St. Francis Hospital

National Labor Relations Board - Board Decisions

Aug 31, 1982

263 N.L.R.B. 834 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Francis Hospital and St. Francis Federation of
Nurses and Health Professionals, affiliated with
the Wisconsin Federation of Nurses and Health
Professionals, affiliated with the American Fed-
eration of Teachers, AFL-CIO
Modern Management, Inc. and St. Francis Feder-
ation of Nurses and Health Professionals, affili-
ated with the Wisconsin Federation of Nurses
and Health Professionals, affiliated with the
American Federation of Teachers, AFL-CIO.
Cases 30-CA-5607 and 30-CA-5698
August 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 3, 1982, Administrative Law Judge
George Norman issued the attached Decision in
this proceeding. Thereafter, Respondents, the Gen-
eral Counsel, and the Charging Party filed excep-
tions and supporting briefs, and Respondent
Modern Management, Inc., the General Counsel,
and the Charging Party filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings,2 and conclusions 3 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 4
r The Charging Party has requested oral argument. This request is
hereby denied as the record, the exceptions, and the briefs adequately
present the issues and the positions of the parties.
2 In agreeing with the Administrative Law Judge that the Hospital's
granting of a wage increase on Octoher I1 was violative of Sec. 8(a)(l)
of the Act, we also rely on the fact that employees were given a raise of
10 percent whereas in past years employees had only received raises of 6
or 7 percent. Where, as here, an employer does not present adequate
business justification, for its larger than normal wage increases, we have
found such action to be evidence of a violation. See San Lorenzo Lumber
Company, 238 NLRB 1421, 1422 (1978).
In agreeing with the Administrative Law Judge that the Hospital vio-
lated Sec. 8(a)(3) of the Act by refusing to pay registration fees and grant
time off to employees Maureen Szymalski and Lois Mecklenberg to
attend a seminar, we rely on the fact that the Hospital's refusal was ad-
mittedly motivated by the fact that the seminar was sponsored by a
union. Even though the Hospital had allowed employees to attend union-
sponsored seminars in past years when there was no union activity
among its employees, it refused to allow employees to attend such semi-
nars when its employees were actively involved in union activities. Thus,
regardless of whether the employees who applied to attend the seminar
were prounion or antiunion, the Hospital's motivation was the same, i.e.,
to take away a benefit because of its employees' exercise of their Sec 7
rights, and accordingly it violated Sec. 8(aX3) of the Act by this conduct.
' In affirming violations of the Act found by the Administrative Law
Judge. we do not rely on, and expressly disavow, the Administrative
Law Judge's characterization of the antiunion campaign of the Hospital
as similar to that waged against prisoners of war.
4The Administrative Law Judge inadvertently set forth an incorrect
description of the bargaining unit involved in this case. The correct unit
263 NLRB No. 109
1. The Administrative Law Judge found that Re-
spondent St. Francis Hospital (hereafter the Hospi-
tal) violated Section 8(a)(1) of the Act by its an-
tiunion campaign. Respondents except to this find-
ing, contending that the antiunion campaign was
lawful. We find merit in this exception, to the limit-
ed extent stated below.
Although we agree with the Administrative Law
Judge's findings, except as specified infra, that the
Hospital committed violations of Section 8(a)(1)
during its antiunion campaign, it does not follow
that these violations somehow taint the entire cam-
paign such that the entire campaign, including
parts which are not in and of themselves violative
of the Act, is rendered violative of the Act. Any
party to an election has a right to conduct a vig-
orous campaign in support of its position, including
the utilization of individual and group meetings
with employees. See Hasbro Industries, Inc., 254
NLRB 587 (1981). Further, the Board has recently
refused to find employer statements, which individ-
ually were unobjectionable, to be objectionable by
virtue of their repetition. Blue Cross of Kansas City,
Inc. and Blue Shield of Kansas City, Inc., 259
NLRB 483 (1981). Although the Hospital's cam-
paign was marked by numerous and massive unfair
labor practices, which, as indicated below, require
a bargaining order, we find that not every facet of
the campaign was violative of the Act. Therefore,
we reject the Administrative Law Judge's conclu-
sion that the campaign in its entirety violated Sec-
tion 8(a)(1).
2. The Administrative Law Judge found that the
Hospital violated Section 8(a)(1) of the Act by
maintaining invalid rules prohibiting employee so-
licitations and distributions. The Hospital excepts
to this finding, contending that the Administrative
Law Judge was precluded from finding this viola-
tion because of a prior settlement agreement, en-
tered into by the Hospital in another case, which
remedied this violation. We find merit in this ex-
ception. 5
The Regional Director for Region 30, in October
1980, issued the instant complaint against the Hos-
pital, alleging, inter alia, that the Hospital main-
descnption, which appears in the Regional Director's Decision and Di-
rection of Election, is as follows:
All full-timne and regular part-time registered nurses employed by) the
Employer including graduate nurses, infection control coordinator,
utilization review coordinator, home care coordinator, diabetes
center nurses. certified registered nurse anesthetists and staff devel-
opment coordinators, eicluding guards and supervisors as defined ill
the Act, and all other employees.
We shall modify the Administrative Law Judge's recommended Order
and notice to reflect the correct unit description. We shall also conform
the Administrative Law, Judge's Order and notice to the violations found.
I The Administrative Law Judge did not discuss the settlement agree-
ment or its effecLt
834
ST. FRANCIS HOSPITAL
tained unlawful no-solicitation, no-distribution rules
"at all times material herein." However, prior to is-
suance of this complaint, the Regional Director, on
April 30, 1980, approved an informal settlement
agreement signed by the Hospital in Case 30-CA-
5367. As part of that agreement the Hospital posted
a notice to employees which provided, in pertinent
part:
WE WILL NOT promulgate, maintain, or en-
force any rule or regulation which prohibits
our employees from soliciting on behalf of any
labor organization on our premises, other than
immediate patient care areas, during employees
nonworking time.
Although the Charging Party and the bargaining
unit in Case 30-CA-5367 were different from those
involved in the instant case, it is undisputed that
the complaint in that case covered the same time
period as the instant complaint, that the Hospital
posted the notice in that case for the prescribed
period of time, and that the Regional Director has
never set aside the settlement agreement in that
case. Under these circumstances, we find that Re-
spondent has fully remedied the violation regarding
its invalid no-solicitation, no-distribution rules,6 and
that it would not effectuate the policies of the Act
to find a violation in this regard. Accordingly, we
hereby dismiss this allegation of the complaint. 7
3. Because of the Hospital's conduct of its an-
tiunion campaign in "violation" of no-solicitation,
no-distribution rules, the Administrative Law
Judge found that an "imbalance" was created and
ordered the Hospital to grant equal access to its
employees to the Union with no requirement that
the Union reimburse the Hospital for employees'
lost worktime. The Hospital excepts to this remedy
as unwarranted in this case. We agree with the
Hospital.
The Board has imposed an "equal access"
remedy only in extraordinary cases where conven-
tional remedies are not sufficient to fully rectify the
violations found. See, e.g., J. P. Stevens & Compa-
ny, Inc., 240 NLRB 33 (1979). In view of our
agreement with the Administrative Law Judge, dis-
cussed infra, that a bargaining order is appropriate
to remedy the unfair labor practices committed by
the Hospital, we find that this other extraordinary
e We attach no significance to the fact that the notice was posted pur-
suant to a charge involving a different union and different employees
from those in the instant case. The notice is a notice to all employees,
and there is no reason to assume that the employees involved in the in-
stant case did not read or have the opportunity to read the notice, which
clearly stated that the invalid rule would not be maintained.
7 To avoid any misunderstanding, we emphasize that, in the absence of
the settlement agreement, we would find, for the reasons stated by the
Administrative Law Judge, that these rules were violative of Sec.
8
(aXl)
of the Act.
remedy is not warranted to remedy the unfair labor
practices found herein. See Dutch Boy, Inc., Glow-
Lite Division, 262 NLRB 4, fn. 14 (1982).
Moreover, in our opinion, the Administrative
Law Judge's imposition of an equal access remedy
was based on a faulty premise. First, no-solicita-
tion, no-distribution rules are not binding upon em-
ployers. N.L.R.B. v. United Steelworkers of Amer-
ica, CIO [Nutone, Incorporated], 357 U.S. 357, 362
(1958). As the Supreme Court expressly stated in
that case an employer's right to engage in noncoer-
cive, antiunion solicitation is "protected by the ...
'employer free speech' provision of §8(c) of the
Act," and nothing in law nor logic limits this right
of an employer to discussions with employees only
in nonwork areas on the employees' breaktimes.8
Moreover, a no-solicitation, no-distribution rule
may lawfully be used to limit the access of nonem-
ployee organizers to employees as long as it is ap-
plied in a nondiscriminatory manner and the union
has other reasonable means of communication with
employees. N.L.R.B. v. Babcock & Wilcox Compa-
ny, 351 U.S. 105 (1956). Thus, an employer may
lawfully campaign against a union during employ-
ees' nonbreaktime and in working areas even
though neither employees nor nonemployee orga-
nizers may do so. In such a case, an employer has
not unlawfully enforced its no-solicitation, no-dis-
tribution rule in a disparate manner nor unlawfully
"violated" its rule. Accordingly, under these cir-
cumstances, and where, as here, there was no evi-
dence adduced to show that the Union did not
have reasonable access to employees, or that the
Hospital unlawfully enforced its rules to limit
access to its employees by nonemployee organizers
or to curtail the activities of prounion employees
while encouraging the activities of antiunion em-
ployees, we see no justification for imposition of an
equal access remedy. We shall therefore not adopt
this portion of the Administrative Law Judge's rec-
ommended Order.
4. The Administrative Law Judge found that the
Hospital violated Section 8(a)(1) of the Act by su-
pervisory interrogations of and threats to employ-
ees. Except as set forth below, we agree with these
violation findings of the Administrative Law
Judge.
' We, therefore, unlike the Administrative Law Judge, do not attach
any significance to the fact that the Hospital utilized its supervisors as an
integral part of its antiunion campaign and encouraged frequent contacts
between the supervisors and the employees, both of which had the effect
that the supervisors were away from their desks more than was custom-
ary. It is unclear from the Administrative Law Judge's Decision whether
he found such conduct to be in itself violative of Sec. 8(aXl) even though
not alleged as such by the General Counsel. In any event we do not find
such conduct violative of the Act for the reasons indicated above.
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At an employee meeting on October 15, 1979,9
Administrator David Rose stated, according to an
employee:
He discussed many things such as salary, that
we can't count on having a better salary. We
cannot count on having better benefits, any-
thing like this would take anywhere up to sev-
eral years, and that we shouldn't even be
fooled by the fact that the Union can help us.
Contrary to the Administrative Law Judge, we
find Rose's statement to constitute permissible elec-
tioneering. The thrust of Rose's statement was that
unionization would not necessarily lead to higher
wages or benefits, and, although Rose implied that
bargaining would take "anywhere up to several
years," he did not also imply that the Hospital
would engage in bad-faith bargaining. Under these
circumstances, we do not view Rose's statement as
amounting to an implied threat of reprisal if the
Union won the election. See Oxford Pickles, Divi-
sion of John E. Cain Co., 190 NLRB 109 (1971).
Accordingly, we dismiss this allegation of the com-
plaint.
Similarly, we find no threat of reprisal in the
conversation between Supervisor Karen Keys and
employee Patricia Plakut on October 19. Through-
out that day Keys told Plakut that she wanted to
talk to her for about 5 minutes. Each time Plakut
answered that she was too busy to talk at that time.
Later Keys sat down at a table opposite Plakut
and, when Plakut again stated that she was too
busy to talk, Keys got up and said, "Okay just wait
until you want to talk to me about something," and
left. In the absence of any evidence linking this
threat to any possible job action that Keys might
take against Plakut, we find the statement, standing
alone, to be too nebulous to constitute an unlawful
threat of reprisal. 'O
On October 19, Sister Pacis, director of surgery,
gathered five or six employees into the staff lounge
and asked various employees to read aloud various
portions of a campaign letter from the Hospital.
One of the employees present, Nancy Brandt, re-
fused to read the letter aloud, stating that she was
capable of reading it on her own free time and that
she was busy and had work to do. Pacis gave her
an "angry look" and called on another employee.
