Southern Maryland Hospital Center

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1349 (N.L.R.B. 1985)

SOUTHERN MARYLAND HOSPITAL
Southern Maryland Hospital Center and Office and
Professional ' Employees Union, Local Nom 2,
AFL-CIO. Cases 5-CA-14016 and 5-CA-
14017
30 September 1985
DECISION AND ORDER
BY CHAIRMAN Do T sON AND MEMBERS
DENNIS AND JOHANSEN
On 22 April 1983 Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the Charging Party and the General Counsel
filed briefs in response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order and to adopt the recommended
Order as modified.2
1. The judge found, inter alia, that the Respond-
ent violated Section 8(a)(3) of the Act by with-
holding a yearend bonus in 1981 because its em-
ployees had participated that year in union organiz-
ing campaigns . The judge specifically rejected the
Respondent's several justifications for withholding
The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd. 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In the absence of exceptions thereto , we adopt, pro forma, the judge's
dismissal of pars 5(c), (h) (in part ), (i), (o), and (p) of the complaint
In the penultimate paragraph of sec ; C,2, of her decision , the judge in-
advertently states that the portion of complaint par. '5(h) dealing with un-
lawful solicitation of grievances is "pioved" rather than "not proved." At
sec. C,3 of her decision she inadvertently stated the date of Dr Chara-
monte 's grievance meeting as 24 January 1983 instead of 24 January 1982
Also at sec C,4 , of her decision she inadvertently refers to "gunnies" in-
stead of "gunnies " These inadvertencies do not affect our decision.
In agreeing with the judge to dismiss interrogations alleged in pars.
5(c) and (o) of the complaint , we note that her analyses comport with
Rossmore House, 269 NLRB 1176 (1984), which issued following her de-
cision and recommended Order in this case
we agree with the judge 's conclusion that the Respondent violated
Sec. 8(a)(1) by barring employees and nonemployee union organizers
from the hospital cafeteria , but rely solely on the judge 's finding that the
Respondent was motivated by discriminatory considerations . We find it
unnecessary to pass on the judge 's discussion of the question whether a
union has a right of access to nonpatient care areas of a hospital
We also agree with the judge that the Respondent violated Sec 8(a)(1)
by instituting the "Employee of the Month" award in order to discourage
employee support for the Union , but we find it unnecessary to rely on
the Board 's policy of presuming the unlawfulness of grants of benefits
during the preelection period
Finally , on the facts of this case , we do not believe that a broad cease-
and-desist order is warranted under the standards of Hickmott Foods, 242
NLRB 1357 (1979)
1349
the 1981 bonus. The Respondent asserts that, al-
though it awarded a yearend bonus in 1980 prior to
the Union's campaign, this bonus was merely a gift
and a one-time benefit it chose not to award again
in 1981 for lawful reasons. The judge concluded
that the Respondent's bases for these assertions
were essentially unsubstantiated, shifting, and in-
consistent. We agree.
The Respondent contends that the 1980 bonus
was merely a gift given out of private sentiment by
Chief Executive Officer Dr. Francis Chiaramonte
in recognition of the support the Respondent's staff
extended to his daughter while she was a terminal-
ly ill patient at the Respondent's hospital. As noted
by the judge, however, the Respondent paid the
bonus to all hospital employees including those
who had played no role during Dr. Chiaramonte's
family crisis and those who had not even been
working at the hospital at that time.
The Respondent's assertion that it intended the
1980 bonus as simply a one-time benefit is contra-
dicted by several advertisements and brochures it
published during the summer of 1981. In June 1982,
the Respondent published two nurse recruitment
advertisements in The Washington Post which
listed a bonus among the benefits it provides to
nurses at the hospital. In July 1981 the Respondent
prepared a leaflet which listed a yearend bonus as
one of several employee benefits. The Respondent
then sent the leaflet to the hospital employees
along with their paychecks, posted the leaflet on
hospital bulletin boards, and mailed the leaflet to
formerly employed nurses as a recuiting device.
Also during the summer of 1981 the Respondent
published an advertising brochure which listed an
annual yearend bonus among other employee bene-
fits.
The Respondent also contradicted its own asser-
tion that it intended the 1980 bonus as a one-time
benefit in a letter from Dr. Chiaramonte to the Re-
spondent's counsel. Dr. Chiaramonte admits in his
letter that the Respondent did in fact intend to pro-
vide employees with what he termed a "Christmas
gift" at year's end in 1981 as the Respondent had
done in 1980, but decided in December 1981 not to
for financial reasons.
The Respondent's accounting statement for 1980
and 1981 is in turn inconsistent with Dr. Chiara-
monte's assertion that the Respondent's financial
condition in 1981 dictated against awarding a
bonus that year. The statement shows that the Re-
spondent's profits for both years were virtually
identical. Dr. Chiaramonte shifted at the hearing to
yet another rationale for withholding the 1981
bonus. Instead of giving the employees a gift in
1981, as he had done in 1980, he decided to make
276 NLRB No. 153
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
additional contributions to the employee pension
plan. However, the same accounting statement
shows that the Respondent actually contributed
less to the employee pension plan in 1981 than it
had in 1980.
As stated above, we agree with the judge's rea-
soning in finding that the Respondent withheld the
1981 yearend bonus for discriminatory reasons.
Further, in light of the foregoing discussion we
agree with the judge that the Respondent has not
advanced a legitimate business justification for
withholding the 1981 bonus. Accordingly, we shall
adopt the judge's finding of an 8(a)(3) violation.
2. We disagree, however, with the judge's find-
ing that the Respondent violated Section 8(a)(1) by
threatening to sue nurses Carol Kline and Patricia
Vass. On 23 September 1981, Kline, Vass, and sev-
eral other nurses were seated at a conference room
table completing patient charts when Dr. Chiara-
monte entered the room. At the time there were
several copies of the union newsletter Solid Rock
lying on the conference table. Dr. Chiaramonte
asked the nurses whether they were working on
charts or organizing a union. He then picked up a
copy of the Solid Rock and asked "[W]ho prints
these lies?"
Vass, who along with Kline was an open and
active union supporter, asked Dr. Chiaramonte
what he was referring to. Dr. Chiaramonte replied
that he was referring to the newsletter accusation
that as the Respondent's sole stockholder he was
earning large profits and not returning any of them
to the Respondent's employees. He then asked who
printed the newsletter. Vass replied that she did
not know. Dr. Chiaramonte then stated that he was
"going to sue these people for slander [sic], for
writing these lies" about him.
There is no evidence that Vass or Kline were in-
volved in the publication of the Solid Rock or that
they were mentioned anywhere in the edition of
the newsletter. Vass denied even knowing who
printed the newsletter. The absence of any evi-
dence that Dr. Chiaramonte connected Vass or
Kline with the publication combined with his anon-
ymous reference to "these people" demonstrates
that his threat was directed not to the nurses, but
instead at the union officials who were responsible
for printing the newsletter. Accordingly, we shall
dismiss the complaint allegation that the Respond-
ent threatened to sue Vass and Kline in violation of
Section 8(a)(1).3
3 For reasons stated by the judge, Member Johansen finds, unlike his
colleagues, that Dr. Francis Chiaramonte's threat to sue "for slander"
(sic), in front of a group of employees, violated Sec. 8(a)(1)
ORDER
The National Labor Relations Board orders that
the Respondent, Southern Maryland Hospital
Center, Clinton, Maryland, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Confiscating union materials from its employ-
ees.
(b) Instituting programs such as the "Employee
of Month" award in order to discourage employ-
ees' support for the Union; provided, however, that
nothing herein shall be construed as requiring the
Respondent to vary or abandon any economic ben-
efit which has heretofore been established.
(c) Soliciting grievances from employees and
remedying those grievances in order to discourage
their support for the Union.
(d) Interfering with Board processes by telling
employees they need not comply with Board issued
subpoenas.
(e) Informing employees that they did not re-
ceive a 1981 Christmas bonus because they sought
union representation.
(f) Restricting employees' access to union orga-
nizers during nonworking hours in nonpatient care
areas of the hospital.
(g) Threatening employees with discharge be-
cause of their union adherence.
(h) Threatening employees with bodily harm be-
cause they were engaged in distributing union liter-
ature or other protected concerted activities.
(i) Issuing verbal counseling reports and repri-
mands in a discriminatory and disparate manner.
(j) Refusing to pay its full-time and regular part-
time employees a bonus,at year's end 1981.
(k) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole its employees for withholding
the 1981 bonus by paying the bonus to affected em-
ployees in the manner set forth in the remedy sec-
tion of the judge's decision.
(b) Remove from its files the "verbal counseling
report" and "reprimand" issued to Patricia Vass on
30 September and 20 December 1981, respectively,
and notify her in writing that this has been done
and that evidence of this unlawful discipline will
not be used as a basis for future personnel actions
against her.
(c) Preserve and, on request, make available to
the Board or its agent for examination and copy-
ing, all bonus records and all other records neces-
SOUTHERN MARYLAND HOSPITAL 1351
sary to analyze the amount of payment due under
the terms of paragraph 2(a) of the Order. -
(d) Post at its facility in Clinton, Maryland,
copies of the attached notice marked "Appendix.114
Copies of the notice, on forms provided by the Re-
gional Director for Region 5, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places throughout the Hospital, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
WE WILL NOT threaten employees with bodily
harm for distributing union literature.
WE WILL NOT issue verbal counseling reports or
reprimands in a discriminatory or disparate manner.
WE WILL NOT discriminate against our employ-
ees by failing or refusing to pay all our full-time
and regular part-time employees the yearend 1981
bonus.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make our employees whole for with-
holding the yearend 1981 bonus by paying the
bonus to affected employees, with interest.
WE WILL expunge from our files the "verbal
counseling report" and "reprimand" issued to Pa-
tricia Vass on 30 September and 20 December
1981, respectively, and WE WILL notify her in writ-
ing that this has been done and that evidence of
this unlawful discipline will not be used as a basis
for future personnel actions against her.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post, and abide by this'notice.
WE WILL NOT institute programs such as the
Employee of the Month award in order to discour-
age our employees' support for the Union. Howev-
er, we are not required to vary or abandon any
economic benefit which has been established.
WE WILL NOT solicit grievances from our em-
ployees and remedy those grievances in -order to
discourage their support for the Union.
WE WILL NOT interfere with Board processes by
telling employees they need not comply with
Board subpoenas.
WE WILL NOT inform our employees that they
did not receive a yearend bonus in 1981 because
they sought union representation.
WE WILL NOT restrict our employees' access to
union organizers during nonworking hours in non-
working areas.
WE WILL NOT threaten employees with dis-
charge because they support the Union or any
other labor organization.
SOUTHERN MARYLAND HOSPITAL
CENTER
Mark M. Carissimi, Esq., of Baltimore, Maryland, for the
General Counsel.
Warren M. Davison, Esq. and Leslie R. Stellman, Esq.
(Shawe & Rosenthal), for the Respondent.
