thereby stipulated to be held on
I do not regard it as an answer to the complaint allegation in questionthat the employees' supposed union sympathies were assumedly known toor guessed at by their employer because of its possible knowledge (in somefashion perhaps independently acquired) of their possible attendance at aunion meeting or meetings or through other activity seemingly indicative ofunion adherence or leaning on their part. (Cf . e.g. N .I R.B v. Ribold Heat-er Company. 408 F.2d 888, 891 (6 Cir. 1969): N.L.R. R B v. Stinplpe 7imeRecorder (Compant. 401 F 2d 547. 549 (1sl Cir. 1968): Inrertpp e Compoa n v.N.L.R.B., 371 F.2d 787 (4th ( (r. 1967): ... R.B v. Prince Macaroni Manu-facturing Co. 329 F.2d 803. 804 806 ( Ist Cir. 1964): Hendrix M anufacturing
(ompanv. Inc. v. 1. R RB. 321 F.2d 100. 104- 105 (5th Cir. 1963); Dresser
Industries, Inc., 231 NLRB 591 (1977); Central Dispatch Inc.., 229 NLRB 979
(1977: (Coosa Valler Convalescent Center. 224 NLRB 1288 (1976): Mfer-
chants Deliver Service. Inc., 219 NLRB 1220 (1975).
April 21 at no less than 13 different locations (G.C. Exhs.
2(a)-(d)).
Kish
The complaint (par. 6(b)) alleges that, in late March or
early April, at its Homestead Center. Respondent, through
its director of medical records, Veronica Kish, threatened
employees with loss of economic benefits in the event of
unionization.
Inasmuch as this allegation was withdrawn the the hear-
ing, it need not be considered and will be dismissed for
failure of proof.
Michaels, Quantz, Barlai-Kovach, Adams, Fabian, Jones,
Sauer, and Kondratenko v. Yeckel. Trust, Handmaker
and Horn
The complaint (Pars. 6(b) and (e)) further alleges that
Respondent, through its chief executive officer, George
Yeckel, on various occasions from March 28 through April
1, at both its Homestead Center and St. Joseph Center,
voiced threats to employees, in violation of Section 8(a)( ).to the effect that if they selected the Union as their collec-
tive-bargaining representative job-related benefits would
be lost by employees and would "start from zero" in nego-
tiations (March 28 and April I at Homestead Center and
March 29 and 31 at St. Joseph Center: complaint paras.
6(b) and (e)). The parties stipulated at the hearing thatYeckel held meetings with and addressed employees at the
alleged places and times. It is the content and context ofYeckel's remarks to these large groups, seemingly generally
exceeding 100 employees, which are in issue here.
March 28 at Homestead Center
Respondent's chief executive officer, George Yeckel, ad-
dressed an employee assemblage at the Homestead Center
on March 28 from about 1:30 to 3 p.m., delivering a longspeech and answering many questions (Resp. Exh. 2 tape
recording, inaudible in parts; ALJ's Exh. , stipulated tran-
script thereof).''
According to Respondent's own version of its tape rec-
ording (ALU Exh. ), in the course of his lengthy speech
describing an upcoming move or partial relocation of facil-ities from Homestead and St. Joseph Centers to its proj-
ected Jefferson Center, Yeckel included the following ob-
servations and remarks (from ALJ Exh. I, emphasis
supplied):
(I) He voiced his and Respondent's opinion that a
"third party, between the employees and the hospital,
is unnecessary and undesirable."]}
(2) "f I were voting. . .I would vote, no."
m Provided b counsel subsequent to the hearing, at rm request at thehearing, and hereh) incorporated into record, with forwarding correspon-
dence. as ALJ Exh .
H While I regard this and various other expressions of Yeckel as unobjec-tionable in themselves, all must be weighed and evaluated together in thefair cross-fertilized contex t of his other remarks to this employee audiencelas well as in the frame of reference of the record), in order to determine
whether the talk as a whole as well as in certain portions, segments. andaspects considered in light of the Board's industrial relations experience and
Continued
SOUTH HILLS HEALTH SYSTEM
--
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) He fairly described the union organizing process.
(4) He urged employees to vote, stating that he was
not "telling you how to vote."
(5) He told employees that, in case of unionization:
"Contract negotiations will start, or would start typicalv
from zero. You do not start with what you've got now."
(6) "I'm saying in my opinion, I don't think we need
a union, and therefore, I hope we don't get one."
(7) Union card signers would not lose their jobs
even if the Union did not win the election.
(8) Employees have the right "to be active in orga-
nizing a union."
(9) Employees have the right to oppose the Union
and to persuade other employees to do so.
At this possibly critical point in Yeckel's remarks, the
"tape" ran out before being turned over, and a question-
answer period soon ensued, including the following an-
swers, observations, and remarks by Yeckel:
(10) In the event of unionization, the maintenance,
continued existence, or level of benefits would depend
upon any contract which would have to be negotiated.
(I1) (From the floor) We get two personal holidays
a year, will we lose that?