Brandt stayed in the room for the 15 minutes of the
meeting. In the absence of any evidence that Pacis
disciplined, attempted to discipline, or threatened
or coerced Brandt in any way for refusing to read
* All dates are in 1979 unless otherwise noted.
0o For the same reason, Member Zimmerman would also not find vio-
lative of the Act Supervisor Rose Reitz' statement to employee Susan
Ellis on October 25 that Ellis "had better" allow Reitz some time to dis-
cuss "the Union" with her.
aloud, we do not find Pacis' conduct to be viola-
tive of Section 8(aX)(1) of the Act. I I
Similarly, we do not find Supervisor Mardell
Kuluzny's remark to Geanine Zakrzewski on Sep-
tember 20 about taking the time to become an in-
formed voter, at a time when Zakrzewski was min-
istering to a bereaved family, to be unlawful since
Kuluzny's remarks contained nothing which could
be construed as coercive.
5. The Administrative Law Judge recommended
a bargaining order to remedy the Hospital's unfair
labor practices. The Hospital excepts to this
remedy, contending that its unfair labor practices
did not interfere with employee free choice in the
election held on October 26 nor would such un-
lawful conduct preclude the possibility of a fair
rerun election. For the following reasons, we find,
notwithstanding our reversal of certain of the Ad-
ministrative Law Judge's unfair labor practice find-
ings, that a bargaining order is appropriate to
remedy the unfair labor practices committed by the
Hospital.
From the very day that the Union filed its elec-
tion petition with the Board's Regional Office, the
Hospital embarked on a course of retaliatory unfair
labor practices. The Hospital sought to eliminate
any employee support for the Union by interrogat-
ing employees about their union activities; by
threatening employees with changes in working
conditions, loss of previously obtained benefits, and
loss of access to management if the Union won the
election; and by promising benefits to the employ-
ees if the Union lost the election. This unlawful ac-
tivity was committed by at least eight different su-
pervisors and involved numerous employees. In ad-
dition, in the weeks preceding the election the Hos-
pital accelerated its unlawful campaign. Thus, on
October 11, Hospital Administrator David Rose
held a meeting with a group of employees and in
response to an employee question about Modern
Management, 12 coupled with the statement that
the employees felt "really under duress," Rose
stated, "If the Union wins, 2M stays. If the Union
doesn't win, 2M goes." Under these circumstances,
Rose's statement constituted a threat to the em-
ployees that, in the event of a union victory, man-
agement would continue to keep them "under
duress." Moreover, that same day Rose announced
an across-the-board wage increase effective No-
vember 4 of 10 percent for all employees-3 to 4
percent higher than wage increases in the past, a
merit wage increase up to 7-1/2 percent by Janu-
11 Member Jenkins would affirm the Administrative Law Judge on
this incident.
,a Modern Management, also called 2M, was hired by the Hospital to
conduct its antiunion campaign.
836
ST. FRANCIS HOSPITAL
ary 1, 1980, and a cost-of-living review by July 1,
1980. In addition, lest employees fail to see the
connection between these wage increases and the
union campaign, Supervisor Nancy Sykora stated
to employee Francine Hanson on October 15,
"What is it you girls are really unhappy about?
You have your 10 percent raise. What else could
you possibly want?"
It is, therefore, apparent that Respondent St.
Francis Hospital reacted swiftly to the union orga-
nizing activity by embarking upon a course of un-
lawful conduct designed and calculated to erode
union support. In addition to the numerous interro-
gations, threats, and promises of benefits, the Hos-
pital granted an unlawful wage increase to all unit
employees. This wage increase clearly demonstrat-
ed to the employees that they did not need a union
to receive such a benefit. Thus, the employees
could reasonably believe that they had achieved a
large measure of what they were seeking through
union representation. Tower Enterprises, Inc., d/b/a
Tower Records, 182 NLRB 382, 387 (1970). Fur-
ther, in light of the numerous unlawful promises of
benefits, and especially that of Supervisor Sykora
described above, it is unlikely that the employees
missed the inference that "the source of benefits
now conferred is also the source from which future
benefits must flow and which may dry up if it is
not obliged." N.L.R.B. v. Exchange Parts Co., 375
U.S. 405, 409 (1964). Thus, in agreement with the
Administrative Law Judge, we find that the Hospi-
tal's unfair labor practices are serious and pervasive
in their impact-the unlawful wage increase in par-
ticular having touched all unit employees. Such
conduct can reasonably be expected to have a lin-
gering effect on employees, by signaling to them
the Hospital's displeasure at union activity and the
lengths to which it would go to stifle the employ-
ees' right to self-organization. C & G Electric, Inc.,
180 NLRB 427 (1969); National Care & Convales-
cent Industries, Inc. d/b/a Elmwood Nursing Home,
238 NLRB 346 (1978). In addition, even after it
won the election, the Hospital unlawfully refused,
contrary to past practice, to allow two employees
to attend a union-sponsored seminar. Such conduct
emphasized to employees that the Hospital would
continue to punish them for their union activities
even after the election, and thus served to remind
them, lest they forgot, that their support for the
Union, or activities on its behalf, would not be tol-
erated. For all these reasons, we find that simply
requiring the Hospital to refrain from repeating
such conduct, the traditional remedy, will not erase
the effects of this unlawful conduct, and will not
enable the employees to participate in a free and
uncoerced rerun election. Therefore, we find, as
did the Administrative Law Judge, that a bargain-
ing order, rather than another election would best
protect employee sentiment as indicated by the au-
thorization cards.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
St. Francis Hospital, Milwaukee, Wisconsin, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Delete paragraphs l(a), (b), and (c); reletter
paragraph l(d) as paragraph l(a); and insert the fol-
lowing as paragraphs l(b), (c), (d), (e), and (f):
"(b) Announcing or granting general wage in-
creases, COLA increases, or merit wage programs,
in order to discourage employees' membership in
or other activity on behalf of the Union.
"(c) Interrogating employees concerning their
own or other employees' union membership activi-
ties and desires.
"(d) Promising employees benefits in order to
discourage their interest in or activity on behalf of
the Union.
"(e) Threatening employees with reprisals if they
do not refrain from becoming or remaining mem-
bers of the Union or giving any assistance or sup-
port to it.
"(f) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the
Act."
2. Delete paragraph 2(b) and reletter the remain-
ing paragraphs accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint in
Case 30-CA-5698 be, and it hereby is, dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
837
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT announce or grant general
wage increases, COLA increases, or merit
wage programs, in order to discourage our
employees' membership in or other activity on
behalf of the Union.
WE WILL NOT interrogate our employees
concerning their own or other employees'
union membership activities and desires.
WE WILL NOT promise our employees eco-
nomic benefits for the purpose of discouraging
their interest in or activity on behalf of the
Union.
WE WILL NOT threaten our employees with
reprisals if they do not refrain from becoming
or remaining members of the Union or giving
any assistance or support to it.
WE WILL NOT deny our employees compen-
sation and fees to attend training classes be-
cause they engage in union activities or pro-
tected concerted activities.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, and other
terms and conditions of employment with St.
Francis Federation of Nurses and Health Pro-
fessionals, affiliated with the Wisconsin Feder-
ation of Nurses and Health Professionals, affili-
ated with the American Federation of Teach-
ers, AFL-CIO, as the exclusive bargaining
representative of our employees in the follow-
ing appropriate bargaining unit:
All full-time and regular part-time registered
nurses employed by us including graduate
nurses, infection control coordinator, utiliza-
tion review coordinator, home care coordi-
nator, diabetes center nurses, certified regis-
tered nurse anesthetists and staff develop-
ment coordinators, excluding guards and su-
pervisors as defined in the Act, and all other
employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL, upon request, recognize and bar-
gain collectively and in good faith concerning
rates of pay, wages, and other terms and con-
ditions of employment with St. Francis Feder-
ation of Nurses and Health Professionals, affili-
ated with the Wisconsin Federation of Nurses
and Health Professionals, affiliated with the
American Federation of Teachers, AFL-CIO,
as the exclusive bargaining representative of
the employees in the appropriate bargaining
unit described above and, if an understanding
is reached, embody such understanding in a
signed agreement.
ST. FRANCIS HOSPITAL
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: This
proceeding was heard before me at Milwaukee, Wiscon-
sin, between April 20 and 23, 1981. The original charge
was filed on January 15, 1980, by the St. Francis Feder-
ation of Nurses and Health Professionals, affiliated with
the Wisconsin Federation of Nurses and Health P ofes-
sionals, affiliated with the American Federation of
Teachers, AFL-CIO, herein called the Union. Amended
charges were filed on January 22, March 5 and 21, and
October 2 and 27, 1980, in Case 30-CA-5607, against St.
Francis Hospital, herein called Respondent St. Fr;mcis.
A complaint and notice of hearing was issued by the Re-
gional Director for Region 30 on October 30, 1980(. On
November 19, 1980, an amendment to that complaint
was issued.
On March 5, 1980, in Case 30-CA-5698, the Union
filed a charge against Modern Management Methods,
Inc.' A complaint based on that charge was issue on
February 20, 1981.
The complaint and amendment to complaint in Case
30-CA-5607 alleges that Respondent St. Francis vio ated
Section 8(a)(l) and (3) of the Act. The complaint in Case
30-CA-5698 alleges that Respondent 2M violated Sec-
tion 8(aX1) of the Act.2
A. The Issues in the Complaint Against Responden,
St. Francis
I. Did Respondent St. Francis violate Section 8(t.)(l)
of the Act by: announcing a wage increase; promisinig a
merit increase; systematically interrogating employees
concerning their union activities and sympathies; promis-
ing better benefits and improved working conditions to
employees; threatening employees; maintaining and dis-
parately enforcing illegal and overbroad no-solicitation,
no-distribution rules; and denying the Union equal time
and access to the employees?
2. Has Respondent St. Francis violated Section 8()(3)
of the Act by refusing to pay registration fees and g ant
time off to Maureen Szymanski and Lois Mecklenberlg to
attend an accredited training course?
I At the hearing, all formal papers were amended to change the tunme
to Modern Management, Inc., which will hereafter be referred to as Re-
spondent 2M.
2 On August 23, 1979, the Union filed a petition for an election in .ase
30-RC-3611. After a hearing, the Regional Director, on Septembel 28,
issued a Decision and Direction of Election. The election was hell on
October 26. The tally shows that, of approximately 206 eligible voter, 95
cast votes for and 100 against the Union; there were 3 challenged ba lots
which were not sufficient to affect the results of the election. On No% em-
ber 1, the Union filed timely objections to conduct affecting the resul s of
the election. After a hearing, the Report on Objections issued on Fe )ru-
ary 1, 1980, and, on July 11, 1980, the Board affirmed the report of the
hearing officer and issued a Decision and Direction of Second Election.
838
ST. FRANCIS HOSPITAL
3. Does the above conduct prevent the holding of a
fair rerun election, thus necessitating a Gissel order re-
quiring Respondent St. Francis to recognize and bargain
with the Union without holding a second election?
B. The Issues Involving Respondent 2M
1. Was Respondent 2M responsible for and in control
of the campaign, on behalf of Respondent St. Francis,
against the Union's organizational effort?
2. Was Respondent 2M the principal and/or manager
of that campaign; or, alternatively, were Respondents St.
Francis and 2M co-principals and/or co-managers of that
campaign?
3. Were the named supervisors of Respondent St.
Francis also the supervisors and/or agents of Respondent
2M?
4. Was Respondent 2M in violation of Section 8(a)(l)
of the Act by the conduct of the named supervisors, in-
cluding interrogation concerning the employees' union
activities and sympathies, promising benefits and im-
proved working conditions, and making threats to em-
ployees?
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT ST. FRANCIS
Respondent St. Francis is a Wisconsin corporation
which has maintained and operated a hospital in Milwau-
kee, Wisconsin. During the past calendar year in the
course and conduct of its operations, Respondent St.
Francis derived gross revenues in excess of S250,000 and
purchased and received goods and products valued in
excess of $5,000 at its Milwaukee hospital directly from
points outside the State of Wisconsin. Respondent St.
Francis has been and is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and is, and has been, a health care institution
within the meaning of Section 2(14) of the Act.