Joseph E. Finley, Esq. (Cole & Groner), of Washington,
D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARLENE PACHT, Administrative Law Judge. This case
was heard in Washington, D.C., over a 6-day period,
from November 15 to 22, 1982, pursuant to charges filed
by the Office and Professional Employees' Union, Local
No. 2, AFL-CIO (OPEIU or the Union) on January 25,
1982.1 Thereafter, a consolidated complaint and notice of
hearing issued on April 14, 1982, alleging that the Re-
spondent, Southern Maryland Hospital Center (Respond-
ent or the Hospital) committed numerous unfair labor
practices in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act.
On the entire record in this proceeding, including my
observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel, the
Charging Party and the Respondent, I make the follow-
ing
1 With the consent of the parties, Chief Administrative Law Judge,
Melvin J. Welles conducted the final portion of this hearing on Novem-
ber 22, in my absence, for I was compelled to excuse myself from the
hearing.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AS TO JURISDICTION
Respondent, a Maryland corporation with its office
and place of business in Clinton, Maryland, is a health
care institution which operates a full service general hos-
pital providing inpatient and outpatient medical services.
During the 12-month period ending December 31, 1981,
a representative period, Respondent, in the course and
conduct of its operations, derived gross revenues in
excess of $250,000 and purchased and received goods
and materials valued in excess of $50,000 directly from
points outside the State of Maryland. Accordingly, I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act at all material times herein.
The Union is now, and has been at all material times
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Respondent Hospital, which opened its doors in 1977,
is under the direct control of Dr. Francis Chiaramonte,
chief executive officer and principal stockholder of the
corporation.2 In the spring of 1981, five separate unions
initiated organizational campaigns which continued
throughout that year and the next and culminated in
elections held in June 1982. No union won a majority.
However, the OPEIU filed charges of unlawful conduct
which gave rise to the instant complaint.
The General Counsel alleges that Respondent engaged
in widespread and diverse unfair labor practices designed
to interfere with, coerce, and restrain employees in the
exercise of their Section 7 rights. In general, the alleged
independent violations of Section 8(a)(1) of the Act fall
into the following principal categories: unlawful interro-
gation; solicitation of and promises to remedy grievances;
threats; and the granting of benefits. In addition, Re-
spondent is accused of disciplining an employee because
of her support for the Union in violation of Section
8(a)(3) and (1) of the Act. Most significant are allegations
charging Respondent with violating Section 8(a)(3) and
(1) of the Act by withholding a yearend bonus which it
otherwise would have granted were it not for the pres-
ence of the unions.
B. Allegations of Restraint, Interference, and Coercion
1. Confiscation of union literature (paragraph 5(b))3
Several allegations in the complaint stem from Dr.
Chiaramonte's hostile reaction to the union campaign
material which led him into unpleasant confrontations
with employees. The first such incident occurred on Sep-
tember 17, 1981. Mary Cox, a registered nurse, was dis-
tributing copies of the OPEIU's newsletter , Solid Rock,
at the entrance to the cafeteria when Dr. Chiaramonte
2 The doctor is also the sole stockholder of another corporation, Man-
agement and Technical Services, Inc., which provided management and
consulting services to the Hospital, and a partner in the Southern Mary-
land Hospital Center of which Respondent is a wholly owned subsidiary.
3 References are to the various paragraphs in the complaint.
approached. When he asked her what she was doing, she
offered him a copy of the paper. Somewhat brusquely,
he grasped the 8 to 10 copies she had in hand stating that
he would get rid of them for her. He then walked into
the cafeteria's kitchen and offered the newsletters to the
staff there with words such as "does anybody want
these." He returned 5 minutes later and returned one
copy of the newsletter to Cox. During the Doctor's brief
absence, Cox obtained additional copies of the paper
from a box which she had nearby and continued to hand
them out.
The facts of this incident are not controverted; what is
disputed are the legal consequences which attach to
them. The General Counsel claims, on the one hand, that
employees have a right to distribute and receive union
literature without interference. The Respondent counters
that Dr. Chiaramonte did not confiscate the materials but
rather aided in their distribution and, therefore, his con-
duct cannot be condemned.
The Respondent's effort to minimize the impropriety
of the doctor's deed fails. He was not simply another em-
ployee assisting in the circulation of union material as an
act of good faith. Rather, he was the principal officer of
the Hospital and, by his own admission, was utilizing the
occasion for its psychological impact.4 The issue is not
whether the doctor appropriated a few or all of the
copies of the newsletter, nor whether Cox had additional
materials available to her. Of course, it is always possible
to imagine wrongdoing on a greater scale than that
which occurred here. For example, the doctor might
have confiscated all of the papers. But it does not follow
that Dr. Chiaramonte's lesser intrusion lacked coercive
impact. It was the Respondent's obligation under Section
8(a)(1) not to interfere at all with the employees' right to
distribute union literature. By his conduct, the doctor
demonstrated his disdain for the Union's campaign and
thereby interfered with the rights of other employees
who, like Cox, might wish to engage either in the distri-
bution or receipt of union literature. Accordingly, I find
that Dr. Chiaramonte's conduct in appropriating union
materials interfered with the employees' Section 7 rights
in violation of Section 8(a)(1) of the Act.
2. Threat to sue and interrogation (paragraphs 5(c)
and (d))
Five days after Dr. Chiaramonte's encounter with
Cox, his feelings about the Solid Rock led him into fur-
ther inappropriate behavior. On September 23, a small
group of registered nurses including Carol Kline and Pat
Vass, were gathered in the conference room completing
certain reports at the end of their shift. The doctor en-
tered the room, observed copies of the Solid Rock on the
conference table and asked if the women were "charting
or if we were organizing a union." Pat Vass, admittedly
the Union's leading proponent, responded that they were
waiting for the completion of a narcotics count so that
they could forward their reports to the oncoming shift.
° The doctor did not state nor did anyone ask what psychological
impact he had in mind It is a safe assumption, however, that he had
some effect in mind antithetical to the Union's interests
SOUTHERN MARYLAND HOSPITAL 1353
The doctor then picked up a copy of the Solid Rock and,
asked, "who prints these lies." Vass asked what he con-
sidered a lie, to which Dr. Chiaramonte responded that
the whole thing was a lie. When Vass asked him to iden-
tify a specific lie he said , "this part about me making 2.7
million." The doctor then asked who printed the paper
and followed this by asserting that "he was going to sue
these people for slander, for writing these lies about
him." Respondent does not seriously take issue with this
account of the doctor 's remarks.
Longstanding Board precedent holds that while the
actual filing of a civil suit is not an unfair labor practice,
the threat to do so is . See S. E Nichols Marcy Corp., 229
NLRB 75 (1977). Respondent submits, however , that the
doctor 's threat to sue was not directed towards the
women present in the conference room but toward the
Union and , therefore , does not amount to an unfair labor
practice . I disagree . It is important to bear in mind that
Pat Vass, as well as others in the room , were known
union activists . Although Dr. Chiaramonte 's statement
may not have specifically identified them as potential
parties to the litigation , his remarks impliedly linked
them to the Union's purported slanders . Both he and
they perceived the connection between these women and
the Union . He directed his remarks to the same persons
whom he had asked about organizational activity. His
threat to sue was announced to known union activists
some of whose names appeared in the Solid Rock. Under
these circumstances, a reasonable person in the position
of these employees could regard these remarks as intimi-
dating . Whatever the doctor 's subsequent intent may
have been is irrelevant . Consequently , the threat to sue
violated Section 8(a)(1).
As to Dr. Chiaramonte 's questions to the nurses con-
cerning their union activity , 1 do not find that these in-
quiries rise to the level of unlawful interrogations. His
questions were somewhat rhetorical in nature , addressed
to no one in particular and were not serious probes for
information about their union activities . Accordingly, I
will dismiss paragraph 5(c) of the complaint.
3. Threat of bodily harm (paragraph 5(a))
Dr. Chiaramonte 's animus toward the Union in general
and the Solid Rock in particular caused another eruption
only a few weeks prior to the Board-conducted elec-
tions . This incident, as described by employee La Tenzar
Everett, then a histology technician , occurred in mid-
May, while he was distributing a copy of the union
newsletter at the doorway to the cafeteria. As Dr. Chiar-
amonte was approaching the cafeteria with physician's
assistant Preston Potter , Everett offered him a copy of
the paper . According to Everett , the doctor 's response
was "are you crazy-I 'll kill you." Dr . Chiaramonte
denied making such a comment although he conceded he
might have told Everett what to do with the paper.
Potter confirmed the doctor 's testimony stating that he
heard no threat of the sort Everett described.5
In determining where the truth of this matter lies, it is
necessary to ''set forth my observations of the principal
participants in this encounter . Everett was soft spoken,
but articulate. Even given his brief appearance on the
witness stand, he impressed me as a calm , modest, self-
possessed young man; In short , he presented himself as a
very credible witness. Dr. Chiaramonte is a dedicated,
disciplined professional . He was instrumental in founding
the Hospital and remains deeply involved in its daily op-
erations . He obviously shoulders enormous responsibil-
ities as chief executive of an institution performing an in-
valuable community service. Indeed, his dedication to
the Hospital may make him the tense , impatient person
whom I observed . Despite his studied air of casual con-
trol which he tried to exhibit as a witness, I perceived
him to be a man accustomed to deferential treatment
who would not lightly brook challenges to his authority.
As the union campaign progressed, he grew more rather
than less tolerant of his employees' concerted activity.
He admittedly was hard pressed to understand why any
employee needed a union , given his own benevolence,
and viewed prounion people as malcontents . It is clear
from the doctor's prior reactions to distributors of the
Solid Rock that he found the newsletter extremely offen-
sive. Therefore, when Everett tendered him a copy, it is
reasonable to conclude that the doctor reacted by
making the threat which Everett attributed to him. In
crediting Everett's account, I give special weight to the
fact that he testified while still in the Hospital 's employ:5
It makes no difference that he subsequently was promot-
ed to a better position at the Hospital. In testifying that
such intimidating words were uttered by the Respond-
ent's principal officer, Everett exhibited either an ex-
traordinary, amount of audacity or. "integrity ." I did not
find Everett an audacious man. It is regrettable that the
doctor, as chief representative of an institution with an
admirable humanitarian mission, should engage in such
reckless conduct. However brief and spontaneous his
outburst may have been, however unintended the threat,
the words were said and the damage was done. No cita-
tion of authority is necessary to support the conclusion
that this threat violates Section 8(a)(1) of the Act.
4. "Employee of the Month" award (paragraph
5(e))
On October 2, 1981, Margaret Greenway, special as-
sistant for public relations, issued a bulletin announcing
that "Dr. Chiaramonte has authorized a cash bonus in
the amount of one hundred dollars for the `Employee of
the Month ."' Greenway explained that in August when
she first was employed , Dr. Chiaramonte discussed the
desirability of reinstituting an award like one which pre-
viously had been in effect . She claimed she was unable
to uncover details of the former program, since the pre-
vious public relations director was no longer employed
at the Hospital . However, after discussing the matter
with other personnel , she developed the "Employee of
the Month" program in question . Dr. Chiaramonte had
5 Par . 5(a) was amended on the first day of the hearing to reflect the 6 See Parkvtew Acres Convalescent Center, 255 NLRB 1164, 1170 fn. 20
facts recited herein. (1981); Motz Poultry Co., 244 NLRB 573, 575 fn. 7 (1979).