Mr. Yeckel: Not if you don't have a Union. (Laugh-
ter and applause.)
I don't know, because again, that would be an item
for contract negotiations. Strike that last remark.
(12) (From the floor) When the .... (inaudible)
.... you start from zero, we start from zero?
MR. YECKEL: Yes.
(From the Floor) We understand .... (inaudible.)
MR. YFCKEI.: That's not the way it is happening else-
where.
(From the floor) You stay with .... (inaudible.)
MR. YECKEL: No, that's not true.
(From the Floor) . . . . (inaudible.)
MR. YECKEL: Not true.
(From the Floor) .... (Inaudible.)
MR. YECKIL: From the NLRB.
(From the floor) ... . (inaudible.)
MR. YECK[I.: Negotiations do not start with what you'-
ve got and work on top of that.
Union negotiations on a contract is completely sep-
arate of anything that has gone on before in a hospital.
I'm only expressing what has happened in every institu-
tion that has become unionized, every hospital and what
the NLRB has told our people.
(From the floor) .... (inaudible) .... and al-
ready getting it, they can't take it away, that's correct?
MR. YECKEL: My understanding is that you start fresh
with a clean slate, when ou are negotiating a contract.
(From the floor) That's not true.
MR. YE(KEI.: Well, we'll find out from . .. ou, di-
rectly from the horse's mouth and let you know.
(From the floor) .... (inaudible) the election?
MR. YECKEL: Tomorrow.
expertise, was restraintful and coerci e In its ipact on the particulal eli-
ploees. See discussion and cases cited //ril.
(From the floor) Tomorrow?
MR YE(CKEL: Yes.
(from the floor) Excuse me, Mr. Yeckel .. .. (inau-
dible) voting for the union or against the union?
MR YECKEL: That's right."
(13) MR YECKi-.: Whether you would have to join a
union, would be determined by whether we had a
closed or open shop.
That's a matter of the contract negotiations. It is
possible that if it was part of the contract, if it was a
closed shop, then you would have to join the Union. If
you did not join the Union, you would be fired.... If
the Hospital has to agree with the Union, that it be a
closed shop ... . If they insist on that, as an item in
the contract, and we sign the contract, that's there and
they have that right .... My opinion is that it would
be better not to be put in that position.
(From the floor) What knowledge has the Labor
Relations Board to qualify them to classify us profes-
sionals or non-professionals?
MR. YLKtEL: The law, and that isn't always logical
dear, it's the law.
(14) Whenever you are in a Union, you always have
the possibility of going on strike . . . if the Union
won, and we went into contract negotiations, and we
couldn't arrive at a contract, then it is possible there
would be a strike.
Portions of an ensuing discussion regarding layoffs un-
der unionization another subject usually of critical im-
portance to employees are also concededly inaudible on
the tape. There followed these additional remarks and ob-
servations by Yeckel:
(15) . . . when things are wrong, as they are on oc-
casion, as we have just heard, they should be correct-
ed. And it is my intention certainly, that they should
be .... I can't do it all overnight .. . because we are
all human, but I think we can work at it, constantly,
together, and get the job done. I personally do not feel
that we need somebody from outside the institution,
forcing us to sit down and talk with each other.... l
used to be a psychologist in practice, and most of my
time was spent in listening, so it's not boring to me, I
enjoy listening and talking with people . ... We con-
stantly are reviewing the benefits, as has gone on for a
long time, and as we are able to financially, we add
benefits., and the insurance coverage is one of the things
we are looking at, because it does have some gaps in it, I
understand, I'm not really too familiar with it yet
.... It's a very ticklish business .... but to the
degree we can, we are trying to upgrade those benefits as
we have for each ear in the past, and w'ill continue to do
the same thing.... I enjoy being able to meet with
you as a group, like this, because there's nothing in
between us now.... I like the grievance procedure
.... and I want the people to use the grievance pro-
cedure.
Yeckel concluded his presentation with:
(16) We will have another meeting on Fridav, for those
who missed this meeting, I will essentially repeat what
SOUTH HILLS HEALTH SYSTEM 75
I've said. If you want to come again, you are free to do
so, it will he at 2:30, instead of 1:30.
There is, first, the question of whether the tape of
Yeckel's March 28 speeck is complete and accurate. As tothis, there is no need to review or make factual determina-
tions concerning the detailed testimony of Respondent's
witnesses (Yeckel, Trust, Handmaker, and Horn) concern-
ing the operation of the cassette recorder and the custody
of the tape. 2 in view of Yeckel's express, candid conces-
sions at the hearing- in accord with the facts that the
tape is "not a totally audible reproduction." This leaves in
doubt and open for determination at least those portions of
the tape which are inaudible, it being thus conceded by
Yeckel himself that the tape recording so far as audible
and transcribed does not contitute, even in his view, the to-
talit) of his remarks.