11. THE BUSINESS OF RESPONDENT 2M
Respondent 2M is an Illinois corporation, with its
home office and principal place of business located in
Bannockburn, Illinois. It is engaged in the business of
representing employers, including St. Francis Hospital
(Milwaukee), concerning labor relations and other mat-
ters. Between the months of August and October 1979,
Respondent 2M maintained an office at St. Francis Hos-
pital (Milwaukee). During the calendar year ending De-
cember 31, 1980, Respondent 2M, in the course and con-
duct of its business operations described above, supplied
services valued in excess of S50,000 to clients or business
enterprises located outside the State of Illinois, which cli-
ents or business enterprises meet one of the Board's juris-
dictional standards, other than the indirect inflow or in-
direct outflow standards. Respondent Modern Manage-
ment is an employer within the meaning of Section 2(2)
of the Act, engaged in commerce and in business affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
11. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
3
I have reviewed the evidence of record and the Hear-
ing Officer's Report on Objections with findings and rec-
ommendations in Case 30-RC-3611 and the Board's De-
cision and Direction of Second Election in that case. Al-
though I do not consider myself bound by those findings
and conclusions, as adopted by the Board, I adopt the
Hearing Officer's findings of fact. I will not repeat them
except as necessary in the discussion of the alleged unfair
labor practices which are the subject of this litigation.
The Organizational Campaign
In about June 19, 1979, 4 the Union started an organi-
zational campaign among the registered nurses employed
by Respondent St. Francis and, on August 17, the Union
was designated (by membership card signing) as the ex-
clusive bargaining representative by a majority of the
registered nurses (RNs) in an appropriate unit.
On August 23, the Union filed a petition for an elec-
tion in Case 30-RC-361 1. An election was conducted on
October 26 pursuant to a Decision and Direction of
Election issued by the Regional Director for Region 30,
National Labor Relations Board, on September 28 in the
following described unit:
All registered nurses employed by the employer, in-
cluding assistant head nurses, in-service instructor,
utilization review coordinators, discharge planner,
' The parties stipulated as to the exhibits and certain pages from the
transcript of the objections to the election hearing, referred to above. into
the record to avoid duplication of testimony. The parties reached an un-
derstanding that the witnesses would give the same testimony if called to
testify in the instant proceeding.
The General Counsel offered the Hearing Officer's Report on Objec-
tions in Case 30-RC-3611. The court reporter included that document,
although rejected, with the General Counsel's exhibits received into evi-
dence. The General Counsel contends that the Administrative Law Judge
is bound by the Hearing Officer's findings of fact and credibility, as af-
firmed by the Board. The General Counsel contends further that the
Hearing Officer's Report on Objections was rejected originally in order
that Respondents could call witnesses to refute the testimony contained
in the objections hearing transcript and, inasmuch as neither Respondent
presented any evidence although both had the opportunity to do so, that
testimony is not modified by any testimony in the instant case and the
Board has already ruled on the facts and credibility issues arising out of
that testimony. Therefore, he argues, the Administrative Law Judge may
not reverse any findings of fact or credibility determinations made by the
Board; and that he should determine whether Respondents' conduct,
based on those findings of fact and credibility, violated Sec. 8(aXI) as al-
leged in each complaint. In support of his contention, the General Coun-
sel cites Mosher Steel Company v. N:LR.B., 568 F.2d 436 (5th Cir. 1978),
and Wayne County Neighborhood Legal Services Inc., 249 NLRB 1260,
1262 (1980).
I do not consider the Board's factual findings in a related representa-
tion case to be binding upon me in a subsequent unfair labor practice pro-
ceeding because the issues are different in the two types of proceedings.
Helena Laboratories Corporation, 225 NLRB 257 (1976), wherein it cited,
in fn. 6, McEwen Manufacturing Company, 172 NLRB 990, fn. 6 (1968),
enfd. 419 F.2d 1207 (D.C. Cir. 1969), cert. denied 397 U.S. 988 (1970).
Accord: Thomas Products Co., Division of Thonmas Industries, Inc., 175
NLRB 776 (1969), enfd. 432 F.2d 1217 (6th Cir 1970).
' All events herein took place in 1979 unless otherwise indicated.
839
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
infection control nurse and patient teachers, but ex-
cluding office clerical employees, technical employ-
ees, in-service coordinator, head nurses, quality care
coordinator, guards and supervisors as defined in
the Act.
The tally of ballots shows that, of approximately 260
eligible voters, 95 cast ballots for and 100 cast ballots
against the Union. Challenged ballots were nondetermin-
ative of the results of the election.
On November 1, 1979, the Union filed objections to
the election based on certain aspects of Respondent's
conduct. A hearing on these objections was conducted in
November and December. On February 1, 1980, the
Hearing Officer concluded in his Report on Objections
with Findings and Recommendations that Respondent
St. Francis had interfered with the election and recom-
mended that the election results be nullified and a rerun
election be conducted. After consideration of the Hear-
ing Officer's recommendation, the Board, in a Decision
and Order issued July 11, 1980, adopted the report, set
the election aside, and directed a second election.
The Alleged 8(a)(1) Conduct (Promise of Benefits)
The complaint against Respondent St. Francis alleges
that on or about October 12, about 2 weeks before the
election, David Rose, St. Francis Hospital administrator,
announced that a 10-percent wage increase would be im-
plemented on or about November 4 (after the election);
promised that a merit increase program up to 7-1/2 per-
cent would be implemented by January 1, 1980; and fur-
ther promised a cost-of-living review to be conducted on
or about July 1, 1980.
The unrebutted testimony reveals that, by letter dated
January 16, Respondent St. Francis wrote to its employ-
ees that they would get a 7-percent raise but that no
merit increases would be granted in 1979. However, on
October 11, shortly after he became administrator, David
Rose announced, at a mass meeting, that the employees
should be given a raise. On the next day he issued a
letter announcing a 10-percent raise for all employees ef-
fective November 4, a merit increase of up to 7-1/2 per-
cent effective January 1, 1980; and a review of economic
conditions in July 1980. Rose's October 12 letter was
issued 14 days before the election.
Up until January (1979), Respondent St. Francis had
granted pay raises twice a year. The first raise of the
year was usually given in January or February and nor-
mally was 6 to 7 percent. Merit increases were also
given once a year to employees on their anniversary date
of employment with the hospital. Then came Respondent
St. Francis' letter dated January 16 referred to above.
That letter caused much employee dissatisfaction.
Administrator David Rose, who was appointed by Re-
spondent St. Francis to the job of administrator on Sep-
tember 19, was a senior vice president of American
Health Care Management, Inc. He testified that when he
arrived at St. Francis Hospital he discovered that the
hospital had been under considerable difficulty with
communicating with its employees, its personnel policies,
and the pay scale. Rose also referred to the fact that
when he arrived a petition for an election had been filed.
In sum, David Rose's testimony was that Respondent St.
Francis took the actions described above for valid busi-
ness reasons because other hospitals had increased wages,
and there was a shortage of nurses resulting in the clos-
ing of two units.
The Alleged Interrogation of Employees
Concerning Their Union Activities
The complaint alleges several instances of interroga-
tion of employees concerning their union activities. The
evidence reveals that admitted supervisors on numerous
occasions asked staff nurses why the employees wanted
the Union, how they felt about the Union, or asked ques-
tions concerning the employees' protected concerted ac-
tivities.
Respondent St. Francis contends that the interrogation
in question did not interfere with or coerce the employ-
ees with respect to the free exercise of their rights under
the Act in that there is no evidence that the staff nurses
felt threatened or feared reprisal from the hospital as the
result of the discussion that occurred. Respondent St.
Francis further contends that, absent that evidence, the
hospital supervisors did not violate Section 8(a)(1) of the
Act.
The complaint alleges that, on August 23, Supervisor
Irene Myer interrogated a staff nurse. The record reveals
that Myer had conversations with two staff nurses on
that date, Debra Haddix and John Ackerman. Ackerman
testified as follows:
She [Myer] wanted to know what my feelings were.
I told her I was pro-union and she stated, "-well,
why not give the hospital a chance? There's going
to be a new administrator." She told me I was a
great guy. She said she would be disappointed if I
voted no, and I said, "Save your time. You're wast-
ing your breath."
Debra Haddix testified that she had a conversation
with Irene Myer on that day in which Myer asked her
what her opinion was of the Union. Haddix also testified
that Myer then asked Haddix what advice Haddix might
give her as a member of management, and Haddix stated
that she should just "stay out of it" and Haddix then got
up and left.
The complaint further alleges that on September 3,
1979, Supervisor Mardell Kuluzny interrogated a staff
nurse. The staff nurse, Joan Wolf, testified that Kuluzny
asked her what her feelings were about the Union and
why she wanted the Union. Wolf responded, at length,
telling her what her feelings were about the Union; that
the nurses needed to be unified because they were losing
power and, as a result, patient care was on the decline;
and that if nurses would get their words into action they
might be able to improve. Supervisor Kuluzny responded
by asking Wolf if she "honestly" believed that a union
can do the things that she was "looking for it to do."
That meeting between Kuluzny and Wolf was precipitat-
ed by an earlier encounter in which Kuluzny stared at
the union button then being worn by Wolf. Wolf told
her that she was wearing the union button because she
supported the principles of the Union. Without saying a
840
ST. FRANCIS HOSPITAL
word, Kuluzny turned on her heel and walked away
from Wolf. Shortly thereafter, Kuluzny called Wolf on
the telephone and told her that, before she lost all "pro-
fessional respect" for Wolf, she wanted to talk to her.
The meeting previously discussed between Kuluzny and
Wolf was the result of that request.
The complaint alleges that, on September 7, Rose
Reitz interrogated a staff nurse. Staff nurse Irene Dawy-
duik testified that, on September 7, Supervisor Reitz
asked her how she "felt about all the commotion, the
Union-anti-union things going on in the hospital."
Dawyduik responded that she was busy and would
prefer not to discuss it. Reitz continued by stating that
they did not need a third party. And that "if you just
give us 1 year we would take care of it. Give us I year."
She repeated that several times. Reitz testified, at the
hearing on objections, that she was not directed to ascer-
tain nurses' union sympathies, that she was exhorted "not
to inquire about nurses' individual feelings regarding the
Union and that she did not and would not, ask individual
nurses whether they were pro or anti-union."
The complaint alleges that on October 12, 1979, a su-
pervisor interrogated a staff nurse. Staff nurse Betty
Wilcox testified that on the day before the election Su-
pervisor Helen Gerow telephoned her at home and told
her that she, Gerow, was calling with regard to a letter
that the hospital had received that day, that she knew
she would not see Wilcox before the next evening and
she wanted to call Wilcox because she was concerned.
Gerow said that the letter "said something to the effect
. . .that we the undersigned are in favor of the Union,
and that my signature was among the signatures listed,
and she wanted to be sure my name had not been used
illegally." Gerow then asked Wilcox if she had signed
the letter, and Wilcox responded in the affirmative and
told Gerow that that was not what the letter said.
Gerow then asked her what the letter said. Wilcox told
her that it was concerning the "3M Company" and how
much they were being paid by St. Francis Hospital.
Promises of Benefits and Improved Working
Conditions
In the incidents alleged in the complaint, supervisors
and other management personnel repeatedly promised
staff nurses improved benefits and conditions of employ-
ment in order to dissuade them from supporting the
Union. The evidence reveals that rather than making
specific promises of benefits and improved working con-
ditions the supervisors stated to the staff nurses that
grievances would be resolved without a third party (the
Union) if they gave the new management headed by
David Rose a chance. In a conversation between Super-
visor Nancy Sykora and Francine Hanson which oc-
curred on October 15, Hanson testified that Sykora said,
"What is it you girls are really unhappy about? You have
your 10 percent raise. What else could you possibly
want?" Hanson replied by stating other things they were
considering, including such benefits as weekend differen-
tial rate for seniority, job security, and job descriptions
in the contract.
Respondent St. Francis contends that the statement,
"Give the new hospital management a year," was pro-
tected speech under Section 8(c) of the Act. 5
Alleged Threats of Reprisals Against Employees'
Continued Support of the Union
The complaint alleges that, on several occasions, su-
pervisors made threats of reprisals against the employees
for their continued support of the Union. Staff nurse
Maureen Szymanski testified that, on or about August
17, Supervisor Helen Gerow told her that at one of the
previous coordinating counsel meetings the subject of
pre-op teachers was brought up by Supervisor Mardell
Kuluzny who made the statement that she felt that more
pre-op teachers should be trained because two of the
teachers (Szymanski and Karen Emmerson) were inad-
equate to teach patients pre-op because of their "Union
involvement."6
Barbara Janusiac testified that, on September 6, Super-
visor Karen Keys told a staff nurse after that staff nurse
stated, "I need to make a call before lunch," that she
would not be able to do this once "you have a union."