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some recollection of a former event at which honors
were bestowed upon various persons at an annual ban-
quet. The Hospital's internal newsletter, The Pulse, also
contained articles describing an annual awards ceremony
in 1980 and 1981, at which prizes were awarded to a
large number of employees in each department of the
Hospital. The record fails to indicate what criteria may
have been used in selecting the prize winners or what
sort of prizes were bestowed.
The General Counsel contends that the "Employee Of
The Month" award was a new benefit devised by the
Respondent to attract employees to its cause and lure
them away from the Union. The Respondent insists that
it was not a new benefit, but rather a reintroduction of a
previously existing program, wholly unrelated to the
Union's organizational drive.
The law applicable to the facts presented here is pre-
cisely stated in Honolulu Sporting Goods Co., 239 NLRB
1277, 1280 (1979), enfd. (unpublished decision) (105
LRRM 2896 (1980)):
The validity of wage increases or other benefits
during the pendency of representation petitions
turns upon whether they are granted "for the pur-
pose of inducing employees to vote against the
Union." And a lawful purpose is not established by
the fact that the employer who took such action did
not expressly relate the granted wages to the orga-
nizational campaign. For, as the Supreme Court ob-
served in NLRB v. Exchange Parts Company, 375
U.S. 405, 410 "the absence of conditions or threats
pertaining to the particular benefits conferred" is
not "of controlling significance." Under settled
Board policy a grant or promise of benefits during
the critical preelection period will be considered un-
lawful unless the employer comes forward with an
explanation, other than the pending election, for the
timing of such action.
Respondent's attempt to characterize this award as
simply a slight variant of a benefit formerly conferred is
misleading . The only similiarity existing between the two
is that a prize was given in both instances. The parallel
stops there. The award's banquet, as described in the
Pulse, was a once-a-year event with numerous persons
from each of the Hospital's departments honored. Al-
though prizes were awarded the record does not indicate
what the prizes were. In contrast, "the Employee of the
Month" program was, as its title implies , to occur 12
times a year; the prize was set specifically at $100. Re-
spondent's apparent purpose in portraying the award as a
continuation of a former benefit was to deflect attention
from the fact that it was announced during the height of
the Union's campaign . Having failed in this attempt, Re-
spondent was obliged to produce some other satisfactory
explanation for the peculiar timing of its action. This it
has not done. Accordingly, in the absence of any com-
pelling and innocent justification, a fair inference may be
drawn that Respondent introduced the award in order to
influence the employees' choice of a representative in the
election . As such , the initiation of this benefit violated
Section 8(a)(1) of the Act.
C. Solicitation and Remedying of Grievances
(paragraphs 5 09, (h), (1), and (n))
1. October 26, 1981 meeting conducted by Dr.
Chiaramonte
Four allegations in the complaint concern the solicita-
tion of grievances by Respondent; three of the four fur-
ther allege a grant of benefits subsequent to the solicita-
tion. The first allegation, set forth in paragraph 5(f), ac-
cuses Dr. Chiaramonte of soliciting grievances from and
granting benefits to laboratory employees on October 26,
1981.
The General Counsel adduced evidence from two of
the employees, Cupp, a medical technologist, and Cox, a
laboratory employee, who attended a meeting of labora-
tory, nonsupervisory personnel at which the alleged vio-
lations occurred. Both women were on the OPIEU orga-
nizing committee at the time of the meeting and re-
mained in Respondent 's employ through the instant hear-
ing.
Dr. Chiaramonte, who conducted the meeting, asked
each employee her name, which laboratory department
she worked in, and whether she was satisfied with her
working conditions. Several employees took the opportu-
nity to register complaints. One woman, for example, re-
quested a nonsmokers ' lunch period in the laboratory
lounge; another mentioned a lack of communication be-
tween the laboratory and nursing staffs. The doctor in-
structed Greenway to look into both problems. Some-
time thereafter, a nonsmokers ' lunch period was institut-
ed, and for a brief time, nurses were rotated through the
laboratory.
Respondent relies solely on the testimony of Dr.
Chiaramonte to rebut the evidence introduced by the
General Counsel. Although he had no specific recollec-
tion of the meeting in question , he did not deny that the
meeting occurred as related . Indeed, the doctor pointed
out that such meetings were commonplace . He main-
tained that he has held them on an informal impromptu
basis to address problems as they arose since the Hospital
opened . He also noted that complaints bearing on a non-
smoker's lounge and the lack of intrastaff communica-
tions were raised and corrected prior to the union cam-
paign and had become troublesome again due to a
change in personnel . Notwithstanding these assertions,
not one employee could recall meetings,remotely resem-
bling the one described here prior to the onset of the
union campaign. In fact Cupp and Cox both testified cre-
dibly as to the novelty of the meeting, as well as to the
manner in which it was conducted. That this was the
first meeting of its kind known to or attended by Cupp
and Cox is evident from the record. Specifically, Cupp,
whose employment with the Hospital began in August
1979, stated that there had been no such meetings with
laboratory employees prior to the Union's organizing
campaign and to her knowledge, no such meetings oc-
curred with employees of other departments. Cupp con-
firmed that this was the first such meeting she had at-
tended . In the face of this credible and corroborative tes-
timony, I cannot accept Dr. Chiaramonte 's assertions
that such meetings were commonplace or that the two
SOUTHERN MARYLAND HOSPITAL 1355
problems which were raised had been identified and rem-
edied at any previous time.
It is a time-honored principle that "[w]here, as here,
an employer, who has not previously had a practice of
soliciting employee grievances or complaints, adopts
such a course when unions engage in organizational cam-
paigns seeking to represent employees . . . there is a
compelling inference that he is implicitly promising to
correct those inequities he discovers as a result of his in-
quiries and likewise urging on his employees that the
combined program of inquiry and correction will make
union representation unnecessary. Reliance Electric Co.,
cited in Ben Franklin Division of City Products, 251
NLRB 1512, 1518 (1980). The facts in this record wholly
warrant the inference that Dr. Chiaramonte solicitated
grievances to impress -employees with the fact that he
would correct their problems, rendering union represen-
tation superfluous. Of course, this inference is rebuttable.
Uarco Inc., 216 NLRB 1 (1974). However, Respondent
failed to introduce any credible rebuttal evidence. Ac-
cordingly, I find that Respondent interfered with its lab-
oratory 'employees' Section 7 rights when it solicited
grievances. In addition, by remedying complaints while
the organizing campaign was in progress, the Respond-
ent clearly intended to impress employees with the futili-
ty of supporting the Union. Such practices, however sa-
lutory to the employees, violate Section 8(a)(1) of the
Act. J. P. Stevens &' Co.,, 247 NLRB 420 (1980).
2. Fall 1981 meeting conducted by Michael
Chiaramonte
Paragraph 5(h) of the complaint charges Michael
Chiaramonte with soliciting grievances and granting ben-
efits to maintenance and engineering employees in the
fall of 1981. In support of this contention, engineering
and maintenance employee, ]Lawrence Kearney, testified
about a meeting attended by his coworkers with manage-
ment representatives, Dr. Chiaramonte, Michael Chiara-
monte, and Departmental Supervisors Tom Bradley and
James Morris. According to Kearney, the employees
were disgruntled and requested their supervisors to ar-
range a meeting with Dr. Chiaramonte.
The doctor did appear, spoke briefly, and departed.
Michael Chiaramonte then entered into a discussion with
Bradley and Morris, who advised him that the workers
needed uniforms , that, the tools provided by Respondent
were inadequate, and that materials necessary for repairs
were difficult to obtain. Chiaramonte told the employees
that a revised pay scale was being considered and that he
would look into providing uniforms and tools. Some
time after this meeting, each employee received five sets
of uniforms.
As discussed above, where an employer for the first
time solicits grievances in the course of a union cam-
paign, a rebuttable inference arises that the employer is
curing the problems raised to convey to the employees
that resort to a union is unnecessary. Reliance Electric
Co., supra. In determining whether this inference was
warranted, the Board considers whether the employees
or the employer initiated the contact. See Montgomery
Ward & Co.,, 224 NLRB 104 (1976), cited in Hayes-Albion
Corp., 237 NLRB 20 (1978). Here, the evidence shows
that the employees requested the meeting, one of many
which had been held in this department. Moreover, there
is no evidence that Michael Chiaramonte did anything
but listen to the two supervisors who served as spokes-
men to convey the concerns of their workers. Therefore,
I conclude that the portion of paragraph 5(h) of the
complaint which alleges that grievances were unlawfully
solicited is proved and should be dismissed.
The part of paragraph 5(h) which charges the Re-
spondent with unlawfully granting benefits to employees
calls for a different result. In Montgomery Ward & Co.,
supra, the Board held that where an employer, in re-
sponse to unsolicited requests, grants benefits to its work-
ers in order to communicate to them that the union is
unnecessary, that conduct interfered with their free exer-
cise of Section 7 rights. In this case, although the em-
ployees requested the meeting with management, the
record shows that their prior requests for uniforms had
long gone unheeded. Shortly after this meeting, which
occurred while the union campaigns were in full swing,
the workers received the uniforms. This sequence of
events supports an inference that here, as in Montgomery
Ward, Respondent attempted to unduly influence its em-
ployees in violation of Section 8(a)(1) of the Act.
3. The January 24, 1983 meeting conducted by Dr.
Francis Chiaramonte
Debra Horn and Robin Cupp, both currently em-
ployed by the Hospital, testified with great specificity
about meetings with Dr. Chiaramonte in the latter part
of January, both of which were conducted in a similar
way. Dr. Chiaramonte began by asking the employees to
describe any problems or grievances. Responding to his
invitation, employees mentioned a variety of matters.
Thereafter, the doctor addressed each issue raised. Cupp
recalled that at the meeting she attended questions con-
cerning pay inequities and the no-solicitation rule were
discussed. Dr. Chiaramonte assured the employees he
would look into the pay inequity problem, but cautioned
that he was unsure if it could be corrected at that time
due to the Union's presence. Horn testified that employ-
ees at the meeting she attended asked questions concern-
ing overtime, benefits for part-time employees, and the
inadequate supply of pillows and bed linens. Dr. Chiara-
monte responded to each inquiry and, in particular, guar-
anteed that the pillow and linen problem would be reme-
died.
As mentioned above, Dr. Chiaramonte maintained that
he had always held meetings to air employee grievances
as' part of an ongoing administrative process since the
Hospital's inception. I conclude here, as I did previously,
that there was no such process. It is evident from the
record that the union campaign was the impetus for
these meetings. Accordingly, I find that Dr. Chiara-
monte's solicitation of grievances at the January 24 meet-
ing as described by Cupp is precisely the conduct pro-
scribed by the Act. Horn testified to' another meeting in
January at which the doctor engaged in conduct identi-
cal to that which I have found unlawful. While it is not
alleged in the complaint that Dr. Chiaramonte's solicita-
tion of grievances at this latter meeting, or his subse-
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quent grant of benefits , constituted unfair labor practices,
I am satisfied the matter was fully litigated at the hearing
and that it is closely related to the subject matter of the
complaint. Justak Bros. & Co., 253 NLRB 1054, 1082
(1981), enfd. 664 F.2d 1074 (7th Cir. 1981). I conclude,
therefore , that Respondent unlawfully solicited and rem-
edied grievances on two occasions in January.