Yeckel also concedes that, in connection with his negoti-
ation "from zero" remarks which he made to his March 28
Homestead Center audience, he made no accompanying or
other explanation or statement to the employees that pend-
ing the outcome of negotiations their existing salary levels.
benefits, and other terms and conditions of employment
would remain the same. Further according to Yeckel, after
reviewing his March 28 speech with Respondent's assistant
executive director, Robert Horn, who has complete respon-
sibility for all of Respondent's personnel relations, he and
Horn decided to avoid and eliminate in all further talks by
Yeckel any reference to "startling] from zero." to avoid
conveying to employees the impression that they wouldlose anything in case of unionization. Yeckel also con-
cedes, however, that he did not reassemble the March 28
assemblage of employees to dispel any misunderstanding
his quoted remarks may have caused, or do anything else
to disabuse them of what he and Horn thus apparently
themselves believed might be the indicated construction
employees might attach to those remarks.
Credited testimony of the General Counsel's witnesses
Quantz. Barlai-Kovach Adams. and Jones, who were pres-
ent during Yeckel's March 28 remarks at Homestead Cen-
ter, supplies-without contradiction-some of the conced-
edly inaudible gaps in the taped recording thereof. and also
affords a clue as to the not unexpectedly pointed impact of
Yeckel's remarks and observations concerning the effect
unionization would have on employees' economic bene-
fits--clear and direct to all employees. Thus, Respondent's
X-ray technician Ann Quantz, in its employ for some 6
years,"t emphasized credibly and without contradiction
that on the occasion in question Yeckel spoke of the ab-
1 Were it necessars. in his aspec.t, I would entertain grae dubts in an?event as to the completeness (as well as audiblilt, ) of the tape recording inquestion. According to Respondent's personnel assistant. Shirley I rust, thiswas the first occasion on which she had ever attempted to operate a cassette
recorder and she was not generall familiar with such a mechanism. Theequivocating and evasive testimony f Yeckel's executive secretary. Arlene
landmaker. must be regarded as largely unworthy of elief since she insist-ed she "transcribed" the tape in the face of the obvious fact that her "tran-scription" (Resp. Exh. 3. not even offered in evidence) was not a transcrip-
tion at all. but only her supposed "summarr." Handmaker conceded thatthe recorder, as well as her own and Yeckel's dictating machine, are equip-
ped with erasure buttons.
See fn. 5. upra.
sence of employees' need for a third party (i.e., union) in
the picture since employees' problems could be worked out
directly (i.e., without collective bargaining) with Respon-
dent: and that unionization would result in a loss of bene-
fits, even sick time, and that employees "would be starting
from zero." Respondent's former nuclear medicine tech-
nologist. Martha Barlai-Kovach, also pinpointed credibly
and without contradiction that, at the same meeting, Yeck-
el spoke of essentially the same matters described by
Quantz, but that in relation to sick leave Yeckel also re-
marked that "As far as [l] know the Steelworkers [Union]
do not have any." Two other employees, Catherine Adams
and Charlotte Jones. who also testified without contradic-
tion, were likewise impressed by Yeckel's remarks that in
the event of unionization employee benefits would be lost
and that they would start from "scratch" or "zero,"
whereas if employees voted against the Union they would
"lose no benefits."
The heavy economic impact of Yeckel's observations
concerning loss of benefits and starting from "scratch" of
"zero" remarks may be assessed in terms of the fact that,
even aside from the existing salary levels, existing employ-
ee benefits included six paid holidays, two personal holi-
days, sickness and hospitalization benefits, vacations, life
insurance, time-and-a-half pay for holiday work, and re-
tirement.
March 29 at St. Joseph Center
Chief Executive Officer Yeckel addressed another as-
semblage of employees at the St. Joseph Center on March
29. Although there is no tape recording or transcript of this
speech. Yeckel indicates he told this group essentially the
same thing as the earlier group, without specific recollec-
tion of words or expressions, however, but that as indi-
cated above-"to the best of my recollection" he omitted
his previous remarks (March 28 at Homestead Center, su-
pra) concerning employees' starting from "zero" in the
event of unionization. As to this, however, it is observed
that Yeckel's outline of his speech (Resp. Exh. 4) which he
concededly utilized for his March 29 speech at St. Joseph
Center, includes the following (Resp. Exh. 4):
After the Election
-If Union wins-contract
negot. from benefit point zerot4
Regarding his March 29 speech to employees assembled
at St. Joseph Center, Yeckel readily conceded that he was
unable to recall specific words, remarks, and expressions
and that he only "more or less adhered" to his notes or
outline of what he intended to say-thus in effect leaving it
to a degree open as to what he actually said or did not say.
Concerning Yeckel's remarks to the March 29 assem-
blage at St. Joseph Center, Respondent's operating room
licensed practical nurse Kathleen Michaels and its long-
14 Yeckel explained at the hearing that "I probabhl should have crossed it
out but ddn't." He also testified. however, that, as to the meetings after
March 28. "I did not certainly intend to use the word from zero at thesubsequent meetings and as I sas. to the bestrr t ml recoll ecti on. I did not."