Maureen Szymanski further testified that, on Septem-
ber 11, Supervisor Renata Alonte said to her, "Maureen,
you know I do not like the idea of union." Szymanski
said, "Why do you feel that way?" Alonte replied,
"Well, for one thing, if the Union were to get in, the em-
ployees would no longer be able to come to me with
their problems. They would go to a union steward."
I American Health Care Management, Inc., headed by Administrator
David Rose, assumed management responsibility of the hospital on Sep-
tember 19, almost I month after the petition for an election had heen
filed. The new administration's request that it be "given a year" was tan-
tamount to a request that it be given time to prove itself before staff
nurses chose to be represented by the Union. Respondent St. Francis
contends that the General Counsel's argument that the new administra-
tion request that it be "given a year" constituted an implied promise of
benefits assumed far too much. It argues that under the circumstances of
American Health Care Management's arrival at the hospital the General
Counsel's view would mean that almost any election statement would
constitute an implied promise of benefit. If one accepts the General
Counsel's view, election statements as innocuous as "Unions are not in
the best interest of nurses" or "Unions are unnecessary" would constitute
implied promises that working conditions at the hospital would be im-
proved by rejecting the Union.
However, the General Counsel argues that Sykora's statement to nurse
Hanson on October 15 about the pay raise was meant to show that man-
agement had already started its campaign to improve wages and working
conditions. The General Counsel further argues that the timing, content,
and frequency of such statements belie their innocence and ambiguity and
that, on its face, the statement says that, if management fails to give the
employees everything they want within I year, the nurses can again seek
union representation. In the hope that nurses would believe this promise,
management repeated it during the entire 2 months prior to the election,
including Rose's speech to the nurses 2 days before the election. Al-
though the promised benefits are not specifically stated, the message was
obvious (especially after the October 12 wage increase and other prom-
ises) that management would improve conditions if the nurses rejected
the Union. The General Counsel cites Royal Petroleum Corporation, 243
NLRB 508 (1979). and Hubbard Regional Hospital, 232 NLRB 858 (1977).
The statement in question made in the context described above takes it
out of the protection of Sec. 8(c) of the Act. In agreement with the Gen-
eral Counsel, I find it to be an independent violation of Sec. 8(aXI) of the
Act.
6 Their duties included the teaching of pre-op classes in which patients
are instructed, prior to surgery, as to what to expect before, during, and
after surgery. The classes were held 5 nights a week. Sunday through
Thursday
841
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Staff nurse Joan Wolf testified that, on October 11,
Hospital Administrator David Rose called a meeting in
the seventh floor auditorium of nurses, maintenance men,
secretaries, and office workers. During the meeting Wolf
asked Rose about Respondent 2M, stating that the nurses
felt "really under duress." He told her, "If the Union
wins, 2M stays. If the Union doesn't win, 2M goes."
Staff nurse Irene Dawyduik testified that, on October
15, David Rose, during the general meeting discussed
above, stated to the employees as follows:
He discussed money things such as salary, that we
can't count on having a better salary. We cannot
count on having better benefits, anything like this
would take anywhere up to several years, and that
we shouldn't even be fooled by the fact that the
Union can help us.
Staff nurse Francine Hanson testified that, on October
15, Supervisor Nancy Sykora told her that the Union "is
bringing things up all over the hospital, it's destroying
us. You will not be allowed to speak to me if you have a
problem or a grievance, you have to go through a union
steward. This would destroy our relationship among us
fellow nurses. You'll have to go through a union ste-
ward."
Staff nurse Patricia Plakut testified that, on October
19, Supervisor Karen Keys wanted to talk to her
throughout the day.
She kept telling me that she wanted to talk to me
for about 5 minutes. I told her that I wasn't availa-
ble at that time. I couldn't talk to her at that time. I
was filling out a report sheet. I was doing some of
my charting .... Karen sat down across the table
.... And she just sat there and she was looking at
me, and I looked over at her and I had just looked
at her and she said, "just 5 minutes," and I said, "I
can't right now," and she may have repeated it one
more time, "just 5 minutes," and I said, "I can't,
you know. I'm busy right now," and she got up and
she said, "Okay just wait until you want to talk to
me about something." and then she left the unit.
Nurse Plakut further testified that she had had short
discussions with Supervisor Keys previously and, when
Plakut was asked what the discussions were about, she
said that she assumed that, in the morning, Supervisor
Keys was called to a management meeting and in the
afternoon she would usually come around, as would the
other head nurses.
They would come around in the afternoons and just
take us away for about 5 minutes or so, they said,
and would give us papers from the hospital.
Q. What was the general subject of these things
that they gave you?
A. Like anti-union things.
Q. Did this happen often?
A. Yes it did.
Q. As a result of these meetings were the super-
visors away from their normal post more than was
normally the case?
A. Yes.
Nurse Plakut further testified that a supervisor was
normally in the unit sitting at a desk during the shift. But
during the union campaign they were away from their
post attending management meetings almost every morn-
ing. She said that, during the absence of the head nurses,
an RN on the unit would take over, including herself.
She further testified, "It got to be that you knew that
they were going to go to the meetings in the mornings
and you knew that at some time during the day you
were going to be approached and they would take you
aside and you know, give you the same kind of talk-
just, anti-union kind of things. We had a real good
friendship and it really put a strain on that friendship."
Plakut testified further that it made it difficult for her to
function and to perform her duties as a nurse.
Nurse Nancy Miljour testified that, on October 24, Su-
pervisor Mardell Kuluzny was standing at the desk in
her unit when she went to the desk to do her 24-hour
report. Kuluzny told Miljour that she wanted to speak to
her.7 Miljour told Kuluzny that she had a 24-hour report
to fill out. Miljour asked if she could fill out the report
during the conversation. Kuluzny told her that she could
and proceeded to tell Miljour that she was very sur-
prised at what she had seen on TV.8 Miljour replied that
she did not know why Kuluzny was surprised because
Kuluzny knew that she was for the Union. Kuluzny had
some papers in her hand and showed them to her. One
was from the hospital and the other was from the Union.
Miljour told her that she had not received either in the
mail and then looked them over with Kuluzny. A discus-
sion about the Union and economic strikers ensued.
As she was leaving, Kuluzny turned around and point-
ed her finger at Miljour and said, "You wanted a second
chance at nursing didn't you?" Miljour testified that she
was taken aback and responded, "Well, you know I
did."9 Miljour further testified that Kuluzny then said,
"Just remember that we want our second chance and we
want ours. Remember that when you vote."
Miljour testified that at the time there were other em-
ployees in the area, including nurses aides. She said she
was embarrassed because she was afraid that they were
going to think she lost her nurse's license and that the
hospital gave her a second chance to be a nurse. Miljour
said she was "absolutely mortified. I just wanted to
crawl in a hole." Miljour further testified that she felt in-
timidated by what Kuluzny said, and humiliated because
there were other people present.
I Supervisor Kuluzny was an in-service director who trained new
nurses concerning hospital procedures, forms, and policies. She also in-
structed the nurses as to their duties. She was not normally expected to
be at a supervising station. Supervisors Gerow and Alonte were Miljour's
supervisors at the time.
a Miljour appeared on the TV news program the night before and
made comments concerning the Union.
9 Miljour came to Respondent St. Francis from another hospital,
where she had just started nursing. That hospital was pushing primary
care and it was hard for Miljour to keep up with the pace. She gave her
notice after 2 months and applied at St. Francis. She revealed to St.
Francis the reason she left the other hospitals, that she could not handle
the pace at that time. Miljour had told Kuluzny of this experience during
the orientation.
842
ST. FRANCIS HOSPITAL
Staff nurse Susan Ellis testified that, on October 25,
Supervisor Rose Reitz came to her at or about 10 or 11
a.m. while she was charting and said that she would like
to talk to Ellis after Ellis was done with hei charting.
Ellis asked what it was about. Reitz replied, "The
Union." When Ellis told her she did not want to discuss
it any further Reitz said, "you had better." Ellis then
went to the back of the conference room and Reitz
closed the door.' 0 Ellis testified further that she got very
sick of the subject and did not want to hear anything
more about it. It upset her when she asked not to talk
about it any further and the supervisors insisted that she
did. Usually, she just let them say what they wanted to
say. She said that the morale of the hospital was very
low, that nurses could not trust the supervisors, and that
one did not know to whom to turn in case a problem
arose.
Respondent St. Francis' Antiunion Campaign
Allegedly Independently Violated Section 8(a)(1) of
the Act
The complaint alleges that Respondent St. Francis' an-
tiunion campaign independently violated Section 8(a)(1)
of the Act. In support of this allegation the General
Counsel relies on the totality of the evidence in support
of the alleged 8(a)(1) activity discussed above. The alle-
gation is that Respondent St. Francis conducted a sys-
tematic antiunion campaign by interrogating the nurses
almost daily concerning their union sympathies and ac-
tivities. The General Counsel contends that Respondent
St. Francis' campaign of frequent and intensive meetings
on a one-to-one basis by the supervisors and other man-
agement persons with the nurses was in reality a manner
of interrogation. In addition to the evidence submitted in
support of the 8(aX1) allegations previously discussed,
the General Counsel relies on other incidents in which
representatives of Respondent St. Francis met with regis-
tered nurses.
Examples of such one-on-one meetings follow: Nurse
Susan Ellis had a conversation about the union campaign
with Rose Reitz on September 10 and with Supervisor
Jackie Solachek on September 29. Reitz asked other
nurses to meet with her and speak with her privately on
a regular basis. The record also reveals that Ellis had dis-
cussions with Solachek every time the hospital issued a
letter concerning the Union campaign. Nurse Patricia
Plakut was summoned to a private meeting with Reitz
on September 26. She met with Supervisor Keys Octo-
ber 1, and had frequent meetings concerning the antiun-
ion literature issued by Respondent St. Francis.
The evidence establishes a practice of supervisors at-
tending management meetings in the morning and meet-
ing with the nurses later in the day to distribute and dis-
cuss literature. On September 10, nurse Joan Wolf was
asked, by Marilyn Fanecki, head of the intravenous ther-
apy department, whether the nurses would need a union
if the administrative problems were resolved. On Sep-
tember 20, Wolf was directed by Supervisor Solachek to
read a letter from management after which Solachek
10 At the time these remarks were made several nurses aides and one
unit clerk were present
asked Wolf if she had any questions. Wolf had other
such contacts with supervisors. She testified that, on the
Sunday before the election, Supervisor Kuluzny repeat-
edly asked nurse Zakrzewski to talk about the election.
Zakrzewski testified that on that day her unit was full
to capacity and, of the 21 people in the unit, 4 were
dying. They were being watched closely and it was a
matter of who would die first. The nurses were extreme-
ly busy. Notwithstanding, Supervisor Kuluzny and Patty
Beagle came to her unit frequently during the day and
kept approaching staff nurse Geanine seeking to speak
with her. Geanine kept telling them that she did not
have time, that she was too busy. During that afternoon
they approached her three times.
After one of the patients died, staff nurses were minis-
tering to the bereaved family, whose members were
standing near the nursing station. The nurses were trying
to make arrangements for the funeral and the disposition
of the clothes and valuables that the patient had brought
in with him. In the midst of all this, Supervisor Kuluzny
said to Geanine, "I hope you take the time to get the in-
formation to make an informed decision so that you can
make a responsible vote" on election day. Wolf testified
that the whole episode made her angry.
Staff nurse Irene Dawyduik testified that on Septem-
ber 6, Supervisor Solachek walked onto the floor and
started talking about unions and her antiunion feelings.
The other nurses walked away but Dawyduik remained.
Solachek told her that "with the Union we would get
nowhere. As a matter of fact, we might have less than
we already have." She also testified that on September 7,
at or about 8 p.m. Supervisor Reitz appeared and asked
if she could talk to Dawyduik and asked her to step into
the backroom (medication room) and to close the door.
