St. Joseph's Hospital,

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 869 (N.L.R.B. 1980)

ST. JOSEPH'S HOSPITAL
St. Joseph's Hospital of the Franciscan Sisters of
Milwaukee, Inc. and Local 150, Service and Hospi-
tal Employees International Union, AFL-CIO and
Patricia A. Nichols. Cases 30-CA-4796 and 30-
CA-4796-2
February 5, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On September 28, 1979, Administrative Law Judge
Russell M. King, Jr., issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, St. Joseph's Hospital of
the Franciscan Sisters of Milwaukee, Inc., Milwaukee,
Wisconsin, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order, except that the attached notice will be substi-
tuted for that of the Administrative Law Judge.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Product. Inc.. 91 NLRB 544
(1950), enfd. 18S F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportuni-
ty to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, as amended, and has
ordered us to post this notice. We intend to carry out
the Order of the Board.
WE WILL NOT administer a survey of employee
attitudes concerning working conditions for the
purpose of ascertaining employees' sympathies
for Local 150, Service and Hospital Employees
International Union, AFL-CIO, nor will we
selectively administer such a survey to any group
or groups of employees who are felt to support
that labor organization.
WE WILL NOT meet with employees individu-
ally, collectively, or in small groups for the
purpose of disparaging or undermining the above-
named labor organization.
WE WILL NOT solicit grievances or complaints
from employees concerning working conditions,
nor will we attempt to undermine the above-
named labor organization by promising to adjust
those grievances without first bargaining about
them with that labor organization.
WE WILL NOT discriminatorily deny the re-
quest of employees to modify their hours or to
convert their employment from a full-time to a
part-time basis, nor will we constructively dis-
charge employees by discriminatorily denying
such requests, because of their activities on behalf
of the above-named labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them in
Section 7 of the Act.
WE WILL offer Patricia A. Nichols reinstate-
ment to her former position of employment on a
part-time basis without prejudice to her seniority
or other rights and privileges previously enjoyed
and WE WILL make Nichols whole for any loss of
pay she may have suffered as a result of our
discrimination against her, with interest.
WE WILL bargain collectively with the above-
named labor organization as the exclusive bar-
gaining representative of all employees in the
bargaining unit with respect to wages, hours, and
other terms and conditions of employment. The
bargaining unit is:
247 NLRB No. 135
869
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All regular full-time and regular part-time
employees of St. Joseph's Hospital, Milwaukee,
Wisconsin working twenty hours or more per
week as orderlies, housekeeping aides, utility
workers, laundry, kitchen, lab aides, central
supply aides, surgery aides, aides and cafeteria
workers, excluding all other employees, super-
visors, office and professional employees, and
affiliates of religious order, R.N.'s, students,
craft and technical employees.
ST. JOSEPH'S HOSPITAL OF THE
FRANCISCAN SISTERS OF MILWAUKEE, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge: The
consolidated cases were heard before me in Milwaukee,
Wisconsin on February 12 and 13, 1979. The charge in Case
30-CA-4796 was filed by Local 150, Service and Hospital
Employees International Union, AFL-CIO (herein called
the Union or Local 150) on July 24, 1978,' and the charge in
Case 30-CA-4796-2 was fined by an Individual, Patricia A.
Nichols, on August 16. In both cases the complaints were
issued on September 21 by the Regional Director of Region
30, National Labor Relations Board on behalf of the Board's
General Counsel. The complaints allege a series of unfair
labor practices between June 9 and July 12 by St. Joseph's
Hospital of the Franciscan Sisters of Milwaukee, Inc. herein
called Respondent in violation of section 8(a)(1), (3) and (5)
of the National Labor Relations Act (herein called the Act),
including the improper administering of an employee atti-
tude survey resulting in the direct solicitation of grievances,
interrogation of employees regarding their union sympathies
and prohibiting employees from wearing union insignia, and
the discriminatory treatment of two employees resulting in a
I-day suspension for one such employee and the constructive
All dates hereafter are in 1978, unless otherwise stated.
The pertinent parts of the Act provide as follows:
Sec. 7. Employees shall have the right to self-organization. to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protect ion ...