Emphasis supplied )
S O U T H~~ HI LH E L T S Y T E 75 ---
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
term telephone operator Donna Sauer testified that at this
meeting Yeckel stated to the assembled employees there
also that in the event of unionization employee benefits
would be "taken away from [you]" and that "we will start
from zero and we will bargain from there," "if we get a
Union in, then we start from zero, there are no benefits,
[you] have to bargain for everything," and "If you have the
Union come in, you would start from zero and work your
way up," although employees could also gain in the pro-
cess, but that "No one would lose their jobs or benefits if
the Union is not voted in." This was at an employees' regu-
lar monthly assemblage, which Yeckel normally does not
attend.
March 31 at St. Joseph Center
Another such speech to a similar assemblage of employ-
ees at St. Joseph Center was concededly made by Yeckel
on March 31. This likewise was not tape-recorded with
Yeckel again asserting that he "more or less adhered" to
his outline (supra, March 29 at St. Joseph Center), but un-
able to reconstruct or recall his words.
Concerning this occasion, the testimony of Respondent's
former mail clerk Kathy Fabian shows that Yeckel repeat-
ed essentially the same remarks to the effect that the inter-
position of a union was unneeded and that in case of
unionization in the ensuing negotiations "you would start
from zero." Respondent's nursing assistant Tanya Kondra-
tenko testified that Yeckel informed the assembled em-
ployees on this occasion that, "When you bargain a union
contract, you start from zero [and] try to bargain back
what you had had and then try to get what more you want-
ed," adding that "there are no sick days with Unions."
April I at Homestead Center
The complaint (Pars. 6(b) and (e) also alleges that
Respondent's chief executive officer, Yeckel, made similar
remarks to employees "on or about" April I at Homestead
Center. Although Yeckel concedes that he did indeed ad-
dress employees there on that date, inasmuch as none of
the General Counsel's witnesses testified concerning a
meeting there on that specific date, Respondent moved at
the hearing for "summary judgment" on this particular
allegation for failure of proof, the General Counsel con-
tending in opposition that it is covered by the "on or
about" wording of the complaint allegations. Assuming the
General Counsel's contention to be sound and that the
speech in question is covered by proof already described
concerning Yeckel's March 28, 29, and 31 speeches, and
treating Respondent's motion as one to dismiss; that mo-
tion is granted on the ground that the General Counsel's
proof relevant thereto is subsumed under other complaint
allegations already considered and disposed of supra, or
that the allegation in question is surplusage.
Coming to the question of whether Yeckel's described
statements to one or more of the large employee assem-
blages constituted or included threats of loss of economic
benefits in the event of unionization, as alleged, I find that
they did. In my view, a fair construction of the intendment
and reasonable effect of so much of his remarks as related
to loss of economic benefits and of "starting from zero" in
the event of unionization, in the context of the record as a
whole, was to convey the message to the employees, untu-
tored in the niceties and refinements of labor law, that the
price they would or could have to pay for collective bar-
gaining through the Union-a right guaranteed to them by
the law of the land, unburdened by strong scares and
threats-was to jeopardize, if not lose, such economic ben-
efits as they already, and to have to bargain to even regain
them. The Act permits expression of "views, argument, or
opinion" only "if such expression contains no threat of
reprisal. . ." (Act, Sec. 8(c).) The warning has repeatedly
been sounded, including by our highest Court, that eco-
nomic threats, such as those of loss of employment bene-
fits, are among the most potent and sinister that can be
levelled against employees, robbing them, through fear, of
the Act's intended assurance of freedom of choice relative
to whether to bargain collectively; and that, accordingly,
such expressions by an employer to dependent employees
seeking to exercise rights under the Act, particularly in a
prestatutory election atmosphere, are violative of Section
8(a)(1) of the Act. Cf., e.g., N.L.R.B. v. Gissel Packing Co.
Inc., 395 U.S. 575, 617-620 (1969); N.L.R.B. v. Exchange
Parts Company, 375 U.S. 405, 409-410 (1964); Henry I. Sie-
gel Co., Inc. v. N.L.R.B., 417 F.2d 1206, 1208, 1214 (6th
Cir. 1969), cert. denied 398 U.S. 959 (1970); N.L.R.B. v.
E.S. Kingsford, d/b/a Kingsford Motor Car Co. 313 F.2d
826, 832 (6th Cir. 1963), and cases cited; N.L.R.B. v. Feder-
bush Company, Inc., 121 F.2d 954, 957 (2nd Cir. 1941);
Components, Inc., 197 NLRB 163 (1972); Wigwam Mills,
Inc., 149 NLRB 1601, 1611, 1618 (1964), enf. 351 F.2d 591
(7th Cir. 1965).