Dawyduik said, "She started just generally discussing
how I felt about a third party being involved. She re-
peated herself over. This lasted about 20 minutes, and
she was constantly talking about no third party was nec-
essary. We could take care of what we needed with a
new management team and since Sister Michelle was no
longer employed there this should have taken care of our
unhappy problems." She then asked, "Why we would
really need another person. Why can't we sit together
and discuss this as one family and friends and take care
of it.When asked how many such meetings she had in
the course of the union campaign, Dawyduik responded,
"I know of 5 to 6 for sure. There might have been more.
There's many confrontations on the floor as a supervisor
would come around for report time."
On the day of the election Supervisor Solachek asked
staff nurse Karen Werra if she voted for Solachek.
Werra replied that she did not see her name or anybody
else's name on the ballot. Supervisor Solachek replied
that she was taking the election "personally."
Staff nurse Nancy Brandt testified that, on October 19,
she was in the hallway next to Sister Pacis' office. Pacis
emerged and announced she was holding a meeting right
then. Brandt testified, "and she grabbed all the people
that were in the vicinity and said, would you come into
our lounge." Five or six staff nurses went into the lounge
with Sister Pacis. Pacis had a legal-sized letter from Hos-
843
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pital Administrator David Rose and passed out a copy to
each of those present, declaring "I will let you read for
yourselves," and then she asked various people in the
room to read various portions of the letter aloud to the
group. Brandt said that she would not read the letter
aloud, that she was capable of reading it on her own free
time, and that she was busy and had work to do. Brandt
said Pacis gave her an angry look and then called upon
another person to finish reading the letter out loud.
Brandt said the meeting took about 15 minutes of work-
time. When asked if this occurred more than once,
Brandt said that it happened repeatedly prior to that for
about 2 weeks. Brandt testified further, "I had talked to
some of my co-workers. When I found out that they
were reading portions of letters out loud to groups, I
said, 'Are you really reading them out loud?' And both
of the girls that I talked to said, 'Yes.' And I said, 'Why?
You don't have to do that.' And they said, 'Well, we re-
alize it's like a child's game but we're afraid not to. So
we're going to go along with the game."'
The record is replete with incidents such as those de-
scribed above. Staff nurses Janusiac, Susan Jones, and
others testified that it was almost a daily occurrence for
nurses to be approached by a supervisor to discuss an-
tiunion literature.
In agreement with the General Counsel I find the fore-
going evidence establishes that Respondent St. Francis
engaged in an intensive, high-pressured, systematic an-
tiunion campaign in violation of the nurses' Section 7
rights.
Hospital Administrator David Rose admitted that man-
agement had inconvenienced the staff nurses. He said he
apologized to them for any inconvenience or any stress
that the campaign brought about "within our activities
telling the management's side of our story." Supervisor
Rose Reitz admitted that supervisors, including herself,
did have meetings with and distributed letters to the
nurses.
The General Gounsel contends that Respondent St.
Francis' antiunion campaign did more than "tell the
story." It amounted to a solicitation of employee views
and thus constituted illegal interrogation. The campaign
is an example of how frequent threats, promises, personal
attacks, and appeals, all in an environment of stress, can
provide an atmosphere which is the same as or worse
than direct interrogation, without using the usual words
found to be unlawful. By the nature of its forcefulness,
pressure, and frequency, the campaign was designed to
force the nurses to verbalize their feelings about the
Union to the supervisors. The supervisor did more than
state the hospital's position. "They used every trick that
a professional interrogator used against a prisoner of
war. They created stress, pulled rank, cajoled, threat-
ened, promised, personalized the issue and otherwise at-
tempted to brain-wash the nurses."
I agree with the General Counsel that the tactics used
by Respondent St. Francis went well beyond free speech
permitted by Section 8(c) of the Act. 1 find that Re-
spondent St. Francis' antiunion campaign independently
violated Section 8(aXl) of the Act as alleged in the com-
plaint.
The Alleged Illegal No-solicitation/No-distribution
Rules
Rules 52 and 56 contained in Respondent St. Francis'
employee handbook dated January 1, 1976, and in effect
during times material herein provide:
52. SOLICITATIONS ON YOUR OWN TIME,
PLEASE
You should not be subjected to buying candy,
cleaning products, housewares, and like items while
at work.
You should not be asked or forced to sign peti-
tions, membership cards, or similar items just be-
cause you are employed at St. Francis Hospital.
Therefore, employees who wish to engage in
such non-hospital business and/or charity functions
are asked to do so outside of the hospital property.
Work time is designed for productive patient
care. To assure employees that their right to avoid
sales and requests will be upheld and to guarantee
that patients aren't paying for such through their
room rate charge, the following will be enforced.
Non-hospital business must be conducted outside of
the work station and on your own time (breaks and
lunch periods for instance). This will also apply to
the interference of other employees during your
free time while they are engaged in work activities.
[Emphasis supplied.]
Any employee who engages in non-hospital busi-
ness on hospital time in the work area will be sub-
ject to discipline, including a three-day suspension
without pay or discharge for flagrant violations.
Any employee who engages in any activity
which causes disruptions to another employee's
work security, or the stability and operation of the
hospital and/or who threatens any other employee
directly or indirectly will be subject to immediate
discharge.
56. YOU ARE SECURE IN YOUR JOB. WE'RE
NOT IN BUSINESS TO FIRE PEOPLE
It costs many dollars to hire, orient and train em-
ployees. We are selective in whom we hire because
we want long term employees. We hired you in
hopes that you would stay with us and grow with
us.
You can be assured that your job holds a signifi-
cant amount of security. Here's how we look at it.
People of good sense prefer to live and work in an
orderly way. Commonly accepted rules of conduct
help maintain good relationships between people.
They promote responsibility and self development.
You avoid misunderstandings, frictions, and other
problems by avoiding thoughtless or wrongful acts
such as:
Dishonesty.
844
ST. FRANCIS HOSPITAL
Damage, loss or destruction of company, em-
ployee, patient or visitor property due to careless
or willful acts.
Unauthorized removal or use of property be-
longing to the company, any other employee, any
patient or any visitor.
Being under the influence of, or possessing or
using alcohol or illegal drugs during work time
(refer to the hospital's policy on Behavior/-Medi-
cal Problems.)
Loafing or sleeping on the job, inefficient per-
formance of duties, incompetence, or neglect of
duty.
Failure or willful refusal to perform work as
directed, insubordination.
Negligence in observing fire prevention or
safety regulations, or failure to report on-the-job
injuries or unsafe conditions.
Excessive or unexcused absenteeism or tardi-
ness.
Unwillingness or inability to work in harmony
with others, discourtesy, or conduct creating dis-
harmony, irritation or friction.
Fighting, gambling, horseplay, or using pro-
fane, obscene or abusive language while at work,
threatening, intimidating or coercing others on
company premises, or carrying unauthorized
weapons.
Soliciting or selling on hospital time in the
work place.
Falsification of records.
Failure to maintain confidentiality of hospital
information.
Failure to maintain dignity of the patient.
Violation of hospital policies or any other
commonly accepted reasonable rule of responsi-
ble personal conduct.
You are secure in your job. However, violation of
the above rules is just cause for disciplinary action up
to and including discharge. [Emphasis supplied.]
The General Counsel contends that inasmuch as Rule
52 allows employees to engage in solicitation and distri-
bution only "outside the work station and on your own
time" subject to discipline, suspension and/or discharge,
as stated in Rule 56, that such rules are presumptively
unlawful, citing N.LR.B. v. Baptist Hospital, Inc., 442
U.S. 773 (1979), and Beth Israel Hospital v. N.LR.B., 437
U.S. 483 (1978). Those cases hold that rules prohibiting
solicitation and/or distribution of union literature are
presumptively invalid, so far as such rule prohibit solici-
tation by employees during their nonworktime of other
nonworking employees on the premises of the health
care institution, other than "immediate patient care
areas" or insofar as such rule prohibits the distribution of
union literature by employees during their nonworktime
in nonworking areas.
Respondent St. Francis adduced no evidence to estab-
lish that the rules "necessary to avoid disruption of
health care operations or disturbance of patients." Inas-
much as these rules proscribed solicitation in all work
areas, and there is no showing in the record that they are
necessary to avoid disruption of health care operations
or disturbance of patients, I find that Rules 52 and 56 are
unlawful and overlybroad as they impermissively limit
solicitation in work areas which are not primarily patient
care areas, as alleged in the complaint.
Disparate Treatment
The complaint also alleges that, beginning on August
23 and continuing throughout the preelection campaign
to October 26, Respondent St. Francis conducted a sys-
tematic antiunion campaign by engaging in a pattern of
almost daily conduct during which its supervisors and/or
agents met with RNs on the employees' worktime and in
the employees' work area to discuss Respondent's antiun-
ion literature and to otherwise persuade the RNs to
reject the Union. In addition, during the same period,
Respondent conducted antiunion group meetings with
the RNs on their worktime. The complaint further al-
leges that, by registered letter dated September 26, the
Union requested that Respondent provide to the Union
equal time and access to employees in the voting unit to
conduct meetings and to converse with them in ways
comparable to those utilized by Respondent. Respondent
St. Francis has failed and refused and continues to fail
and refuse to grant the Union's request for equal time
and access to employees in the unit.
I find that the evidence overwhelmingly supports the
allegations and I find that Respondent St. Francis' con-
duct of coercive antiunion solicitation was not only vio-
lative of the National Labor Relations Act but violative
of its own no-solicitation/no-distribution rules discussed
above. Here the Employer itself engaged in antiunion so-
licitation which, if engaged in by employees, would con-
stitute a violation of Rules 52 and 56. The Employer's
conduct created an imbalance in the opportunities for or-
ganizational communication. Having found that the rules
are illegal and independently violative of Section 8(aX1)
of the Act, I further find that the group meetings con-
ducted by Administrator Rose and the many one-to-one
encounters by the head nurses and other management
persons with staff nurses violated those rules. Those rules
prohibited legitimate union activities on Respondent St.
Francis' premises by prohibiting lawful solicitation in
nonpatient care areas on nonworktime. Respondent St.
Francis violated the rules when it conducted its own an-
tiunion campaign. Thus Respondent St. Francis' main-
taining such rules and engaging in an antiunion campaign
in violation thereof requires a remedy to eliminate the
"imbalance." I will, therefore, recommend that Respond-
ent St. Francis be ordered to grant equal access to its
employees to the Union with no requirement that it pay
for the employees' lost worktime. N.LR.B. v. United
Steel Workers of America, CIO [Nutone, Inc.], 357 U.S.
357 (1958); N.L.R.B. v. Babcock & Wilcox Co., 351 U.S.
105 (1956).
The Alleged Violation of Section 8(a)(3) of the Act
The complaint alleges that, on or about November 5,
Respondent St. Francis violated Section 8(a)(3) of the
Act by refusing to pay registration fees and grant time
off to nurses Maureen Szymanski and Lois Mecklenberg
845
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to attend a seminar approved for continuing education
requirements.
The evidence reveals that Staff Nurses Council con-
ducted a workshop for registered nurses on November
14. Sometime in October or early November, Szymanski
and Mecklenberg submitted their applications to the
nursing office to attend this workshop with pay, and for
Respondent St. Francis to pay the registration fees.
Mecklenberg testified that she asked the secretary in the
nurses office of Respondent St. Francis if she could
attend the seminar. The secretary told her that she did
not see why not. "I should fill out the application and
bring it out to the office." Mecklenberg did fill out the
application form and took it to the nurses' office.
Supervisor Irene Myer called Mecklenberg a few days
before the date of the seminar and asked Mecklenberg to
come to the office. Supervisor Myer told Mecklenberg
that she could not attend the seminar, that she had a note
from David Rose stating that the hospital would not
condone attending a seminar that was put on by the Staff
Nurses Council. Supervisor Myer told her that she could
attend on her own time and with her own money.
Szymanski's request was also denied. On November 5,
Szymanski received a note signed by David Rose stating,
"The hospital does not support seminars conducted by
the Union," but that Szymanski could attend on her own
time and money. Szymanski testified that she attended a
seminar in 1978 conducted by the Staff Nurses Council
on hospital time and paid for by Respondent St. Francis.