4. The January 1982 meeting conducted by Michael
Chiaramonte
On still another occasion in January 1982, Michael
Chiaramonte joined by Margaret Miller solicited griev-
ances at a meeting with approximately 20 transporters
and patient care assistants . Uncontradicted evidence
about the meeting was offered by employees Yolanda
Shultz and Charlotte Pickerell . They testified that Chiar-
amonte explained that he was there to listen to their
complaints . He then asked each employee to state her
name, the department she worked in, and the nature of
her grievance . After identifying herself, Shultz stated
that she needed a new lab-specimen carrier since the one
she used caused spillage. She also asked for a key to the
psychiatric ward so that her deliveries could be made
without delay . Pickerel] asked for some mirrors in the
hallways and gunnies in the operating room department.
Chiaramonte guaranteed that the mirror problem would
be corrected immediately and mirrors were installed the
next day . Within the same week , Shultz received the key
and carrier she requested.
Once again , Respondent contends that this meeting
was not unique . Suffice it to say, I reject this defense.
Respondent also contends that the improvements made
at the employees ' request were designed to improve
safety conditions and increase efficiency , and they were
neither related to the terms and conditions of employ-
ment, nor granted to undermine the Union's campaign.
In support of these contentions , Respondent cites Stanley
M. Feil, Inc., 250 NLRB 1154, 1164-65 (1980), and Essex
Wire Corp., 188 NLRB 397, 406 ( 1971). Its reliance on
these cases is wholly misplaced , for in both the benefits
were not newly granted but were continuations of acts
began prior to the advent of the union campaign. Here,
the evidence is conclusive that Respondent solicited
grievances not as part of an ongoing process but as a
device designed to persuade employees that their griev-
ances could be resolved without a union.
D. Board Processes (paragraph 5(g))
In support of the allegation that in early November
Greenway and Personnel Director Culp attempted to
interfere with Board processes, by telling employees that
they could not be excused from work to comply with
the Board's subpoena, the testimony of former dietary
aide, Norma Norwald, was offered. She stated that after
receiving a subpoena requiring her appearance at the
Board's representation hearing, she attempted to obtain
permission to attend from her immediate supervisor,
Harry Branham. As he was absent, his secretary sent
Norwald to see Greenway. Greenway purportedly in-
formed her that she did not have to comply with the
subpoena , for it was not legal ; not like one from a regu-
lar court. Greenway continued that Norwald could
attend the hearing only if she was not scheduled to
work . When Norwald insisted that she was going to
honor the subpoena, Greenway advised her to check
with Culp. Culp gave Norwald much the same advice,
asserting that the subpoena was not legal , that Norwald
did not have to attend the hearing , and that she would
have to work if she was scheduled to do so. However,
Culp added that she had a right to attend and that her
only obligation would be to notify her supervisor of her
intended absence.
Greenway and Culp offered accounts of this incident
which are at wide variance with that of Norwald's.
Thus, Greenway stated that Norwald appeared in her
office in an agitated condition insisting that she did not
want to go to the hearing and did not know what they
would do to her if she failed to appear . In response,
Greenway stated that because she had not seen the sub-
poenas she was unsure what Norwald 's obligations were,
but that they could consult with Culp. Greenway con-
ceded that she did tell Norwald that she may not have
been legally subpoenaed . Greenway accompanied Nor-
wald to Culp's office where she heard Culp also tell
Norwald that, to her knowledge, the subpoena was not
legal and that if she did not attend the hearing , she could
not be punished. Greenway, corroborated Norwald's tes-
timony with respect to Culp's statement that she had a
right to attend the hearing as long as she notified her su-
pervisor of her intended absence.
Culp gave the following version of her exchange with
Norwald: she assured Norwald there was no problem
with her going to the hearing so long as she made ad-
vance arrangements with her supervisor. When Norwald
was not assuaged by these remarks , Culp asked : "I don't
understand why you are upset." Norwald responded: "I
can't have off -I can't go to the hearing unless I'm off."
Culp then explained that the subpoena was issued by the
NLRB and that the Hospital would permit her to attend.
After Norwald left her office, Culp contacted the dietary
department and determined that there would be no prob-
lem with Norwald's absence on the date of the hearing.
Thereafter, as Greenway and Culp were walking down
the hospital corridor, they encountered Norwald telling
a union organizer "they are not going to let me go."
Culp interjected that this was not true, that she had al-
ready arranged for Norwald to be excused to attend the
hearing.
The General Counsel contends that by Greenway's ini-
tially telling Norwald that she could not attend the hear-
ing if she was scheduled to work, and advising her, as
did Culp, she could disobey the subpoena, Respondent
violated the Act. Respondent counters that Norwald's
testimony is totally untrue; that Respondent made no
effort to prevent her from attending the hearing and in-
stead facilitated her appearance there.
Norwald testified in a somewhat belligerent manner
which may be explained perhaps by the fact that Re-
spondent fired her for having caused a work stoppage at
the Hospital. Notwithstanding her hostility, certain criti-
cal segments of her story appear to be genuine. For ex-
ample, Greenway impliedly denied that she told Nor-
SOUTHERN MARYLAND HOSPITAL 1357
Wald she could not attend the hearing if she were sched-
uled to work. Yet, Culp herself could not explain why
Norwald continued to to be apprehensive even after
Culp assured her she could attend if she chose to do so.
If Greenway told Norwald she could attend only if she
had the day off, then her apprehension is explicable. Fur-
ther, Greenway confirmed Norwald's assertion that Culp
told her the subpoena was not a legal one and that she
was free to disobey it. When two of management's chief
lieutenants suggest to an employee that it is unnecessary
to comply with the Board's processes, that employee rea-
sonably may assume it might not be in her best interests
to attend a hearing on behalf of the Union. It is true that
Culp subsequently assured Norwald she could appear at
the hearing. However, this does not negate the fact that
at the outset she and Greenway took contrary positions.
Their initial advice to Norwald that she was not legally
bound to honor the subpoena and could not appear if
there was a work conflict, was wholly inconsistent with
the requirements of Section 8(a)(1) of the Act. See An-
thony L. Jordan Health Center, 235 NLRB 1113, 1119
(1978).
E. Interrogation (paragraph 5(o))
In January 1982, at a supervisors' meeting, Assistant
Chief Laboratory Technician Hartzfeld received some
antiunion pamphlets for distribution to employees under
his supervision. When he returned to his laboratory from
that meeting, he encountered Yolanda Shultz, a known
union advocate who was making a delivery. Hartzfeld
asked her opinion of unions and whether she did not
think they caused strikes. Another employee who over-
heard his remark volunteered that "unions weren't neces-
sarily a bad thing and did not invariably cause strikes."
This was the extent of the conversation upon which the
allegation in the complaint is based.
Section 8(a)(1) of the Act does not prohibit all ques-
tioning of employees about their union sympathies or ac-
tivities. Rather, in assessing whether a question posed to
an employee oversteps the boundary between lawful and
unlawful inquiry, the test is whether that question could
reasonably coerce or intimidate. Here, if by no other
means than wearing a union button, Shultz proclaimed
herself a union advocate. Therefore, it can hardly be as-
serted that she was reticent to advertise her prounion
stance. It follows that "since [the employee] was openly
prounion . . . the questions were not designed to ascer-
tain [her] union sympathies." Madison Kipp Co., 240
NLRB 879, 884 (1979). In these circumstances, Hartz-
feld's questions, which sounded as if they were posed in
an offhand manner and not as a coercive or intimidating
quest for information, did not offend the strictures of
Section 8(a)(1).
ing agent. O'Donnell replied by way of example, that if
employees wanted a day off, they would have to be ar-
ranged through the shop steward. She followed this
remark by asking whether the employees would not
prefer to deal with management directly rather than
going through this other channel.
O'Donnell remembered a meeting with transporter em-
ployees where an inquiry was' made about benefits, and
the subject of a shop steward arose; but she cast this inci-
dent in a more benign light than did Pickerell. Thus, she
recalled stating that the Union would negotiate employ-
ees' benefits and that if an employee desired something
other than what the contract provided, she would have
to consult with the Union, possibly through a shop stew-
ard. She also explained that if a conflict arose as to time
off beyond that provided in the contract, the matter
would have to be resolved by the shop steward and a
representative of management.
I do not believe that Pickerell purposely misstated
what she believed she heard. I do think she may have
missed some of O'Donnell's message or forgotten the
context in which the remarks arose. To overlook or mis-
contrue a few of the many comments which may be
made during the course of a meeting is altogether
human. I believe that happened here. The words which
Pickerell apparently missed are critical to finding that
O'Donnell did not act improperly. O'Donnell explained
that she had attended numerous supervisory meetings
with a consulting firm hired by Respondent, Modern
Management, at which the nature of supervisory conduct
was discussed.? Just prior to her exchange with Picker-
ell, she had returned from such a meeting with antiunion
literature in hand. It is altogether likely that when a
question arose concerning employee benefits, O'Donnell
gave an answer which reflected her understanding of
management-labor relationships once a contract was
signed. In other words, her answer to Pickerell was an
interpretation of what could occur in the event of a con-
tractual dispute, consistent with the provisions of Section
9(a) of the Act." Therefore, I conclude she said nothing
improper and decline to find that her remarks violated
the Act.
G. Restricted Access to the Cafeteria (paragraph 5(q))
The allegation in paragraph 5(q) of the complaint con-
cerns Dr. Chiaramonte's separate confrontations with
employees Douglas Souris and Thomas Mahaffey in the
cafeteria.
Souris testified that on February 25, while he was
having lunch in the cafeteria with three union agents,
Dr. Chiaramonte approached with Security Supervisor
Barry Powers, and asked him if the union officials were
rightfully there. Powers answered that as long as the or-
F. Threatened Loss of Benefits (paragraph 5(p))
Charlotte Pickerell , a transporter , described a brief
conversation with her supervisor, Operating Room Di-
rector Marjorie O'Donnell, as follows . On February 10,
1982, O'Donnell handed Pickerell an antiunion pamphlet.
After reading it, Pickerell asked how employees might
be affected if the Union became their collective-bargain-
7 A report "Pressures In Today's Workplace," issued by the Subcom-
mittee on Education and Labor, House of Representatives, December
1980, (Vol 74-75, 901-125) stated that from 1977 to 1979, Modern Man-
agement assisted employers in 696 antiunion campaigns and defeated the
unions in 647 instances or 93 percent of the time See also St Francis
Hospital, 263 NLRB 834 (1982)
S Sec 9(a) provides that a bargaining agent has a right to be present in
resolving contractual differences with management
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganizers had a Hospital employee with them they could
remain. The doctor then told the union officials that
there was not enough room in the cafeteria for the em-
ployees and that if they were just going to sit there, he
would appreciate their leaving. He then suggested that
Souris finish his lunch and leave too. Souris explained
that at that time the tables immediately surrounding him
were empty although other employees were in the cafe-
teria. After Dr. Chiaramonte made his request, Souris
finished his lunch and departed, leaving the union offi-
cials in the cafeteria.