While an employer may of course fairly inform his em-
ployees that negotiations include the levels of salaries and
benefits' 5 the expressions here utilized, as found, concern-
ing loss of benefits and necessity for bargaining from
"zero" back up to the existing benefit level, in the frame-
work of the surrounding circumstantial congeries within
which they must be assessed, were not merely significantly
misleading but also constituted potent economic threats
reasonably calculated to induce trepidation and fear in the
employees that continued adherence to the union and
unionization would bring in their wake serious economic
detriment and even job insecurity and loss-utterances
plainly, in my view, unlawful under the Act. Cf., e.g., N.L.
R.B. v. Exchange Parts Co., supra; Plastronics, Inc., 233
NLRB 155 (1977); Coach and Equipment Sales Corp., 228
NLRB 440 (1977); Peterson Builders, Inc., 215 NLRB 161
(1974); Saunders Leasing System, Inc.. 204 NLRB 448, 454-
455 (1973) enfd. in relevant part 497 F.2d 453 (8th Cir.
1974). 6
Cf.. e.g.. Computer Peripherals. Inc.. 215 NLRB 293 294 (1974).
The effects of the utterances here found unlawful were sufficient even if
Yeckel's testimony is credited that they were made by him only to the
March 28 employee assemblage at Homestead Center and not repeated--
for reasons properly recognized and diagnosed by him, as described
above -to subsequent assemblages. although his assertion to that effect is
disputed by the testimony of quite a few employees whose testimonial de-
meanor impressed me favorably. See also fn. 14 supra. In any event, the
impact of Yeckel's unlawful statements to the March 28 Homestead assem-
blage of around 10) or more employees was sufficient not to he ignored by
SOUTH HILLS HEALTH SYSTEM 77
It is accordingly found that the complaint allegations in
question (pars. 6(b) and (e)) have, except with relation to
the specific date April 1, 1977, been established by sub-
stantial credible proof upon the record as a whole.
Sister Crecentia Mulvehill
It is additionally alleged (complaint, par. 6(b)) that on
March 29 and 311 Respondent also through its executive
director, Sisten Crescentia Mulvehill, threatened employ-
ees with loss of benefits in the event of unionization.
As to this, various employees attested to the presence of
Sister Crescentia at or near Yeckel's side when he made the
foregoing speeches on March 29 and 31 at St. Joseph Cen-
ter. Beyond this, there is little else, and nothin of conse-
quence save the testimony of Respondent's telephone oper-
ator Donna Sauer-alone-that when, following the
conclusion of the March 29 meeting, she asked Yeckel
whether in the event of unionization she would lose her
accrued sick leave and Yeckel replied, "Yes,"'8 Sister Cres-
centia pointed out that it was not Respondent's policy to
pay accrued or unused sick days. On cross-examination,
Sauer conceded that Respondent's policy had been merely
to permit sick leave to be accrued and utilized by employ-
ees, but not to pay them for it on termination. And, ac-
cording to employee Kondratenko-also alone-Sister
Crescentia also remarked to the assemblage that "there are
no sick days with Unions."
Concerning the foregoing, Sister Crescentia testified,
without cross-examination and with corroboration from
Yeckel, that, in response to an employee question, she indi-
cated to Yeckel the true fact that it was not Respondent's
policy to pay for unused sick days and that she did not
state that there are no sick days with unions.
Considering it quite unlikely that if Sister Crescentia had
made the remark attributed to her by Kondratenko it
would not also have been heard by and testified to by
others of the employees who testified concerning the occa-
sion in question; the further fact that Sister Crescentia's
apparently accurate description of Respondent's existing
policy concerning accrued leave was in no way unlawful;
and the fact that, after observing Sister Crescentia's testi-
monial demeanor, it would be impossible for me not to
believe her, I find the allegation in question concerning
Sister Crescentia not sustained.
It will be recalled that the Board-supervised statutory
representation elections for the two units here were held on
April 21, in accordance with the parties' Stipulations for
Certification Upon Consent Election (signed by them on
March 16) approved by the Regional Director on March
22.
It is conceded that 3 days prior to those elections, on April
18,'9 Respondent announced to its employees numerous
at least those employees to whom it was concededly never withdrawn or
corrected-or overlooked or minimized here.
: Date added at the hearing.
t it is noted, however, that in her pretnal affidavit Sauer swore that
Yeckel said. "Yes, possibly."
' The actual date of notification to at least some employees was even
later-April 19 or 20, 2 days or even only I day before the election, as
established by credited uncross-examined testimony of Respondent's cen-
promotions as well as pay increases, effective May 1., 10
days after the election. These wage increases, affecting
numerous employees eligible to vote in the elections (G.C.
Exh. 23), were in some cases as much as $1.56 per hour.
While these upcoming salary changes were signaled by Re-
spondent in January-during the Union's organizational
campaign-to be tied to the planned transition from
Homestead and St. Joseph Centers to Jefferson Center, it is
to be noted that Respondent's own announcement in Janu-
ary had specified that the effective date of any grade classifi-
cation or pay change would be July 1, stating in the January
3 "Special Edition" of its publication, "The Jotter" (G.C.
Exh. 24), that:
The effective date for these changes are July 1, 1977
.. Any retroactivity which is due to the employee
will be paid to him based on the effective day of July
1, 1977.