Szymanski further testified that she had not previously
had an application denied to attend a workshop and that
her applications over the prior 12 years to attend work-
shops paid for by Respondent St. Francis had been ap-
proved. (Mecklenberg had worked for Respondent St.
Francis only since January 1978 and had no past history
concerning the attendance of workshops and seminars.)
The General Counsel contends that Szymanski's denial
could not logically be based on the reason that the pro-
gram was being offered by the Staff Nurses Council be-
cause she was authorized to attend a program conducted
by that group in 1978. The only difference was that, in
November 1979, Szymanski was known to be prounion.
The General Counsel further contends that the only
reason for the denial of Szymanski's request was her
prounion role and therefore was in violation of Section
8(a)(3). Thus, having denied Szymanski's request, Re-
spondent had no alternative but to also deny Mecklen-
berg's request even though she was not a known union
adherent. The denial of Mecklenberg's request violated
Section 8 (aX3) because it amounts to an employer dis-
criminating against a group of employees in order to
reach the prounion employees. In agreement with the
General Counsel, I find that Respondent St. Francis, in
denying Szymanski's and Mecklenberg's request to
attend the seminar, violated Section 8(a)(3) and (1) of the
Act.
The Unit
The complaint alleges and the answer denies that the
unit of registered nurses was fully described in the Deci-
sion and Direction of Election and addendum thereto is
appropriate for the purpose of collective bargaining. The
description of the unit appears above.
On September 28, the Regional Director of Region 30
issued a Decision and Direction of Election, Case 30-
RC-3611, finding the above-described unit to be an ap-
propriate unit. Respondent St. Francis did not request
review of this decision nor did it contend that a unit of
registered nurses was inappropriate at the preelection
hearing. Respondent St. Francis did not dispute the ap-
propriateness of the above-described unit or present any
evidence on that point during the instant proceedings. I
find, therefore, that the unit described above and found
to be an appropriate unit in the Decision and Direction
of Election and the addendum to be an appropriate unit.
National Medical Convalescent of San Diego d/b/a Ojai
Valley Community Hospital, 254 NLRB 1354 (1981);
Newton-Wellesley Hospital, 250 NLRB 409 (1980).
The Current Majority
The General Counsel contends that, as of September
22, the Union has represented a majority of the nurses in
the appropriate unit for purposes of collective bargain-
ing. The record reveals that, on August 6 and 14, Union
Representative Schwartz conducted meetings with
nurses employed by Respondent St. Francis. At those
meetings Schwartz read the language on the authoriza-
tion card to the employees and explained that, by signing
the card, the employee has designated the Union as his
or her collective-bargaining representative. He also in-
formed the nurses on the contact committee of the
proper procedure for asking other nurses to sign this
card. Schwartz told the nurses that the card means what
it says, designation of bargaining representative, but if a
petition for election is filed with the National Labor Re-
lations Board the card could be used as a showing of in-
terest. On or about August 21 or 22 Schwartz received
the completed and signed cards from the contact com-
mittee.
The Union had received 123 signed authorization
cards and on that date Respondent St. Francis stipulated
that the signatures on the cards were genuine. To estab-
lish majority status, the General Counsel offered a list of
names and addresses (Excelsior list) for the payroll period
ending September 22. The list contains 207 names which
means that, as of September 22, 123 out of the 207 unit
employees signed authorization cards.
On its face, the authorization card clearly designates
the Union as the collective-bargaining representative.
The card contains no reference to an election although,
as indicated above, Schwartz referred to the possible use
of the cards in an election petition. Schwartz did not
state that the card was to be used only for an election
nor did he in any other manner misrepresent the purpose
of the card. Thus, with the stipulation of authenticity of
the signatures and the General Counsel having estab-
lished the validity of the cards, the burden of proof shift-
ed to Respondent St. Francis to establish that the cards
were not valid. Respondent St. Francis presented no evi-
dence to challenge the validity of the authorization
cards. Therefore, I find that the cards are valid and the
record establishes conclusively that, as of September 22,
846
ST. FRANCIS HOSPITAL
the Union has represented a majority of the nurses in an
appropriate unit for the purpose of collective bargaining.
N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
V. RESPONDENT MODERN MANAGEMENT, INC.
The complaint in Case 30-CA-5698 alleges that,
through various acts committed by supervisors of Re-
spondent St. Francis, Respondent 2M violated the Na-
tional Labor Relations Act."1 The General Counsel al-
leges that Respondent 2M was responsible for and con-
trolled the antiunion campaign described above or was
the co-manager of said campaign with Respondent St.
Francis. The 8(aX1) violations alleged in the complaint
against Respondent 2M are identical to most of those al-
leged against Respondent St. Francis. It alleges that su-
pervisors and management persons associated with Re-
spondent St. Francis named in the complaint are also su-
pervisors and/or agents of Respondent 2M and a finding
of 8(1) violations by those supervisors and management
persons is a finding that Respondent 2M and Respondent
St. Francis are equally responsible and in violation of
that section of the Act.
In other words the General Counsel has proceeded on
a totally new theory: that because Respondent 2M "was
responsible for and controlled the campaign" it constitut-
ed the "principal and/or manager" or at least a "co-prin-
cipal and/or co-manager" of the campaign and is legally
responsible for some, although not all'2 the alleged un-
lawful acts committed by hospital supervisors.
As previously indicated, the issue with respect to
Modern Management is whether it is responsible for the
acts of supervisory registered nurses, employees of Re-
spondent St. Francis, to whom it provided advice and in-
struction. Respondent 2M contends that it cannot be held
responsible for acts committed by the supervisory em-
ployees of Respondent St. Francis as a matter of law in
the absence of a specific allegation that it was acting as
an agent of St. Francis. The General Counsel argues that
Respondent 2M is responsible for and controlled the an-
tiunion campaign or as co-manager and that the supervi-
sors are supervisors and/or agents of Respondent 2M.
The Charging Party contends that, given the fact of con-
trol by Respondent 2M over these supervisory employ-
ees, sound public policy and the plain meaning of the
words in the National Labor Relations Act require a
l1 The charge against Respondent 2M was filed by the Union on
March 5, 1980. It alleged that Respondent 2M, "for itself and as an agent
of St. Francis Hospital, had engaged in various conduct violative of Sec-
tion 8(aXl), (3) and (4) of the Act." Seven months thereafter, on October
6, 1980, the Regional Director dismissed that charge in its entirety. He
concluded that 2M had not directly committed any "violative conduct"
and that, with respect to the alleged agency, that 2M had neither in-
structed the hospital supervisors to commit unfair labor practices nor had
it been given "complete authority to speak and act on [the hospital's]
behalf in all situations" involving the union campaign. Two weeks later,
without stating reasons, the Regional Director revoked his dismissal and
issued the instant complaint against Respondent 2M alleging that Re-
spondent 2M violated Sec. 8(aXI) of the Act.
i' The 8(aX)) allegations involving 2M are identical to those in par.
11(2) of the complaint against the hospital. However, Respondent 2M is
not alleged to have been a "co-manager" or "co-principal" with respect
to the other 8(aXI) or 8(aX3) allegations against the hospital; for example,
the alleged improper wage increase; the alleged per se illegal and dispar-
ate no-solicitation rule enforcement, and the allegedly improper denial of
seminar expense reimbursement.
finding that Modern Management is responsible for these
acts. Apparently, this issue has not been resolved in any
previous Board decision.
Respondent 2M meets the Board's jurisdiction stand-
ards and has admitted that it is an employer engaged in
commerce within the meaning of the Act. Accordingly,
the Board has jurisdiction over it. At the hearing held
from April 20 through April 23, most of the testimony
presented concerned the role of Respondent 2M in the
union campaign at Respondent St. Francis. Testifying
under subpoena from the General Counsel were Larry
Kruger, chairman of the board of the hospital; William
Van Clief, the comptroller; William Smith, the vice
president in charge of employee relations; Joe Jendusa,
administrative employee; and Rose Reitz, the director of
nursing. Chairman Kruger testified that Respondent 2M
was hired in the summer of 1979 on the recommendation
of Sister Michelle, then the president of the hospital. He
said that the basis for the hiring of Respondent 2M was
the serious problems of employee morale at that time in
the hospital. Apparently, the union organizational cam-
paign by groups of employees including registered nurses
going on at the time had an effect on employee morale.
During the contractual relationship between the Re-
spondents none of the hospital's administrative personnel
assumed or exercised any supervision over the employees
of Respondent 2M.
Respondent 2M was introduced to the administrative
supervisory personnel at the hospital at group meetings
that occurred in late August through early September
1979. Chairman Kruger introduced Respondent 2M rep-
resentatives by name and disclosed that they were there
to help the administrative and supervisory employees
with the organizational campaign that was then in prog-
ress.
After the initial meeting, at which the chairman of the
board and president of the hospital were present, repre-
sentatives of (employees) of Respondent 2M met in small
groups and in individual meetings with Respondent St.
Francis' supervisory personnel from early September
through October 26, the date of the election. Four of Re-
spondent 2M's representatives, including Robert Wil-
liams, staff manager; Ed Young, associate; James
Bannon, principal; and Norman Weisman, associate, were
at the hospital on almost a daily basis during the course
of the campaign. They were given the use of various
rooms in the administrative wing of the hospital and
were permitted to utilize the secretaries to contact super-
visory registered nurses. They met with the supervisory
employees in small groups of approximately five to eight
people and in individual meetings. The meetings oc-
curred approximately once or twice per week starting in
September, but increased in frequency as the election
date approached. They met with the supervisors on a
daily basis the last 10 days prior to the election. In addi-
tion, supervisory employees were encouraged to contact
Modern Management representatives if they had ques-
tions. Supervisors seeking a Respondent 2M representa-
tive would go to the rooms in the administrative wing
where they were located or, if they were not there, they
would ask the administrative secretaries to page them.
847
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joan Boho testified that on several occasions when she
had questions of Respondent 2M personnel she asked a
hospital secretary to page them. On each occasion, she
succeeded in contacting them through the page.
During the course of numerous conferences between
the supervisory personnel and Respondent 2M repre-
sentatives the supervisors were given reading matter to
be distributed to the employees. They were asked to pass
out this literature to individual employees and to ask
them what they thought about the written materials.
These contact efforts lasted between 5 minutes and an
hour depending on the availability of the employees.
Most of the contacts were on the supervisors' and em-
ployees' worktime. The supervisors were asked by Re-
spondent 2M representatives to report back to them con-
cerning the employees' reactions to the individual writ-
ten matter. When making these reports to Respondent
2M representatives, the supervisors would, on occasion,
give the names of employees along with their reactions
to the literature. There is no evidence that any of the su-
pervisors were told to stop that practice. Supervisor
Irene Meyer asked at least 12 employees about their feel-
ing towards the Union and reported them to Respondent
2M representatives. She was not advised to stop this ac-
tivity by either Respondent 2M or Respondent St. Fran-
cis representatives. The preponderance of the evidence
establishes condonation of the illegal practice by Re-
spondents.
Within 2 or 3 days of the election the representatives
of Respondent 2M met with several supervisory employ-
ees and discussed the prospect for a no-union vote. Re-
spondent 2M representatives had a list of employees
before them and stated that the election would be close,
but that the "hospital would win." They discussed the
leanings of individual employees and asked supervisors
to contact certain employees prior to the scheduled elec-
tion in order to influence their votes.
The evidence indicates that none of the supervisory
employees of Respondent St. Francis had previous expe-
rience concerning union organizing campaigns. They
relied on the advice and instructions of Respondent 2M
representatives in dealing with the employees. The super-
visors who testified stated that the only instructions con-
cerning their one-to-one contact with employees came
from representatives of Respondent 2M. No direct
instructions on handling employee contacts came from
the hospital administrative staff. Rose Reitz, vice presi-
dent of nursing services, was treated as any other super-
visory employee by Modern Management representa-
tives.
Much of the literature distributed to the employees of
Respondent St. Francis by the supervisors was signed by
Bill Smith, Respondent St. Francis' vice president of per-
sonnel services, and under the letterhead St. Francis
Hospital. Some of the literature was written on plain
paper with no letterhead. Certain literature distributed
by Respondent 2M to the supervisors (and not for redis-
tribution) informed the supervisors what they could le-
gally do and not do as supervisors during the campaign.