Mahaffey, presently employed as 'a physical therapist
at the Hospital, also related that after distributing the
Solid Rock, he entered the cafeteria and joined the three
union organizers at a table. After chatting for a bit, he
entered the food line whereupon Dr. Chiaramonte
grabbed his arm and told him there was "no room in the
cafeteria for your damn union meetings" and instructed
him to tell the Union that "this is not their meeting
place." These statements were made loudly within ear-
shot of at least six other persons. Immediately after this
encounter, Mahaffey went to his department and com-
mitted to writing precisely what the doctor had said.
Dr. Chiaramonte does not deny these incidents but put
them into a less hostile context. He explained that his
purpose was to prevent crowding of the cafeteria and,
therefore, he advised both Souris and Mahaffey that they
and the union representatives should not take up space
that was badly needed. He further maintained that he has
on other occasions asked nonunion visitors and guests to
leave the cafeteria in order to lessen overcrowding.
While the Union's right to confer with employees in
areas of the Hospital which are strictly dedicated to pa-
tient care are properly circumscribed, the Supreme
Court has made it clear that no such restraint exists on
union solicitation in other areas such as a cafeteria,
which is essentially operated for employees, exists as
their primary gathering place, and is almost wholly unre-
lated to patient care. See Beth Israel Hospital v. NLRB,
437 U.S. 483 (1978). Of course, special circumstances
may arise which justify the curtailment of the Union's
protected activities even in nonpatient care areas. Here,
however, the Hospital failed to meet its burden of show-
ing any special circumstances. There was no evidence
that the employees' conferences with the union agents
caused any disruption to patient care or even infringed
upon other employees' use of the cafeteria. Dr. Chiara-
monte suggested that he was not denying the Union
access to the cafeteria, so much as imposing some brief
limitations upon it because of congestion in the dining
area. His testimony was contradicted by the much more
specific recollection of Souris, that there were empty
tables surrounding the one which he and the union offi-
cials occupied. Further, Dr. Chiaramonte's assertion that
he urged other` visitors to ' quit the cafeteria was offered
gratuitously and was not corroborated. The ample evi-
dence in this record of the doctor's animus toward the
Union leaves no doubt that he pressed for the Union's
quick departure not from a genuine desire to cure con-
gestion in the cafeteria, but out of a more fundamental
desire to get rid of their loathed presence . Since Re-
spondent failed to provide any satisfactory explanation
for its unwillingess to countenance the continued pres.
ence of the Union in the cafeteria, I find that even these
brief intrusions on the employees' and the Union's access
to the cafeteria violated Section 8(a)(1).
H. Threat of Discharge (paragraph .5(r))
Laboratory employees Cupp, Horn, and Cox, all key
union proponents, testified consistently as to a threat
communicated to them by their supervisor," Inez Berry.
According to the young women, Berry called them to-
gether to inform them of what she had learned at a
luncheon with Laboratory Chief Ed Cruz and Assistant
Lab Chief Hartzfeld. She recounted that Cruz had
warned that if the Union lost the election, they would
lose their jobs. Berry acknowledged attending a lunch-
eon with Cruz and' speaking with the three lab techni-
cians on her return. However, she did not recall either
that Cruz made any threats about firing prounion em-
ployees or that she had informed the women that he had.
Instead, Berry maintained that she said something to the
effect that "[i]f they [the laboratory technicians] orga-
nized on work time . . . . I might have to report it to
my chief tech Ed Cruz." Hartzfeld and Cruz supported
Berry's testimony by denying that Cruz or anyone else at
the luncheon alluded to job losses of union supporters.
Cruz did concede that there was some discussion of the
union campaign at the luncheon.
Resolving the question posed by the complaint, that is,
whether Berry threatened employees with discharge be-
cause of their support for the Union, requires determin-
ing whether the General Counsel's or the Respondent's
witnesses were the more credible. In making this deter-
mination, I note that Cupp, Horn, and Cox, were refresh-
ingly forthright and candid witnesses , who gave not the
slightest reason to suspect their versions of this matter.
This is not to say that I found Berry to be ,a dishonest
person. However, she was a first-line supervisor who
worked closely and harmoniously with the three techni-
cians under her charge. Her supervisory status was not
clarified until management advised her of that fact
midway through the union campaign. In other words,
there was not a bureaucratic gap separating her as a
member of management from the other laboratory em-
ployees. Further, she acknowledged liking and getting
along with the three women. I am certain , given the re-
lationship among them, that the witnesses for the Gener-
al Counsel would not malign Berry by. attributing a
threat to her if it had not been made. Further, I.note,
that Berry had only a vague recollection of the luncheon
conversation. Her recall of the meeting with the three
employees just after the luncheon was similarly dim., Had
there not been some mention of the Union at the lunch-
eon it- is unlikely that Berry would have convened a
meeting of employees immediately thereafter. Given her
personal sympathies with Cupp, Horn, and Cox, I infer
that Berry's evasiveness at the hearing was not the result
of a faulty recollection, but stemmed from her need to
accommodate the interests of her employer. For the
foregoing reasons, I conclude that Berry did communi-
cate to the laboratory technicians a threat that they
would be fired as alleged. Section 8(a)(1) is ,clearly vio-
SOUTHERN MARYLAND HOSPITAL 1359
lated when as here employees are threatened with unfa-
vorable consequences as a result of their union activities.
Accordingly, I find merit in the allegation in paragraph
5(r).
I. Disciplinary Actions Against Patricia Vass
On September 30 and December 28, 1981, Director of
Nurses Margaret Miller, issued written reprimands to Pa-
tricia Vass. Paragraphs 7 and 8 of the complaint allege
that these warnings were disparate and discriminatory
applications of !Respondent's no-solicitation rule which
were issued to Vass in violation of Section 8(a)(3) and
(1) of the Act.
The incident giving rise to the first reprimand, a
verbal counseling report dated September 30, 1981, was
described by a nurse, Elizabeth Wustner.' While making
her rounds on October 1, Wustner returned to the nurses
station in her department to obtain medication for a pa-
tient. As she approached the station, she observed a
nurse not known to her (Vass) looking at a departmental
time roster which lay open on the desk top. When
Wustner asked Vass what she was doing, she replied that
she wanted to find out how many registered and practi-
cal nurses were on the roster. Wustner then noticed
Vass' union button and asked if she was gathering this
information for the Union. Vass admitted her union affili-
ation, but insisted that the information was for her per-
sonal use. Removing the roster from Vass' view,
Wustner stated she had no authority to provide the re-
quested material and suggested that Vass return later to
speak with the head nurse , McCormick. Their exchange
lasted no more that 4 or 5 minutes. Before Wustner's
shift ended, she mentioned the incident to McCormick,
who asked for a description of the visitor. On hearing
Wustner's description, McCormick exclaimed, "that's Pat
Vass and she is with the Union." Several days later,
McCormick asked Wustner to prepare a written state-
ment of the encounter and submit it to Miller. Based on
Wustner's account , Miller issued a verbal counseling
report to Vass.
Approximately 6 weeks after receiving this first repri-
mand, Vass again was disciplined under the following
circumstances. On December 17, 1981, while a pharmacy
technician, Hanaa Malaty , was working a night shift, a
call came asking that she serve as a translator for an
Arabic patient. Later, while making her regular rounds,
she reported to the patient's room and served as a trans-
lator for the nurses, one of whom was Vass. As Malaty
and Vass left the patient's room together, Vass asked her
for a list of telephone numbers of pharmacy employees.
Malaty agreed to bring it to Vass on her next round. As
promised, Malaty delivered a copy of a paper titled
"Disaster Fan-Out Call Sheet" which listed the tele-
phone numbers of pharmacy employees. When Malaty
returned to the pharmacy department after completing
her rounds, she mentioned to a pharmacist, Connie Ran-
9 Vass was no longer employed by Respondent on the date of the
hearing and was not called by the General Counsel to testify to the per-
sonnel actions described herein. However, the Board holds that where al-
legations of unlawful discrimination against employees are sustained by
the record, the testimony of the alleged discnminatee is not a sine qua
non for relief Burgess Construction Co., 227 NLRB 765 fn. 5 (1977).
court, that she had given her fan-out sheet to a nurse.
Although Malaty had never been told that the sheets
were not for circulation, Rancourt chastised her for
giving the list to Vass. Rancourt asked Malaty to identify
the nurse and upon hearing the description, stated that it
was Vass, that "she was with the Union and that she
would call everyone about the Union." t a
Six days after Vass obtained the telephone list, Stanley
Sherman, director of pharmacy, sent an incident report
to Miller which coomplained that Vass should not have
sought the fan-out sheet which was a confidential docu-
ment. Based on Sherman's report, Miller prepared a writ-
ten reprimand dated December 23, 1981, which read:
On September 30, 1981 I issued a warning to you
regarding your interruption of the work of an em-
ployee through conversation while she was on duty.
Another situation has arisen where you interrupted
the work of an employee in the Pharmacy while she
was on duty. I am now making this an official repri-
mand warning you that any further interruptions of
employees on duty time may result in suspension
and termination.
Vass acknowledged receipt of the reprimand, but pro-
tested the fact that she was denied union representation
during her interview with Miller, Subsequently on Janu-
ary 11, 1982, Sherman submitted to Miller an amended
incident report in which he retracted his earlier assertion
that the telephone list was marked confidential. He nev-
ertheless insisted that it was given out contrary to phar-
macy department policy and that an employee was inter-
rupted during the course of her duty. Therefore, Miller
saw no need to amend her reprimand to Vass.
The General Counsel contends that the disciplinary ac-
tions taken against Vass were discriminatory in nature
and that she was treated disparately for conduct which
had not previously been considered worthy of repri-
mand. Respondent argues, to the contrary, that she was
properly disciplined for interfering with the work of
other employees. The mere proffering of an ostensibly le-
gitimate business justification for imposing discipline does
not, of course, end the inquiry for a determination must
be made as to whether the reasons offered are genuine or
pretextual. If those proffered reasons are a mere litiga-
tion ploy or were not, in fact, relied on, then the deter-
mination of pretext concludes the inquiry. Marathon Le-
Tourneau Co. v. NLRB, 669 F.2d 248 (5th Cir. 1982).
Here, Respondent's asserted reasons for issuing the warn-
ings to Vass do not withstand scrutiny, leaving no doubt
that they were relied on in an attempt to legitimize pa-
tently discriminatory actions.
At the outset, the General Counsel showed, as it must
to establish a prima facie case, that Vass was a well-
known union activist: she openly wore union buttons,
was a member of the Union's organizing committee, and
distributed union literature. Indeed, Vass was specifically
identified as a union adherent by participants in both of
10 Approximately I week after this incident, Malaty took sick leave for
some 6 weeks . Shortly after her return , she received a written reprimand
for her role in this episode.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the incidents for which she was disciplined. Further, the
General Counsel demonstrated in its case-in-chief that
Respondent harbored a great deal of hostility toward the
Union as well as toward those who worked in its behalf.
The numerous violations of Section 8(a)(1) which have
been found above graphically illustrate the nature of Re-
spondent's animus.