Thus, not only was the timing of the announcement of these
substantial promotions and pay increases made only 3 (orfew-
er) days before the Board election, but their effective date was
advanced by 2 months from July I to May 1. Without more,
these actions would be clearly indicative of and support a
finding of violation of Section 8(aX I). (Act, "benefit"provi-
so to Sec. 8(c); N.L.R.B. v. Exchange Parts Company, 375
U.S. 405, 409-410 (1964)).
Respondent's explanation for these actions is that the
Jefferson Center was completed, or sufficiently so, to justi-
fy a contemplated earlier move, or beginning or partial
move, there between May I (some equipment) and May 18
(some patients) (Yeckel's speech, ALJ Exh. I). However,
there is no persuasive evidence (in contract or other written
form or otherwise) that this was not known to Respondent
all along, thus in any event thowing into serious doubt its
claim that it had to as well as announce these benefits it
did, on the eve of the election, for objective or other
"good" reason unrelated to desire to thwart or improperly
influence its employees in their free and uncoerced exercise
of their voting rights under the Act.20 Furthermore,
Respondent's assistant executive director for professional
services, Robert Horn, who had complete responsibility for
all of its personnel functions, and made the announce-
ments when he did (and with knowledge of the union cam-
paign), conceded at the hearing that there was no reason why
his announcements could not have been made after, rather
than before, the April 21 election. I reject, upon testimonial
demeanor observations and as unworthy of belief, that at
least the announcement-as well as the 2-month advance-
ment of the previously announced July 121 effective date of
tral processing technician, Rose Harns.
0 Casting further doubt on Respondent's contention that the promotions
and salary increases merely coincided with employees' moves to Jefferson
Center. is the concession, during the hearing, of its assistant executive direc-
tor and personnel chief. Horn (as well as by Chief Executive Officer Yeck-
el), that since the pay increases were advanced to May I and various per-
sonnel did not move to Jefferson Center until much later in May. those
employees received the pay increases in question even before they assumed
their jobs in Jefferson Center.
It is also noted that. according to Horn's testimony, Respondent's fiscal
year commences on July I seemingly establishing that date. for budgetary
appropriation and funding purposes, as the rational benchmark for the
heavy added outlays essential to carry out the substantial pay increases. and
Continued
SOUTH HILLS HEALTH SYSTEM
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any promotions/salary changes-on April 18. 3 days be-
fore the election (or even less), were a sheer "coincidence."
To the contrary, I find, upon the record as a whole. that
their effective date advancement was intended as a benefit,
and the deliberately strategically timed announcement
thereof, to interfere with and coerce the employees in the
free and untrammeled exercise of their protected concerted
activities and rights under Section 7 of the Act, as well as
to influence the outcome of the statutory election and
abort free and uncoerced balloting by the employee voters.
It has long been clearly established that deliberate tim-
ing of pay increases or advancement of previously estab-
lished pay increase dates, as well as the timing of an-
nouncements thereof, are violative of the Act if, as here,
their reasonable intendment or effect is to interfere with,
restrain, or coerce employees in the exercise of their rights
under Section 7 of the Act. (Act, Sec. 8(a)(1) and provi.vo to
Sec. 8(c): N.L.R.B. v. Exchange Parts Co., supra; N.L.R.B.
v. Spotlight Compan. Inc., 462 F.2d 18 (8th Cir. 1972);
Teledyne Dental Products Corp., 210 NLRB 435 (1974);
Texas Transport & Terminal Co., Inc., 187 NLRB 466, 467-
468 (1970); J. C. Penney Co., Inc., 160 NLRB 279 (1966).
enfd. 384 F.2d 479 (lOth Cir. 1967)).22
Under the circumstances and for the reasons described,
it is accordingly found that this allegation (par. 6(d)) of the
complaint has been established.
Upon the foregoing findings 23 and the entire record, I
state the following:
CONCLUSIONS oi- LW
I. Jurisdiction is properly asserted in this proceeding.
2. Through its actions in creating the impression of sur-
veillance over its employees' protected concerted activities,
interrogation of employees concerning those activities,
threats of loss of employees' existing job-related economic
benefits and of starting from zero in negotiations if em-
ployees selected the Union as their collective-bargaining
representative, and timing of the announcement of wage
increases immediately prior to a Board-scheduled statutory
representation election and advancing the effective date of
such wage increases, under the circumstances described
and found in section III, supra, Respondent has interfered
with, restrained, and coerced employees in the exercise of
their rights under Section 7 and continues so to do, in vio-
lation of Section 8(a)(1) of the Act.
accounting for Respondent's earlier (January) announcenent of July I as
their effective date. It is further noted that Horn's and Respondent's) e n
"Administrative Policy" describing the phasing of the move to Jefferson
Center explicitly states that "Sulartr polhies goerrin cluhanges made in rthi
Ifinal/ Phase are found in the policies oI Januarv 3. /977 Special Edition II {,,
7he Jotter" (Resp. Exh. 1. emphasis suppliedl i.e. July I. /977. as quoted
.supra
* It is. of course, not violative of the Act for an employer. during
preelection interval, merely to effectuate a systematically regular incremen-
tal pat increase or to carry one out substantially previously announced
without advancement of its previously announced effective date. Cf. lto,,,
rola. Inc., 163 NLRB 385, 388 393 (1967) and cases cited: The tadioh/,,
Courier, Inc., 162 NLRB 550 (1967).