Sec. 8. (a) It shall be an unfair labor practice for an employer-
( 1) to interfere with, restrain. or coerce employees in the exercise of
the rights guaranteed in section 7:
* . * * *
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization ...
(5) to refuse to bargain collectively with the representatives of his
employees ....
Although such union activity is frequently associated with initial union
campaigns to obtain recognition as the bargaining agent for employees, the
Union in this case remained the employees' representative notwithstanding
the lack of a contract. This fact is alleged in one of the complaints (Case 30-
CA-4796) and admitted in Respondent's answer. On June 23 Respondent did
discharge of the other employee.' The Union has represented
a unit of Respondent's nonprofessional and service employ-
ees (excluding maintenance department employees) since
1964, and the last collective-bargaining agreement between
the Union and Respondent prior to the issuance of the
complaints was a -year contract which expired December
20, 1976. Subsequently, and for about 14 months, no
contract negotiations were held. From mid-March to mid-
May 1978 four negotiating sessions were held, and in late
May the parties reached an impasse and there was some
resurgence of interest in the Union among some employees
in Respondent's central service department. Renewed activi-
ty included the distribution of union authorization cards and
union literature by certain employees, including the two
employees who are the subjects of the alleged discriminatory
conduct charged in this case.' On September 5 bargaining
between the parties went to Federal mediation, and ultimate-
ly on December 27 a new 2-year contract was entered into.
Upon the entire record, including my observation of the
demeanor of the witnesses,4 and after due consideration of
the briefs filed herein by the General Counsel and Respon-
dent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The pleadings and admissions herein established the
following jurisdictional facts. Respondent is, and has been at
all times material herein, a nonprofit Wisconsin corporation
engaged in the operation of a nonprofit hospital (herein
called the Hospital or Respondent) in Milwaukee, Wiscon-
sin. During the calendar year 1977, a representative period,
in the course and conduct of its business Respondent
realized gross revenues in excess of $250,000, and during the
same period Respondent purchased and received goods and
services valued in excess of $50,000 directly from points
located outside the State of Wisconsin. As admitted, it is
thus found that Respondent is and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. As
file an RM (representative) petition with the Board (Case 30-RM-388). On
August 3 the Regional Director dismissed the petition and that dismissal was
affirmed by the Board on September 12. In a memorandum to its employees
on June 28 Respondent inaccurately referred to this petition as a "decertifica-
tion petition." Also in that memorandum Respondent questioned the "right"
of the Union to represent the employees and indicated the desires of
Respondent for a Board-conducted election. Thus, and throughout this
Decision, Respondent's RM petition will frequently be referred to as the
"decertification" petition. In an accompanying statement to the actual
petition itself, Respondent does request an election to ascertain whether or not
Local 150 "has lost its representative status" citing, among other reasons,
Respondent's knowledge that the Union "is currently soliciting support
among the employees . . . including what amounts to a new organizational
drive to generate employee interest in Local 150."
' The facts found herein are based on the record as a whole and upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N.LR.B. v. Walton Manufacturing Company d Loganville Pants
Co. 369 U.S. 404. 408 (1962). As to those testifying in contradiction to the
findings herein, their testimony has been discredited either as having been in
conflict with the testimony of credible witnesses or because it was in and of
itself incredible and unworthy of belief All testimony has been reviewed and
weighed in light of the entire record.
870
ST. JOSEPH'S HOSPITAL
further alleged and admitted herein, it is also found that the
Union is, and has been at all times material to this case, a
labor organization within the meaning of Section 2(5) of the
Act.
II. AI.l.EGED UNFAIR ABOR PRACTICES
A. Summary of the Evidence'
Employee Grace Leal worked for Respondent from May
1974 to November 1978 as a central service attendant. She
worked in the central service department where she steri-
lized and repackaged surgical supplies. During the period in
question the central service supervisor was Lois Surges. Leal
worked on the p.m. shift, from 2:30 until I I p.m. The central
service department was located on the ground floor of the
Hospital, together with the outpatient physical therapy
department and the Hospital's laboratory. About once a
week Leal would be called upon to go up to the various
patient floors and pick up soiled equipment from utility
rooms, which were located opposite nursing stations. Al-
though Leal joined the Union in July 1974, she did not
become active until June 1978, when she then commenced to
pass out union authorization cards in the cafeteria and
outside the hospital building. She also, on occasion, passed
out union literature during her lunch hour and after work.