In the counseling report issued to Vass for her first al-
leged intrusion, Miller cited as the cause for the disci-
pline an "infraction of Hospital Rule or Regulation." By
this, the General Counsel understood Respondent to be
referring to its no-solicitation rule which stated: "In
order to avoid disruption of patient care, employees will
not solicit for any purpose during working time, nor may
they distribute literature for any purpose during working
time or in patient areas."110 The record makes clear that
this rule was honored more in the breach than the ob-
servance. The General Counsel introduced extensive evi-
dence that employees frequently solicited for a variety of
purposes during working hours and in working areas.
The record is replete with instances of employees openly
selling raffle tickets, cookies, and cosmetics. They signed
petitions and took orders for a variety of goods from one
another and from supervisors; they visited with friends
and patients on different floors and in other departments.
Yet, prior to the reprimand issued to Vass, Respondent
had never given the slightest rebuke to any employee for
violating the no-solicitation rule. Compared to the
amount of time that others spent soliciting, Vass' con-
duct on the two occasions at issue here was relatively in-
nocuous.
Respondent's overreaction to Vass' brief encounter
with Wustner was so disproportionate to the offense as
to demonstrate its pretextual nature. Thus, Respondent
attempted to portray Vass' exchange with Wustner as an
act of harassment worthy of condemnation. Were I to
stretch Wustner's testimony to the limits of belief, I
could not find any grounds to say that Vass harassed
her. It was Wustner who initiated the conversation with
Vass while she was simply looking at a paper in plain
view. Prior to Vass' appearance on the scene, the most
casual observer apparently could have examined this
sheet at will. Further, Wustner admitted that it also was
posted on the conference room wall. Moreover, when
Wustner asked Vass to return at another time, Vass made
no protest and did not linger thereafter. Further, judging
by the statement on the incident report, "Assigned
Lunch half hour should be taken in cafeteria or in con-
ference room," Miller knew that Vass was on her break
when Wustner met her.
From all of the above, it is abundantly clear the only
reason that Wustner reported her encounter with Vass
was because she recognized that she was a union propo-
nent. It is even more clear that the only reason Miller
converted this minor incident into a disciplinary matter
was because she, too, knew of Vass' union adherence.
Respondent's willingness to view Vass' conduct in the
worst possible light is again reflected in the reaction to
her request for a pharmacy department telephone list.
i i This no-solicitation rule subsequently was revised with the approval
of the Regional Office in accordance with Board law
The reason given for this second warning-that is, for
"interrupting the work of an employee in the pharmacy
while she was on duty"-was as disingenuous as the
first. The evidence as to Vass' exchange with Malaty
shows even more clearly here than in the first incident
with Wustner that there was no disruption of Malaty's
work. If Sherman or Miller had been less intent on pe-
nalizing Vass because of her union adherence and more
intent in seeking out the facts, they could easily have de-
termined that there was no notation on the fan-out call
list requiring confidentiality. Indeed, it is difficult to
imagine how a telephone listing, distributed to the 23
persons whose names and telephone numbers appear on
it, could be kept secret. Moreover, Malaty -continued to
work at the Hospital a week after the incident occurred.
Sherman and Miller could have consulted with her to as-
certain the truth of the matter if they had so desired.
Miller suggested at the hearing that Vass' behavior in
the Malaty episode was an infraction of her job descrip-
tion; specifically, that she did not discharge her duties to
her patients and interrupted the work of others. There
was nothing in the job description, as far as I could de-
termine, which was applicable to this incident. What is
more, even if her job description could be said to apply
here, there was nothing in her conduct which could be
characterized as a failure to discharge her duties or an
interruption of the work of others. As Malaty testified
with painstaking exactness, she and Vass were on their
way out of a patient's room when Vass exchanged a few
words with her. Malaty returned with the telephone list
while on her regularly scheduled rounds. To see in these
events any disruption of Vass' performance or Malaty's
surely is a figment of litigation.
There can be no doubt that Miller would never have
given a second thought to Vass' behavior were it not for
her role as a principal union activist. By disciplining
Vass for conduct which it would have ignored were it
committed by others, because of her involvment in union
activities, Respondent violated Section 8(a)(3) and (1) of
the Act.
J. The Bonus
1. Statements regarding the denial of the bonus
(paragraphs 5(i), (j), and (k))
At the close of 1980, Respondent paid end-of-the-year
bonuses totaling $215,950 to all of its 1100 employees in
amounts ranging from $100 to $500. This was the first
time in the Hospital's 3-year history that an award of this
nature had been granted. As noted previously, some 6
months later, in the late spring of 1981, five unions began
organizational drives at the Hospital. The various unions,
and particularly the OPEIU, maintained high visibility
among the hospital employees, waging active campaigns.
Respondent countered with a vigorous offensive of its
own. Toward the close of 1981, the question of whether
a bonus would be granted again was a matter of wide-
spread concern among Hospital staff. Respondent paid
no bonus in 1981 to rank-and-file hospital employees.
The complaint alleges that three principal members of
management made clear to employees at times when em-
SOUTHERN MARYLAND HOSPITAL 1361
ployee speculation and concern was at its peak, that the
bonuses were being withheld as a consequence of the
unions' presence on the scene.
Norma Norwald described an encounter with 'Green-
way in early January at which time a possible job open-
ing as a dialysis technician was discussed. Greenway pur-
portedly told Norwald that her full-time position in the
dietary department precluded additional part-time work,
since it would generate overtime costs to the Hospital.
According to Norwald, Greenway explained that creat-
ing a new dialysis unit, as Norwald had suggested, was
impossible because of the Union's presence. She gratu-
itously added that the Union's organizational campaign
was the reason that employees did not receive their
bonus.
Greenway flatly denied that any such exchange oc-
curred. Instead, Personnel Director Culp said that it was
she who had such a conversation with Norwald about a
dialysis technician's job. But Culp denied that she made
any comments about unions during their conversation.
The issue here is one of credibility. On the one hand,
Norwald, as I noted elsewhere in this decision, was a bil-
ligerent witness who was terminated by the Hospital for
cause. Greenway, on the other hand, was a sophisticated,
even suave witness. It is important to bear in mind,
moreover, that Greenway was employed by Respondent
as a public relations officer, precisely because she was a
polished and knowledgeable community organizer. I find
it unlikely that a savvy person like Greenway would
make such an admission to Norwald, an employee who
proclaimed her loyalties by flaunting union buttons all
over her person. t 2 As further proof that Greenway's
version of their conversation should be credited, I note
that Norwald was confused in attributing to Greenway a
conversation which in reality, she held with Culp. As
personnel director, Culp was the logical person to dis-
cuss a job opening with Norwald, whereas Greenway
had no familiarity with such matters. If Norwald was
confused about who it was she spoke with, she certainly
could have been equally confused about what was said
during that conversation. I find therefore, that the Gen-
eral Counsel has failed to provide sufficient convincing
evidence necessary to sustain its burden of proving the
allegation in paragraph 5(i).
According to Mary Pigott, an admitting office clerk,
Greenway made a similar gaffe just prior to Christmas
1981. Greenway often passed through the admitting
office and exchanged greetings with the staff there. On
one such occasion in late December, Pigott asked Green-
way if she would tell her honestly whether they could
expect a Christmas bonus. Greenway replied, "Don't
count on it." When Pigott pressed for an explanation of
why the bonus would not be granted, Greenway pur-
portedly blamed the Union.
Greenway recalled her exchange with Pigott but gave
a different and more elaborate description of it. Thus, in
response to Pigott's question, she replied that she knew
"nothing about a bonus." She also remembered that an-
other employee asked whether they might get their
checks a day early prior to the Christmas holiday.
Greenway promised to look into this matter.
Two other persons who were present in the admitting
office at this time verified Greenway's version. Although
Virginia Baggett and Debra Barger were not clear on
precisely what was said, neither did they have any recol-
lection of Greenway mentioning the Union. Barger noted
that on former occasions, other employees in the admit-
ting office had suggested that the bonus was withheld
because of the union campaigns and thought that such a
remark might have been made at the time that Pigott
made her inquiry of Greenway.
Once again, the difficult task here is to sort fact from
fiction. In doing so, I observed that Pigott was not cal-
culating and purposely dishonest, she was, however,
naive and imprecise in her thinking. She was unable to
recall the names of any of the other women in the admit-
ting office and gave no other details about her conversa-
tion with Greenway, omitting any mention of remarks
about receiving checks early. In contrast, Greenway, as
mentioned previously in connection with the Norwald
incident, was an astute woman, schooled in political re-
alities. At the height of the union campaign and at a time
when the Hospital was awash with rumors about the
bonus, it is inconceivable that she would have made such
a damaging slip in front of no fewer than four witnesses.
Accordingly, I conclude that the General Counsel has
failed to present compelling evidence sufficient to sustain
its burden of proving the foregoing allegations.
Paragraph 5(j) of the complaint avers that Respond-
ent's comptroller , Wesley Melvin, told Jacqueline Diggs,
a data processing employee, that no bonus would be
granted in 1981 due to the Union. This allegation is
based on the testimony offered by another current em-
ployee, computer operator, Ray Westfield. She stated
that in December, Melvin assured her the employees
would receive a Christmas bonus. However, in the first
week of January, Melvin retracted this assertion. Thus,
Westfield overheard Diggs asking Melvin if employees
would receive a Christmas bonus. Melvin answered that
no bonus would be given because of the Union, but it
might be granted after the election. Melvin adamantly
denied that he drew a connection between the bonus
being withheld and the Union. Respondent urges that I
discredit Westfield because of an alleged inconsistency
between her oral testimony and her pretrial affidavit.
Thus, Respondent stresses that at the hearing, Westfield
testified that Marilyn Williams, another computer clerk,
did not overhear the conversation between Diggs and
Melvin because she was 8 feet away at the time. Howev-
er, in her pretrial affidavit she stated that Melvin ad-
dressed the three employees in the computer room:
Diggs, herself, and Williams. I do not find this minor
variation as significant as Respondent suggests. Given
Westfield's status as a current employee, her testimony
contradicting that of her superior's deserves great
weight. i 3 In her pretrial affidavit, Westfield indicated
18 For this same reason, I credit Westfied's uncontroverted statement
that when she was interviewed for her position about January 20, 1981,
12 The record indicates that Norwald even wore such buttons as ear- the former data processing manager told her that a Christmas bonus was
rings among the Hospital's benefits.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Williams was present during Melvin's exchange with
Diggs. But to be present does not necessarily mean that
one hears what is said. It is altogether plausible that
Miller, who was seated 8 feet away from Diggs in a
noisy room would not have heard Melvin who admitted-
ly spoke in soft tones.
Melvin denied making the comment Westfield attrib-
uted to him, but I found him to be less than perfectly
candid when testifying about matters which he knew
were contrary to his employer's interests . For example,
he was hesitant and evasive when cross-examined about
conversations with Dr. Chiaramonte regarding the
Union. Although he admitted having frequent exchanges
with the doctor about the Union, he refused to indicate
whether or not Dr. Chiaramonte had ever revealed his
views about the employees' concerted activity. Given
my observations of Dr. Chiaramonte, I find it impossible
to believe that he would not have conveyed to one of his
trusted chief executives his personal opinions about the
Union, when on so many other occasions, as documented
above, he was openly scornful and hostile toward it.