2 See Appendix A omitted from publicationl for tabular resume of find-
ings cross-referenced to) complaint subparagraphs. together with recommen-
dations on union objections to the election.
3. The aforesaid unfair labor practices and each of them
have affected, are affecting, and unless permanently re-
strained and enjoined, will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. It has not been established that Respondent violated
the Act in the respects set forth in complaing paragraphs
III. B, insofar as applicable only to Respondent's supervis-
or. Florence Rosso, 111, C, insofar as applicable only to
Respondent's supervisors, Elaine Lally, Jean Davis, Veron-
ica Kish, Sister Crescentia Mulvehill, and, in respect only
to April 1, 1977, George Yeckel; and those allegations of
the complaint in Case 6-CA-10308-2 should be dismissed.
Iv REMEDY
Having been found to have violated Section 8(a)(1) of
the Act in various respects, Respondent should, as is cus-
tomary in cases of this type. be ordered to cease and desist
from those and like violations of the Act, and to post the
usual informative notice to Employees.2 4
V\ THE RPRESENIAtIlON ASE
As already indicated, timely union objections to em-
ployer conduct said to have affected the results of the April
21 Board-supervised representation elections are, through
consolidation (Cases 6-RC-7760 and 6-RC-7761), also
here for disposition. In each of those elections, as aforenot-
ed, a majority of votes was counted against union represen-
tation. In its objections, the Union claims the election out-
comes were attributable to or influenced by unlawful acts
of the Employer, most of which have already been dis-
cussed (supra), during the interval between the filing of its
election petition (February 17) and the election (April 21).
Of the 12, plus a catchall "other acts," objections 75
have been withdrawn, leaving only Objections 3, 5, 8, 10,
11, and the "other acts" here for consideration.
Objection 3 (relating to the timing, immediately preced-
ing the elections of the announement by Robert Horn con-
cerning, and the advancement of the effective date of, em-
ployee promotions and pay increases) and Objection 11
(economic threats by George Yeckel, in his speeches to
assembled employees on Marcy 28, 29, and 31), as well as
other actions and episodes subsumable under "other acts,"
have already been dealth with supra, in the underlying un-
fair labor practices complaint case (Case 6-CA-10308-2)
and need not be redetailed here. In view of the estab-
lishment, to the extent found supra (sec. III), of those alle-
gations, Objections 3 and 11, and "other acts" insofar as
found in the underlying complaint case, should be sus-
tained.2
24 No bargaining order is sought. nor would any be appropriate, at least
becaluse there is no claim or proof of niajorit) representative status of the
I[niloil it an tite.
I.e.. Oections . 2, 4 6. 7. 9 and 12.
Since the standards required by the Board for maintenance of the "lab-
orator' . . .conditions" ((;Genra Shoe ( orporation 77 NLRB 124 at 127
[19481 it desires for its elections are less exacting than those required for
pr,. of .1 unfair labor practices violahlons. prof of the latter. if the same or
closel related, a fortiori establishes noncompliance with the election stan-
dards. Dal-lev Optical (ompuny Inc.. 137 NL.RB 1782. 1786 87 (1962) See
also sluper hrif Markei.s Inc.. 233 NRB 40)9 (1977).
SOUTH HILLS HEALTH SYSTEM 79
Objection 5 (relating to alleged "interference and interro-
gation" on April 21 (election day)), has not been estab-
lished and should be overruled for failure of proof.
Remaining Objections 8 and 10 deal with various aspects
and details of the Excelsior preelection voting lists submit-
ted by the Employer and in part forming the basis for vot-
ing eligibility at the elections. Among the subordinate is-
sues involved in these objections are whether the lists were
accurate and, if not, in what specific respects they were
erroneous or arguably so-in turn seemingly raising mani-
fold further subordinate issues; whether the Union agreed
to these lists or was wrongfully or without fault on its part
induced to do so; and whether the Employer accurately
and in good faith, or misleadingly and deceptively, repre-
sented to its employees voting eligibility (or noneligibility)
as having already been determined by the Board. Aside
from the fact that these are normally issues of the kind
requiring careful investigative exploration by the Regional
Director's staff--an investigative task inappropriate for the
administrative law judge for various reasons, including not
only his lack of investigative facilities but also the incon-
gruity of combining investigative with judicial functions-
since the elections should be set aside because other objec-
tions have been sustained, necessitating new elections upon
the basis of properly updated and approved Excelsior lists,
it would in any event serve no useful purpose here to dis-
cuss at length the details of proof and to consider and
attempt to determine intricate issues which are now essen-
tially moot, relating as they do to voided elections. and
resolution of which would in any event not affect the rec-
ommendation to set aside those elections. For these rea-
sons, it is recommended that Objections 8 and 10 be dis-
missed as moot.