Joe Jendusa testified that at least four of the supervi-
sory personnel at the hospital had come to him with
regard to their concerns about what they were asked to
do by Respondent 2M. Jendusa advised them that they
should cooperate with and follow the instructions and di-
rections of Respondent 2M personnel. Renata Alonte,
one of the above four supervisory employees, when
questioned about her conversation with Jendusa, said she
could not remember whether or not such a conversation
took place.
None of the supervisory nurses who testified could re-
member in great detail what occurred in the group or in-
dividual meetings. However, it is undisputed that they
were given instructions by Respondent 2M personnel on
how to approach employees, what to say, and how to re-
spond to questions. They, for the most part, followed the
advice and carried out those instructions. They said they
relied on Respondent 2M representatives to advise them
on what they legally could or could not do. Notwith-
standing, they did violate the Act on occasion, as indi-
cated above. Through its advice and instructions Re-
spondent 2M effectively directed the campaign and es-
tablished the tactics to be used by the supervisors. It ap-
pears that Respondent St. Francis gave Respondent 2M
practically full control of the antiunion campaign. Re-
spondent 2M representatives called the meetings, passed
out the literature, and shaped the strategy of the entire
campaign from offices on the hospital premises. They
made reports to Respondent St. Francis concerning what
was being done.
An example of the extent of the authority that was
delegated to them by Respondent St. Francis was their
ability to call a supervisory nursing personnel to numer-
ous meetings without the approval of any of Respondent
St. Francis' officials. They were able to instruct, advise,
and direct the supervisors and, in effect had almost com-
plete control of the campaign. As testified by Alonte, the
supervisors met with Rose in September at which time
he expressed his antiunion philosophy, announced the
pay increase, and promised future improvements at the
hospital. But, he did not instruct them on responding to
the union campaign; nor did he do so in any literature.
The General Counsel contends that the evidence estab-
lishes that Respondent St. Francis "abdicated" its author-
ity in combating the Union and gave this authority to
Respondent 2M; that Respondent 2M exercised full con-
trol for the antiunion effort by controlling the activities
of the supervisory registered nurses; and that Respondent
2M became the employer or co-employer of the supervi-
sors.
On the other hand, Respondent 2M argues that inas-
much as the complaint does not allege that Respondent
2M directly engaged in misconduct or committed unfair
labor practices as an agent of the hospital it cannot be
held liable for the unfair labor practices committed by
the supervisors of Respondent St. Francis. The supervi-
sors are employees of Respondent St. Francis and not of
Respondent 2M. Respondent 2M also argues that the re-
fusal of the General Counsel to proceed on an agency
theory is based on the lack of evidence that the agent di-
rectly committed the unfair labor practices and cites Na-
tional Welders Supply Co., 132 NLRB 660 (1961), and
Sierra Academy of Aeronautics, Inc., 182 NLRB 546
(1970). In the present case, there is neither an allegation
848
ST. FRANCIS HOSPITAL
nor any evidence to show that representatives of Re-
spondent 2M directly unlawfully threatened, interrogat-
ed, or promised benefits to employees, or even had any
direct contact whatsoever with nonsupervisory employ-
ees.
Respondent 2M further argues that the act imposes lia-
bility on an employer, such as Respondent 2M, who does
not employ the employees involved in the labor dispute,
only where the separate respondent either had control
over the rights alleged to have been coerced or re-
strained (Fabric Services, Inc., 190 NLRB 540 (1971); A.
M. Steigerwald Co., 236 NLRB 1512 (1978)), or in some
instances where he instructed or directed the commission
of unfair labor practices. See Dews Construction Corp., a
subsidiary of the Aspin Group, Inc, 231 NLRB 182, fn. 4
(1977), enfd. 578 F.2d 1374 (3d Cir. 1978).
The latter situation is not even alleged here. With re-
spect to the former, there is no record evidence that
shows that Respondent 2M could make or implement
any employment decisions on behalf of the hospital or
assume or exercise any of its managerial rights or duties.
Respondent 2M was retained as and acted solely as an
advisor to the hospital.
Here, Respondent St. Francis supervisors were in-
structed by Respondent St. Francis to accept the advice
and carry out the instructions of Respondent 2M repre-
sentatives. In that respect, their instructions came from
Respondent St. Francis and not from Respondent 2M.
The evidence reveals that none of the supervisors consid-
ered herself as an "employee" of Respondent 2M. By at-
tending the meetings called by Respondent 2M repre-
sentatives, the supervisors were following the instruction
of Respondent St. Francis and, likewise, in carrying out
the instructions given to them from Respondent 2M rep-
resentatives, they were following the instructions of Re-
spondent St. Francis. Consequently, if they refused or
failed to accept the advice and carry out the instructions
of the representatives of Respondent 2M, their punish-
ment would come from Respondent St. Francis (their
employer) and not from Respondent 2M. Likewise, St.
Francis and not from Respondent 2M.
Thus, the employer-employee relationship which exist-
ed prior to the coming of Respondent 2M on the scene
continued to exist after the advent of Respondent 2M. If,
instead of instructing its supervisory employees to heed
the advice and follow the instructions of the representa-
tives of Respondent 2M, Respondent St. Francis' presi-
dent had chosen to locate the representatives of Re-
spondent 2M near his office and himself accepted the
advice and instructions of Respondent 2M and passed
such down to the supervisors rather than arrange for Re-
spondent 2M representatives to deal directly with the su-
pervisors, it would be difficult to argue that Respondent
2M is a co-employer. I do not believe that the arrange-
ment that existed here warrants a different conclusion.
Respondent 2M acted as an advisor or consultant and
not as a co-employer. Inasmuch as agency is not alleged
in the complaint, I do not find it necessary to decide that
question.
The supervisors violated Section 8(a)(l) of the Act by
their interrogations and promises. Their feedback estab-
lished condonation of this conduct by Respondent 2M
and by Respondent St. Francis to whom Respondent 2M
reported. Respondent St. Francis must bear the entire re-
sponsibility for the "anti-union" or "union busting" cam-
paign allegedly controlled and conducted by Respondent
2M. Respondent 2M was engaged by Respondent St.
Francis as a consultant for advice and instructions to
defeat the union organizing campaign. It chose to accept
the advice and act upon it when it instructed its supervi-
sory personnel to heed the advice and carry out the
instructions of the representatives of Respondent 2M. By
giving such instructions to its supervisory employees,
Respondent St. Francis was, in effect, acting on the
advice and pursuant to the instructions of its consultant,
Respondent 2M.
I am convinced that from a public policy viewpoint
there is no basis for imposing liability upon Respondent
2M, inasmuch as the role of 2M in this case was that of a
labor relations advisor to the hospital. There is no evi-
dence that it advised its client to violate the Act. To
hold Respondent 2M liable in these circumstances would
constitute a serious intrusion into an employer's right to
seek legal advice. In that regard, public policy has en-
couraged not discouraged obtaining professional assist-
ance. If the General Counsel's theory is adopted, the
effect would be to discourage a party from seeking such
advice, whether it be from a law firm, labor relations
consultant, or any other professional source. The result
would very well be the commission of more, rather than
fewer, unfair labor practices by uninformed parties.
The Board has held that an independent Respondent
can be held liable for acts committed with respect to em-
ployees other than his own only if that respondent pos-
sessed "sufficient control over the Section 7 rights al-
leged to have been restrained or coerced." Fabric Serv-
ices, supra. In order, for example, to impose 8(aXl) liabil-
ity for unlawful threats or promises, the respondent must
have the power to effectuate those alleged threats or
promises. Thus, in Fabric Services, the Board held that a
Respondent which had instructed an employee of an-
other employer to remove a union insignia from his uni-
form as a condition for performing services in respond-
ent's plant violated Section 8(a)(1). The Board's rationale
was the control "exerted" by the respondent, notwith-
standing that he was not the employer of the employees
involved:
[B]y virtue of its ownership of the property and its
power to evict [the employee] from its premises,
[the Respondent] was in a position of sufficient con-
trol effectively to enforce its direction to [the em-
ployee], in substance, either to remove his union
pocket protector or get off its property and cease
performing the work his employer had assigned
him. [190 NLRB at 542.]
In A. M. Steigerwald Co., supra, the Board followed
Fabric Services by applying the same "control" test to de-
termine whether a credit union could coerce or restrain
Section 7 rights of employees other than his own. The
credit union had sent a letter to the employees of an em-
ployer whose work force a union was attempting to or-
ganize stating that, if the union won the election, the em-
849
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees would not be able to obtain future loans, and
that individuals who were not presently members of the
credit union would be ineligible to join. As in Fabric
Services, by virtue of its power to deny future loans and
membership, the credit union's threat to invoke that
power violated Section 8(a)(l). In Scott Hudgens, 192
NLRB 671 (1971), the owner of a shopping center was
held in violation of Section 8(a)(1) by threatening to
have employees of another employer located within the
shopping center arrested because they were trespassing
on private property; by virtue of its ownership, the
owner had the power to carry out the threat.
The evidence in the instant case demonstrates that Re-
spondent 2M did not, directly through its representa-
tives, commit the unfair labor practices nor did it possess
the requisite "control" over the hospital or its employ-
ees, to effectuate the alleged unfair labor practices com-
mitted by the employees of the hospital. In addition,
there is no evidence that Respondent 2M had instructed
the supervisors to engage in unlawful interrogation al-
though there is much evidence that it instructed the su-
pervisors to engage in daily conversations with the staff
nurses which resulted in unlawful interrogation commit-
ted by the hospital employees. Certainly, Respondent 2M
knew what was going on as did Respondent St. Francis.
I find that Respondent St. Francis had control of the
antiunion campaign in the hospital and that it was acting
on the advice and instructions of a consultant, Respond-
ent 2M. Even if, arguendo, Respondent 2M's representa-
tives advised Respondent St. Francis' supervisors to
commit unfair labor practices, whether such advice is per
se an unfair labor practice and, as such, subjects a labor
consultant to the Act's remedial process is a question
which has not been resolved by the Board. Moreover,
there is evidence that Respondent 2M personnel did try
educating the supervisors on how to obey the law. They
were requested to "report back" the nurses' "general re-
actions" to the hospital campaign literature. There is no
evidence that the supervisors were instructed to ask the
nurses how they intended to vote (most of them wore
buttons signifying their sympathies for or against). Like-
wise, there is no evidence that they were told to mention
employee names when reporting the general reactions.
In The National Lime and Stone Company, 62 NLRB
282 (1945), the employer, whose employees were at-
tempting organization, retained the services of Labor Re-
lations Institute, a partnership engaged in the distribution
of a semimonthly publication entitled "Practical Prob-
lems in Labor Relations." It maintained a field staff
which performed various services such as wage and
salary stabilization, negotiation of contracts with unions,
installation of merit rating systems and personnel
"setups," foreman training, job evaluation and analysis,
labor surveys, and the like. National employed the Insti-
tute for the purpose of making a survey of working con-
ditions at its plant and to investigate the causes of dissat-
isfaction on the part of its employees. The Institute was
solely a management representative organization. The
Board in that case stated:
There is no contention, as such, that National is
not responsible for the conduct of the Institute or
that the Institute is not an employer within the
meaning of the Act. However, as indicated above
. . National employed the services of the Institute
shortly after the Union had filed its petition for in-
vestigation and certification of representative; Gen-
eral Manager Love authorized the Institute's repre-
sentatives, Bladek and Hardy, to go among the em-
ployees and speak to them; Love introduced Bladek
and Hardy to assembled groups of employees in Na-
tional's plant, thereby sponsoring talks of the Insti-
tute's representatives to the employees on such oc-
casion; and Hardy signed the stipulation for consent
election, mentioned above, as "agent" for National.
[62 NLRB 298, fn. 26.]
The Board concluded that, under all the circumstances,
the Institute acted in the interest of National and was
therefore an employer within the meaning of Section
2(2) of the Act, and that National was also responsible
for the acts and statements of the Institute. After finding
that both were responsible for the unfair labor practices
committed, it ordered both to cease and desist therefrom
and to post notices for the employees of National.
That case is distinguishable from the instant case in
that the Institute's representatives dealt with the rank-
and-file employees of National and committed the unfair
labor practices against those employees directly and not
through National's own supervisory employees. In addi-
tion, unlike the instant case, the Institute was alleged to
be an agent of National and was so found.