Thus, Melvin's resistance to answering any question
which might confirm Dr. Chiaramonte' s antiunion atti-
tudes reveals the extent to which this loyal member of
management was willing to go to protect his employer.
Melvin's reluctance to answer questions regarding the
bonus forthrightly also was revealed in his denying that
he spoke to others about that issue. Thus, he flatly and
expressly insisted he never discussed the bonus with any
employee. Yet, his right-hand man, George Bowdren,
admitted that on two occasions in early and mid-Decem-
ber, he suggested to Melvin that advance planning was
needed so as to avoid a last-minute rush if the bonuses
were to be awarded. According to Bowdren, Melvin
agreed with him.
In light of these reflections, I conclude that Melvin did
tell Diggs that the Christmas bonus in 1981 was withheld
due to the Union's presence, as Westfield reported. Fur-
ther, I am convinced that former computer operator,
Marilyn Williams, accurately reported having seen a
memo from Melvin regarding a delay in issuing employ-
ees' W-2 forms pending a resolution of the bonus issue.
She also testified credibly about another conversation be-
tween Melvin and Bowdren. In Williams' words, Bow-
dren asked Melvin if Dr. Chiaramonte had decided how
much the Christmas bonus would be and when it would
be given. Melvin's reply was that "Dr. C hadn't decided
how much it was going to be." Respondent attempted to
impugn Williams' testimony without success. Her credi-
bility was established when it became clear that she ac-
curately identified the four employees who received bo-
nuses in 1981 and specified the precise amount each re-
cipient was awarded, although Melvin asserted it was im-
possible for her to have such knowledge.
The fourth and final count in this series of allegations
attributing unlawful statements about the bonus to super-
visors stems from conduct testified to by Lawrence
Kearney.
Kearney explained that he was upset by an incident
which had occurred in the cafeteria involving Dr. Chiar-
amonte, an apparent reference to the doctor's encounters
with Macaffey and Souris in January 1982. Consequent-
ly, he asked his supervisor, James Morris, in confidence,
to tell him candidly why the employees did not receive
their bonuses. Morris attributed the withholding to
"union activities at the shop."
Morris denied having made such a comment. Here too,
however, I credit Kearney's account. Throughout this
decision, I rely heavily on the testimony of employees
who served as witnesses while in Respondent's employ
and I do so again. In addition, I attach special signifi-
cance to the fact that Kearney came forward as a most
reluctant witness. The General Counsel secured his ap-
pearance only on the final day of the hearing. In justify-
ing his hesitancy to attend this trial, Kearney stated that
after testifying at the representation case hearing, he be-
lieved that he had been subjected to unfavorable treat-
ment. His demeanor convinced me that his apprehensions
were genuinely felt. In spite of his prior experience, he
testified in the instant hearing to the detriment of his em-
ployer. Consequently, I am convinced that Kearney was
not fabricating when he said that Morris attributed the
denial of the bonus to the presence of the unions.
Board precedent holds that employers are responsible
for the coercive statements of their supervisors, even
where the employer instructed its supervisors not to
make such statements. To avoid ' responsibility for unto-
ward remarks, the employer must neutralize their' impact
either by informing employees that supervisors had been
instructed not to make such remarks or by disavowing
them immediately after they are made. Red Oaks Nursing
Home, 241 NLRB 444 (1979), enf. denied on other
grounds 633 F.2d 503 (7th Cir. 1980); Big Three Industri-
al Gas Co., 230 NLRB 392 (1977), enfd. 579 F.2d 304
(5th Cir. 1978). Neither of the neutralizing factors re-
quired in Red Oaks are present in the exchanges de-
scribed above.14 Accordingly, I find that Respondent is
bound by Melvin's and Morris' statements tying the
denial of the 1981 bonus to the union campaign. Such
messages , which clearly conveyed to employees' that
support for the Union was at their economic peril, pose a
serious infringement on their right to be free of interfer-
ence and coercion in deciding whether they wish union
representation. Therefore, I conclude that these pro-
nouncements independently violate Section 8(a)(1) of the
Act. In addition, they must be factored into any consid-
eration of Respondent's motives in failing to grant a
bonus in 1981.
14 Respondent submits that even if Hospital supervisors made the state-
ments as alleged , such statements are, nonetheless , lawful, constituting
mere personal expressions of opinion that benefits are negotiable in the
event of a union victory In support of its position, Respondent relies on
Stumpf Motor Co., 208 NLRB 431 (1974); Federal-Mogul Corp., 232
NLRB 1200 (1977); Great Atlantic & Pacific Tea Co, 192 NLRB 6445
(1971), and Blue Cross, 219 NLRB 1 (1975). A cursory examination of
these cases reveals they are inapposite for the statement involved in, each
cited case was made by supervisors about the possible impact of collec-
tive-bargaining negotiations on employee benefits The remarks at issue
here were made without the slightest reference to a collective-bargaining
context.
SOUTHERN MARYLAND HOSPITAL 1363
2. Section 8(a)(3) allegations regarding the denial of
a regularly scheduled bonus
The remaining issue to be resolved in this case and one
which has the greatest significance for the employees as
well as Respondent is whether a bonus was withheld in
1981 in violation of Section 8(a)(3) and (1) of the Act.
The General Counsel maintains that Respondent intend-
ed to pay a bonus to its employees in 1981 , just as it had
in 1980, as a term and condition of employment , but de-
cided not to do so after the advent of the Union. The
Respondent contends that the 1980 payment was a one-
time gift intended to express Dr. Chiaramonte 's gratitude
to the staff for its support during a period of personal
family tragedy.
In supporting its position that the bonus was intended
to be a regular term and condition of employment, the
General Counsel relies not only on the statements made
by various management functionaries discussed above,
but also on references to the bonus in three documents
promulgated by Respondent. Each document in which
such a reference appears is examined below.
Six months after the first bonus was granted and sever-
al weeks after the Union's organizational drives began,
an annual bonus first was publicly announced as a hospi-
tal benefit in an advertisement which appeared in the
Washington Post on June 7 and 21, 1981. The ad, re-
cruiting nurses, contained the following announcement:
Excellent working conditions . Benefits include:
Fully Paid Life, Disability; Hospitalization & Dental
insurance; vacation; holidays; sick leave & bonus.
Respondent asserts that placing the words sick leave
and bonus together demonstrates that the reference in
the ad is not to a monetary bonus, but to a "sick leave
bonus day program." The sick leave benefit to which
Respondent alludes was designed in 1980 by Miller, with
Dr. Chiaramonte's approval , as a device to reward
nurses for unused sick leave time. Thus , for each 5 days
of sick leave not taken during a 6-month period , a nurse
could receive a paid day off at Miller's discretion.
The Respondent 's argument that the word "bonus" in
the newspaper advertisement was simply a shorthand ref-
erence to the sick leave bonus program is unpersuasive.
The word "bonus" has a commonly understood meaning.
Respondent could have no expectation that any reader of
the advertisement would regard that term as meaning
anything but a sum of money given in addition to an em-
ployee's usual compensation . It is noteworthy that each
of the other items listed in the advertisement are signifi-
cant benefits designed to be important and attractive in-
centives to prospective employees . In contrast , a bonus
sick day is a relatively minor incident of employment,
hardly in the same category as paid life insurance, holi-
days , or vacations.
Respondent also argues that the absence of any punc-
tuation between the "sick leave and bonus" shows that
the two must be read together. However, no good gram-
marian would advocate , as Respondent does here, that
any punctuation symbol is required between the next-to-
last and last word in a series. Respondent 's assertion that
it simply sought brevity in its advertisement and there-
fore used "bonus" instead of spelling out "sick leave
bonus day" also is spurious. A glance at the ad shows
that the word "bonus" was inartfully hyphenated and
that almost a whole line remains vacant after the syllable
nus." Respondent had ample space to add the single
word "day," if that had been its intention. t 5 Finally,
Culp's testimony that the ad was never intended to refer
to anything but a sick leave bonus day is unconvincing.
She would be unlikely to know Respondent's intent in
early June 1981, having just arrived at the Hospital at
the end of May. Her effort to style the 1980 monetary
award as a gift after hearing the evidence that it was
purposely labeled a bonus, suggests a greater devotion to
her employer than to the truth.1 s
The next piece of evidence upon which the General
Counsel relies is a leaflet titled "BENEFITS, BENE-
FITS, BENEFITS AND MORE, MORE, MORE" in
which an annual yearend bonus was listed as one of 14
benefits offered by Respondent to its nursing staff. Nu-
merous employees testified that they received this leaflet
with their paychecks; others saw it posted on Hospital
bulletin boards. Miller maintained that so far as she
knew, the leaflet was mailed solely to former nurses as a
recruiting device on or about July 7, 1981. She dis-
claimed any involvement in or knowledge of more wide-
spread dissemination in the Hospital.
Respondent cannot evade responsibility for the wide-
spread distribution of the memo. Too many employees
testified consistently as to their receipt of the leaflet in
the ordinary course of business and at a time when the
withholding of the bonus was not an issue. Respondent's
suggestion that it was circulated by a prankster, deserves
no serious consideration.'7 It is noteworthy that in list-
ing the various benefits offered by Respondent, Miller
did not refer to a sick leave bonus day but rather de-
scribed that program as "one free day, for each 5 days of
sick leave not taken in a six-month period." The annual
yearend bonus was listed as a separate and distinct em-
ployment benefit.
Respondent contends that Miller published the "Bene-
fits, Benefits, Benefits" leaflet on her own initiative,
without the approval of the Hospital administration. Ac-
cording to Miller, when the leaflet came to Dr. Chiara-
monte's attention approximately 1 week after it had been
disseminated, he became extremely angry at the inclusion
of the bonus and two other items which allegedly had
not received his advance approval. a s Significantly, the
18 Respondent 's arguments on this point are so untenable as to cast
doubt on the bona fides of its defenses to all other matters involved in
this suit.
is Culp was present in the courtroom throughout the trial before serv-
ing as one of Respondent's final witnesses
17 Some employees believed they received a copy of the "Benefits,
Benefits , Benefits" memo within their sealed pay envelopes However,
given testimony of two payroll clerks that they did not make such inser-
tions, it is unlikely that the memos were contained within those enve-
lopes. This does not negate the possibility that over the passage of time,
these employees simply forgot that the memo was distributed with their
checks but not inside the pay envelope The nurses who testified about
this matter were refreshingly candid I am certain they did not purposely
dissemble about this matter.
18 The other two items had to do with with a promise of flex time and
a complete annual physical.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doctor never corroborated Miller's testimony on this im-
portant matter. Even more significant is that in spite of
Respondent's alleged disapproval of Miller's action, not
one step was taken to correct any false impression the
leaflet might have created. In the absence of any dis-
claimer or recission of this leaflet, Respondent cannot
evade responsibility for its promulgation.