The sustaining of the indicated objections would of
course require invalidation of the April 21 elections and
the holding of new elections at a time or times and circum-
stances which are appropriate, in accordance with the
Board's standards and procedures in cases of this nature,
and it will accordingly be so recommended to the Board.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this consolidated pro-
ceeding. and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 27
The Respondent, South Hills Health System. Jefferson
Borough, Pennsylvania, its officers, agents, sucessors, and
assigns, shall:
I. Cease and desist from:
(a) Interrogating its employees concerning their or other
employees' union affiliations, views, sympathies. activities,
voting intentions, or other protected concerted activities, in
interference with, or coercion or restraint of their exercise
' In the eent n exceptions are filed as provided h Sec 102.46 of the
Rules and Regulations of the National .;ahor Relations Board. the findings.
and conclusions, as well as the recommended Order sahlch folloas herein.
shall. as provided in Sec 102 48 of hose Rules and Regulations. he adopted
bh the Board and become ts findings, conclusions. nd Order, and all obh-
jections thereto shall bhe deemied ailved for all purposes
of any right under the National Labor Relations Act. as
amended.
(b) Willfully creating the justifiable impression28 on the
part of its employees that their union or other protected
concerted activities under said Act are under Respondent's
surveillance in violation of Section 8(a)(1) of the Act.
(c) Threatening, expressly or impliedly, the cessation,
cancellation, withdrawal. removal, discontinuance, loss, or
diminution of any existingjob-related economic benefit, or
threatening adverse alteration of job status, or threatening
that negotiation with a union would be based upon the
withdrawal or cancellation of employees' existing job re-
lated benefits, or threatening any other form of reprisal, for
union adherence, support. voting, selection of a union as
collective-bargaining representative, or in the event of
unionization.
(d) Promising, holding out, announcing, advancing or
prematurely effectuating the previously announced effec-
tive date, of job promotions or pay increases to employees,
so as, in violation of Section 8(a)( 1) of the Act, to interfere
with, restrain, or coerce them in the exercise or attempted
exercise of the right to bargain collectively or the exercise
or attempted exercise of any other right under Section 7 of
the Act.
(e) In any like or related manner interfering with. re-
straining. or coercing employees in the exercise of their
right to self-organization; to form, join, or assist any labor
organization; to bargain collectively through representa-
tives of their own choosing; to engage in concerted activi-
ties for the purposes of collective bargaining or other mutu-
al aid or protection: or to refrain from any and all such
activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at their Jefferson Center. Homestead Center,
and St. Joseph Center copies of the attached notice marked
"Appendix B."29 Copies of said notice, on forms provided
by the Regional Director for Region 6, after being duly
signed by Respondent's authorized representative, shall he
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply therewith.
IT IS FURTHER ORDERED that the following allegations of
the complaint dated August 31, 1977, in Case 6 CA 103
08-2 be and they are hereby dismissed: paragraph 111, B,
insofar as applicable only to Respondent's supervisor Flor-
ence Rosso; paragraph III, C, insofar as applicable only to
Respondent's supervisors Elaine Lally, Jean Davis, Veron-
' ( V L R B . Rrbold Heater (',orpani, 408 t.2d 888 16th ir. 19691;
L R Srimple Time Recorder ('ompani. 401 2d 547 (Ist C(lr 1968).
'* In the eent that this Order is enforced h ,t judgment of a niled
States Court of Appeals, the words in the notice reading "Posted hb Order
of the National Labor Relations Board'" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals nforcing an Order of the
Nationll I .abor Relations Board."
SOUTH HILLS HEALTH SYSTEM I_, . . . . ., . I,..
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ica Kish, Sister Crescentia Mulvehill, and, in respect to
April 1, 1977 only, George Yeckel.
IT IS FURTHER RECOMMENDED that in Cases 6-RC-7760 and
6-RC-7761 the Board issue an order sustaining Petitioner
Union's Objection 3, Objection 11 (except as to April 1,
1977), and objection to other acts of the Employer to the
extent found to have constituted unfair labor practices in
Case 6-CA-10308-2, affecting the results of the statutory
representation elections held on April 21, 1977; overruling
Objection 5; dismissing Objections 8 and 10 as moot; set-
ting aside said elections and their outcomes; and directing
that new elections be held as soon as feasible, under the
supervision of and at such time or times as the Regional
Director for Region 6 deems that circumstances permit
free choice of bargaining representative.3 0
" In the event Respondent refuses or fails to comply with the terms of the
Order in Case 6-CA-10308-2, I recommend that said Regional Director
also be authorized to conduct the elections of either of them herein recom-
mended, upon written request of Petitioner Union. Ideal Baking Company of
Tennessee, Inc.. 143 NLRB 546. 554. fn.9 (1963).