Accordingly, I find that the General Counsel has not
established by a preponderance of the evidence that Re-
spondent 2M is a co-employer or co-manager of the su-
pervisors employed by Respondent St. Francis and there-
fore liable along with Respondent St. Francis for the il-
legal conduct alleged. I shall therefore recommend dis-
missal of the allegations of the complaint against Re-
spondent 2M.
Further Discussion and Conclusions'3
As previously stated Administrator David Rose an-
nounced, at a mass meeting on October 11, and followed
up by a letter dated October 12 (14 days before the elec-
tion), that the employees would be given a raise of 10
percent effective November 4, a merit increase of up to
7-1/2 percent effective January 1, 1980, and a review of
economic conditions in July 1980.
The granting of a wage increase during the union or-
ganizing campaign and shortly before a scheduled elec-
tion as was the case here raises a strong presumption that
such increase was intended to, and in fact did, interfere
with the employees in violation of their Section 7 rights.
Rich's of Plymouth, Inc., 232 NLRB 621 (1977). A prom-
ise or grant of benefits during a critical preelection
period has been held to be illegal unless the employer
proves a valid business explanation for the timing of the
granting or promising of such benefits. In other words,
the burden was on Respondent St. Francis to prove that
it had no desire to influence the employees' freedom of
'a Briefs which were submitted by all the parties have been thorough-
yv considered along with the entire record.
850
ST. FRANCIS HOSPITAL
choice in the election campaign. Dravo Lime Company,
234 NLRB 213 (1978).
I am persuaded that the defense of business justifica-
tion offered by Respondent St. Francis is pretextual. Ad-
ministrator Rose testified that the nurse shortage affected
the whole Milwaukee area and that two units had been
shut down in August. He also testified that he was not
aware of the turnover rate for nurses at St. Francis, or
how it compared with other hospitals in the area, and
that the turnover rate was not a consideration in deter-
mining the amount of the pay raises.
Although Respondent St. Francis offered evidence
proving that it considered granting the nurses a pay raise
a month before the Union's organizational campaign, it
did not explain why a pay raise was in fact granted 2
weeks before the scheduled election. On July 3, Person-
nel Vice President Smith recommended an increase in
the starting rate for nurses but no action was taken on
the recommendation. In addition, on August 22, Smith
prepared a memorandum showing the cost of a wage in-
crease for all employees which he submitted to his supe-
riors with a request that a decision on whether to grant a
raise be made within 10 days. Again no action was taken
on that request. 4
Respondent St. Francis' supervisors apparently expect-
ed that the pay raise and promises would discourage the
nurses' union activities. As previously discussed, on Oc-
tober 15 nurse Hanson in a conversation with her super-
visor, Nancy Sykora, stated, "You have your 10 percent
wage, what else could you possibly want? Mr. Rose gave
you your 10 percent, what else do you want, what else
could you possibly want besides your money?"
I find that the implementation of the 10-percent raise
and Rose's October 12 letter violated Section 8(a)(l) of
the Act in that such actions were taken with the express
purpose of influencing the employees' freedom of choice
for unionization and was reasonably calculated to have
that effect. The problems with wages and shortages of
nurses preceded the Union's organizing campaign, but it
was the organizing campaign which caused Respondent
St. Francis to act on granting the wage increase and
making the promises when it did. Westminister Communi-
ty Hospital Inc., 221 NLRB 185 (1975).
The Interrogations, Promises, and Threats
Numerous incidents discussed above between various
supervisors and employees in support of the allegations
of interrogation, promises, and threats prove that in each
incident Respondent St. Francis interfered with the em-
ployee's rights protected by Section 7 of the Act.
As an example, in each incident in support of the alle-
gations concerning interrogation, a supervisor asked a
staff nurse why the employees wanted the Union, how
she felt about the Union, or questions concerning the em-
ployees' protected concerted activities.
In support of the allegations of promises the evidence
proves that nursing supervisors and management person-
nel repeatedly promised the staff nurses improved bene-
fits and conditions of employment in order to dissuade
them from supporting the Union. The basic theme was
" The nurses were not told of either memo
that the nurses' grievances would be resolved without a
third party (the Union) if they gave the new manage-
ment headed by Rose a chance. Supervisor Sykora's
statement to nurse Hanson on October 15 about the pay
raise was meant to show that management had already
started its campaign to improve wages and working con-
ditions.
The timing, content, and frequency of the statements
to the staff nurses following morning meetings concern-
ing the campaign with representatives of Respondent 2M
prove that they were calculated to interfere with the em-
ployees' freedom of choice. In effect, staff nurses were
being told by the supervisors that, if management fails to
give the employees everything they want within I year,
the nurses can again seek union representation. This basic
theme was repeated during the entire 2 months prior to
the election and was included in Rose's speech to the
nurses 2 days before the election. Although the promised
benefits were not always specifically enumerated, the
message was clear that management would improve con-
ditions if the nurses rejected the Union. Royal Petroleum
Corporation, 243 NLRB 508 (1979); Hubbard Regional
Hospital, 232 NLRB 858 (1977).
With respect to the alleged threats also previously dis-
cussed, the staff nurses were threatened with changes in
working conditions and loss of previously obtained bene-
fits if they selected the Union to represent them. Super-
visor Rose made the astonishing statement to the nurses,
at a time when they were operating under great stress
during the antiunion campaign conducted by Respond-
ents, that if the Union wins Respondent 2M stays and if
the Union loses Respondent 2M goes. Supervisors told
nurses that union representation would be futile and that
the nurses would lose wages and benefits if they chose
the Union. The threats contain a single message that if
the nurses chose the Union as their collective-bargaining
representative they would be made to regret it. I find
such conduct to be in violation of Section 8(a)(1). In
finding all of the discussed incidents to be in violation of
Section 8(aX)(1), I am mindful of the timing and the repet-
itiveness of this concentrated and mass effort on the part
of the supervisors which created a stressful situation
while the nurses were at work. Many of the conversa-
tions took place while the nurses were ministering to
their patients and often in emergency situations. Al-
though the remarks at times appeared casual or offhand
they followed a certain pattern and were often made
when the nurses were either too busy or not interested in
listening to their supervisors on the subject. In that con-
text, the interference with the nurses' free choice is clear.
Often they were under duress and in fear of retaliation if
they did not listen to their supervisors. In addition to
finding each incident a violation of Section 8(a)(1) of the
Act, I find, as previously stated, and in agreement with
the General Counsel, that Respondent St. Francis' cam-
paign of frequent and intensive meetings on a one-to-one
basis by the supervisors and other management persons
with the nurses was in reality a manner of interrogation
in support of paragraph C,II,2(d) of the complaint. Ac-
cordingly, I find that Respondent St. Francis' antiunion
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign independently and as a whole violated Section
8(aXI) of the Act.
A Bargaining Order Is Warranted
The General Counsel contends that the likelihood of
Respondent St. Francis' illegal conduct recurring during
the period preceding the ordered rerun election is clearly
present inasmuch as the illegal acts occurred before and
continued after the Union filed its representation petition.
I agree with the General Counsel that the possibility
of erasing the effects of Respondent's unfair labor prac-
tices and of ensuring a fair election by the use of tradi-
tional remedies is slight. Respondent's conduct involves
long-term coercive effects upon the employees' free
choice. The granting of a pay increase, numerous prom-
ises, numerous threats, and the discriminatory denial of
two nurses' attendance of a training seminar, contrary to
past practice, is conduct that the Board and the courts
have long classified as misconduct going "to the very
heart of the Act." N.LR.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (4th Cir. 1941).
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), the Supreme Court approved the Board's use of
bargaining orders as remedies in cases marked by sub-
stantial employer misconduct which has the "tendency to
undermine [the Union's] majority strength and impede
the election process." The Court held that, where the
union had at one time enjoyed majority support among
the employees, the Board, in fashioning a remedy, can
properly consider:
. . .the extensiveness of an employer's unfair labor
practices in terms of their past effect on the election
conditions and the likelihood of their recurrence in
the future. If the Board finds that the possibility of
erasing the effects of past practices and of ensuring
a fair election (or a fair rerun) by the use of tradi-
tional remedies, though present, is slight and that
employee sentiment once expressed through cards
would, on balance, be better protected by a bargain-
ing order, then such an order should issue....
[395 U.S. at 614-615.]
In the instant case a clear majority of unit employees
had signed authorization cards designating the Union as
their collective-bargaining representative. Respondent St.
Francis, as previously indicated, engaged in numerous
unfair labor practices, including promising and granting
benefits for the purpose of discouraging union activities,
threatening reprisals and denial of certain benefits,
making extensive interrogations, and maintaining illegal
no-solicitation rules. The conclusion is inescapable that
this extensive campaign of egregious unfair labor prac-
tices has had the tendency to undermine the Union's
strength and impede the election process. Faith Garment
Company, Division of Dunhall Pharmaceutical, Inc., 246
NLRB 299 (1979).
Therefore, for all the above reasons, I conclude that
the employees' sentiment, once expressed through au-
thorization cards, would, on balance, be better protected
by the issuance of a bargaining order than by traditional
remedies. C. E. Wilkinson & Sons, Inc., 255 NLRB 1367
(1981); Red Oaks Nursing Home, Inc. v. N.L.R.B., 633
F.2d 503 (7th Cir. 1980).
V. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section IV,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that Respondent St. Francis has engaged
in and is engaging in certain unfair labor practices in vio-
lation of Section 8(aXl) and (3) of the Act, I shall rec-
ommend that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies
of the Act, including the granting of a bargaining order
and posting notices.
CONCLUSIONS OF LAW
1. Respondents St. Francis Hospital and Modern Man-
agement, Inc., are employers 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. All registered nurses employed by the Employer, in-
cluding assistant head nurses, in-service instructor, utili-
zation review coordinators, discharge planner, infection
control nurse and patient teachers, but excluding office
clerical employees, technical employees, in-service coor-
dinator, head nurses, quality care coordinator, guards
and supervisors as defined in the Act, constitute an ap-
propriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. By maintaining an unlawful no-solicitation rule; by
discriminatorily enforcing such a rule; by promising and
granting its employees economic benefits for the purpose
of discouraging union activities; by threatening its em-
ployees with reduced benefits; by interrogating employ-
ees concerning their own or other employees' union
membership, activities, and desires; by threatening em-
ployees with unspecified reprisals if they did not refrain
from further union activities; by engaging in a stressful
antiunion campaign against its employees; and by deny-
ing the Union's request for equal time and access to em-
ployees, Respondent St. Francis engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
5. By denying employees compensation and fees to
attend training classes, Respondent St. Francis has en-
gaged in unfair labor practices within the meaning of
Section 8(a)3) and (1) of the Act.
6. Since September 22, 1979, the Union has represent-
ed a majority of the employees in the above-described
appropriate bargaining unit, and since that date the
Union has been the exclusive bargaining representative
of said employees within the meaning of Section 9(a) of
the Act.
852
ST. FRANCIS HOSPITAL
7. The above-described unfair labor practices are
unfair labor practices within the meaning of Section 2(6)
and (7) of the Act.
8. Respondent Modern Management is not an employ-
er or principal, or co-employer or co-manager, responsi-
ble for committing any unfair labor practices, as alleged
in the complaint.
Upon the foregoing findings of fact and the entire
record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 1 5
The Respondent, St. Francis Hospital, Milwaukee,
Wisconsin, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Announcing general wage increases, COLA in-
creases, merit wages programs, interrogation threats, and
promises of benefits to employees in violation of Section
8(aXI) of the Act.
(b) Maintaining in effect the no-solicitation Rules 52
and 56 quoted herein.
(c) Denying the Union's request for equal time and
access to employees in violation of Section 8(a)(1) of the
Act.
(d) Denying employees compensation and fees to
attend training classes in violation of Section 8(aX3 ) and
(1) of the Act.
I" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively in
good faith concerning rates of pay, wages, hours, and
other terms and conditions of employment with the
Union as exclusive bargaining representative of the em-
ployees in the appropriate bargaining unit described
above and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Accord the Union the opportunity to have group
meetings with employees on the premises of the Employ-
er during worktime comparable to those held by the Em-
ployer.
(c) Post at its premises in Milwaukee, Wisconsin,
copies of the attached notice marked "Appendix."1 6
Copies of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by an au-
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
St. Francis to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act by Re-
spondent Modern Management, Inc.
'6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
853