Further, in spite of Dr. Chiaramonte's purported dis-
pleasure with the inclusion of an annual yearend bonus in
"Benefits, Benefits, Benefits," Respondent publicized an
annual yearend bonus as a benefit in another document, a
brochure titled "Bringing Health Care Back To The
Hospital." Culp explained that the brochure was de-
signed for both in-house orientation and for recruitment
purposes. a 9 She was uncertain when the brochure first
came to her attention , placing it anywhere from August
through October. When she did notice it, she excised the
references to the annual yearend bonus, flex time and
free medical examinations , Not only was Culp uncertain
about when she first noticed the brochure, she also was
far from certain as to whether the brochure had been put
to use before it came to her attention. Her vagueness in
this matter was understandable since she admittedly was
not involved in or responsible for the recruiting semi-
nars. Although Respondent could have put this matter to
rest by calling two personnel employees, Dadisman and
Hokamp, who were more likely to have control over the
brochures, it chose not to do so.
The 1980 bonus may have been regarded by Dr.
Chiaramonte as an expression of gratitude to Hospital
personnel for their sympathy during a time of personal
tragedy.20 However, if it was solely a gift given during a
bereavement, as the doctor alleged, it should then have
come from the doctor's own funds and not from Re-
spondent's coffers. The two are not interchangeable for
the Hospital is, after all, a corporation which does not
dispense funds out of private sentiment. Moreover, the
bonus was not paid on the basis of who had given sup-
port or how much support an employee gave. Every em-
ployee received a payment in accordance with a formula
that was tied to job classification and salary, regardless
of the role he or she played during the doctor's family
crisis . Indeed, even employees who were on leave of ab-
sence and, therefore, could demonstrate no sympathy for
the doctor during this crisis, also received bonuses.
These considerations strongly suggest that the bonus
payments were keyed to straightforward business consid-
erations.
There are other factors, not the least of which are Dr.
Chiaramonte's own explanations, which persuade me that
at least through the summer of 1981 and perhaps as late
as December of that year, Respondent intended to grant
a bonus as an annual term and condition of employment.
19 The brochure, composed of 10 accordion-like folded pages, was at-
tractively printed on heavyweight paper and contained numerous photo-
graphs of Hospital facilities and staff Benefits, including the annual
bonus, were prominently displayed on one of the pages. It is impossible
to believe that a well-designed, costly pamphlet such as this was careless-
ly assembled with no forethought given to its contents
20 Their can be no question that the Chiaramonte family was grief-
stricken by the fatal injuries sustained by their 16-year old daughter who
spent the final days of her life in Respondent's Hospital
The doctor advised the National Labor Relations Board
by letter dated March 19, 1982, that the failure to make a
monetary payment to employees in December 1981 was
due to economic considerations. He stated that the
comptroller had advised him that they "were short of
funds, even to meet all our accounts payable for 1981,
since the cash flow had diminished very dramatically in
the Hospital." Amplifying on this assertion, the doctor
continued to maintain at the hearing that "The -lack of
profitability at the date, December 1981, did impact on
the decision" not to give a bonus. When- asked when he
decided not to give employees a 1981 bonus, Dr. Chiara-
monte answered: "During the month of December, when
the operating capital looked as if we -could-not meet our
accounts payable prior to December 31st." Specifically,
the doctor stated that Melvin advised him of a $190,000
deficit in the operating account. Melvin confirmed the
doctor's testimony in this regard, but both men were
contradicted by George Bowdren, Respondent's only
bookkeeper at that time. Bowdren's principal responsibil-
ities included feeding data into the general ledger and
preparing a daily cash-flow tabulation of accounts pay-
able and receivable. Although he presented this report to
Melvin daily, and although his recollection was tested re-
peatedly, he could not recall any cash-flow problem or
overdrawn bank balances in December 1981. Bowdren's
testimony was consistent with that of computer operator
Marilyn Williams, who also could not remember any
deficits in accounts payable or receivable in November
or December 1981. Respondent's failure to produce a
single piece of documentary evidence to prove that a
cash-flow deficit existed, when such evidence should
have been in its possession and control, gives rise to an
inference that had such records been produced, they
would not have substantiated its contention. See Pacific
Coast International Meat Co., 248 NLRB 1376, 1382
(1980).
If there ever appeared to be a cash-flow problem, both
the doctor and Melvin knew it was transitory and illuso-
ry, stemming from a conversion from one computer bill-
ing system to another. As Melvin explained, when this
conversion took place in early November, several tapes
were crushed preventing an accurate representation of
the Hospital's financial position until a recoding was
completed. Melvin, who discussed such matters on virtu-
ally a daily basis with the doctor, was well aware that
the brief paper deficit was never reflected in any of Re-
spondent's banking statements. Moreover, both men
knew that this momentary lapse in the accounting pic-
ture did not reflect the actual amount of receivables or
the Hospital's "ratio of collectibles" which was accord-
ing to industry standards, in the low 90-percent range,
and based primarily on secure third-party payments such
as Blue Cross and Medicare. Thus, the doctor's appre-
hension about the Hospital's purported negative cash-
flow position in December 1981 was disingenious.
A comparison of the Hospital's net income for 1980
and 1981 show only a minimal change in profitability,
and demonstrates conclusively that the institution was
flourishing. A financial statement prepared by Arthur
Anderson and Company shows that in 1980 the net
SOUTHERN MARYLAND HOSPITAL,
income after taxes was $1,840,700; in 1981, this figure
was $1,769,100. Thus, 1981 was less profitable than 1980
by only $71,600. This insignificant difference in profit be-
tween 1980 and 1981 was forecast in the Hospital's own
projections submitted in a report to the Maryland State
Health Commission as early as April 1981. If the doctor
was genuinely concerned that 1981 might be less profita-
ble than 1980, he simply could have reduced rather than
eliminate the bonuses.
The doctor's knowledge that the Hospital was in a
sound financial posture in 1981 may account for his shift-
ing to another rationale to justify the decision to with-
hold the bonus in 1981. Thus, he explained that instead
of giving a gift as he had done in 1980., he decided to
contribute to an employee pension plan which he consid-
ered a more equitable mode of profit distribution. The
defect in this stance is that in 1980, in addition to the
bonus payments totaling over $215,000, the Respondent
paid $195,000 into the pension plan. In 1981, when no
bonus was given, the total amount paid into the pension
program was only $175,000.
From all of the above, it is apparent that Respondent's
economic justifications for failing to give a bonus in 1981
are specious. There is compelling evidence that at least
through the summer of 1981, the Hospital intended to
grant a bonus to its employees in that year and that
sometime thereafter the doctor changed his mind. An an-
laysis of Respondent's own records show that its finan-
cial condition in 1981 was almost identical to that in the
preceding year. Therefore, the principal reason Respond-
ent offers to explain why no bonus was given is unsup-
ported. Since the economic posture of the Hospital in
December cannot account for the reversal of this deci-
sion, only one viable explanation for the doctor's change
of heart remains: his unabated hostility to the presence of
the Union. See International Business Systems, 447 NLRB
678 (1980), enfd. (unpublished decision) 108 LRRM 2280
(1981). On reviewing the entire record it becomes evi-
dent that the doctor took the Union's campaign personal-
ly. He deeply resented campaign literature which issued
in the fall of 1981 characterizing him as "'the little king."
Indeed, it was after such references appeared in union lit-
erature in the early fall that his antagonism toward the
Union and toward union supporters grew more accute. It
was in the fall that the doctor had his encounters with
employees distributing the Solid Rock, that he threatened
to sue, and that he initiated a series of grievance meet-
ings. The doctor's efforts to appear impervious to union
criticism does not ring true. He viewed union supporters
as disgruntled employees whose motives he could not
fathom and contrasted them to the balance of the staff
whom he considered "excellent" employees. In sum, it is
clear from the entire record in this case that the doctor
purposely withheld the bonus out of antiunion animus.
He was well aware that the bonus question was a matter
of concern to all employees. Rumors and questions about
the bonus abounded prior to Christmas. Yet, although
the doctor professed that he held frequent meetings with
employees so that he could quickly resolve their com-
plaints, he resisted answering the one question which
was of central concern to the entire staff. The conclusion
is inescapable that he created this ambiguity purposely.
1365
Communication need not always be verbal. In this case,
Dr. Chiaramonte's silence on the bonus sent a message
loud and clear. He manipulated and exploited the bonus
issue in order to demonstrate to the employees that any
benefits they might receive would be bestowed by his
fiat, and not wrung from him by outside coercion. By
withholding a benefit which would have been granted
were it not for the employees' union activity, and advis-
ing them directly and indirectly that this activity was the
reason for the withholding, Respondent violated Section
8(a)(3) and (1) of the Act. See Modesto Convalescent Hos-
pital, 235 NLRB 1059, 1065-67 (1978); Franklin Parish
Broadcasting, 222 NLRB 1133, 1142 (1976).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by confiscating union literature from its employees; insti-
tuting an "Employee of the Month" program; soliciting
grievances from employees and granting them benefits in
order to discourage their support for the Union; interfer-
ing with Board processes by telling an employee she
could not be released from work to comply with a sub-
poena; informing employees they did not receive a 1981
bonus because they sought union representation; restrict-
ing the access of employees to union organizers during
nonworking hours; threatening employees with discharge
because of their union adherence, threatening an employ-
ee with bodily harm while he was distributing union lit-
erature, and threatening to sue employees as a means of
intimidating them in the exercise of Section 7 rights.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by issuing a verbal counseling report and repri-
mand to Patricia Vass for discriminatory reasons.
5. Respondent violated Section 8(a)(3) and (1) of the
Act by withholding from its full-time and regular part-
time employees a bonus at year's end 1981.
6. The unfair labor practices set forth in paragraphs 3,
4, and 5, above, affect commerce within the meaning of
the Act.
THE REMEDY
Having found that Respondent violated the Act in cer-
tain respects, I shall recommend that it be required to
cease and desist therefrom. Because Respondent has
committed extensive violations of the Act, many of them
through its chief officers and because such unfair labor
practices have a widespread effect, I conclude that Re-
spondent should be required to refrain from in any other
manner infringing on employees' rights to engage in pro-
tected concerted activity. See Hickmott Foods, 242
NLRB 1357, (1979).
Affirmatively, I also shall recommend that Respondent
pay to its full-time and regular part-time employees who
worked at the Hospital in the 1981 calendar year, the
yearend bonus they should have received which shall be
substantially similar in amount to that which was paid to
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in similar job classifications in 1980,21 with da Steel Corp., 231 NLRB 651 (1977).22 Additionally,
interest thereon to be computed in the manner prescribed Respondent shall be required to expunge from its files
in F. W. Woolworth Co., 90 NLRB 289 (1950), and Flori- the "verbal counseling report" and "reprimand" issued to
Patricia Vass on September 30 and December 28, 1981,
respectively, and notify her in writing that this has been
done.
21 The determination of precisely which employees shall receive a [Recommended Order omitted from publication.]
bonus and the amounts to be awarded is best resolved either by voluntary
agreement between the parties or at the compliance stage of this proceed-
ing. See Plasticrafts, Inc. Y. NLRB, 586 F.2d 185 (10th Cir. 1978). 22 See generally Isis Plumbing Co., 138 NLRB 716 (1962).