On June 6 employee Leal passed out union literature in
the cafeteria at or about 5:15 p.m. Later that evening, at
approximately 8:30 she was approached by Delores Sarnow-
ski, a shift supervisor on another shift. Present also were
several other employees and her own shift supervisor
Laverne Steinbrenner. According to Leal, Sarnowski asked
her if she knew the seriousness of what she had done earlier
in the cafeteria, in passing out union literature, also referring
to rule 20, which she indicated prevented solicitation in the
hospital. Sarnowski also added that she was not allowed to
pass out literature outside the Hospital. The following day
(June 7) when Leal arrived at work, she was told by Central
Service Department Supervisor Surges that the Hospital's
personnel director, Dennis Frost had learned of Sarnowski's
remarks and that he had informed Sarnowski that she was
wrong in reprimanding Leal, informing Sarnowski that such
conduct was permitted. Surges then indicated to Leal that
the whole matter had been straightened out. Subsequently,
Leal indicated that she wanted to insure that her record
' The following includes a summary of the testimony of the witnesses
appearing in the case. The testimony will appear normally in narrative form,
although on occasion some testimony will appear as actual quotes from the
transcript. The narrative only and merely represents a summary of what the
witnesses themselves stated or related and does not necessarily reflect my
ultimate findings and conclusions in this case.
The incident was not the subject ofan allegation in the complaint.
A copy of this survey was admitted into evidence and is entitled
"Organization and Job Attitude Inventory." The survey was 4 pages long and
contained 20 specific questions, with ample room to make further and general
suggestions. Room was also furnished below each specific question for
additional comments. and the 20 specific items were followed by the words
"agree" and "disagree." The 20 items or comments were as follows: (I) "Our
health insurance program provides good coverage," (2) "The sick leave policy
at St Joseph's is fair." (3) "Parking facilities provided for employees are safe
and adequate," (4) "My supervisor enforces personnel policies fairly," (5)
"The hospital administration is interested in fair treatment of employees." (6)
"The people in my department work together as a team," (7) "My supervisor
wants my advice about ways to improve the department." (8) "I have
remained clean and thus went to Personnel Director Frost's
office, whereupon Frost reconfirmed that Sarnowski indeed
had been wrong, indicating to Leal that she should ignore
the incident and not worry about any consequences.'
Leal testified that upon arriving at work on June 14
Central Service Supervisor Surges asked all of the p.m. shift
employees to meet in the nursing service area of the
department. Leal and four other employees then reported to
the service area, and, according to Leal, Surges then told
them to go to a lounge area in another part of the Hospital
and meet with Personnel Department Assistant Michael
Elliott. In the lounge area they were met by Elliott, and
thereafter they were administered an "attitude survey," but
were also told that they did not have to place their names on
the survey, which was collected upon completion.' Personnel
Assistant Elliott indicated that the survey was being given
because Hospital Administrator Sister Jean was often too
busy and thus frequently failed to pay proper attention to the
feelings of employees.
Leal testified that on July 5 employees received a memo
from Hospital Administrator Sister Jean informing them
that the Hospital had petitioned the Board to "decertify" the
Union and that employees would be kept informed of the
progress of the matter.! Later that day, Leal talked to
Personnel Director Frost by telephone about the memo, and,
according to Leal, Frost explained that the Hospital had
evidence that the Union was not reputable, and that the
Hospital had spent a great amount of money in benefits
without any effort on the part of the Union. Frost further
indicated that such benefits included a p.m. shift raise, a
revised pension plan, and a general wage increase, and Frost
added that the Union was not needed when such benefits are
given and granted without the Union's help.
Leal testified that on July 10 she was asked to report to
Central Service Superintendent Surges' office, whereupon
she was told that Frost had indicated she could not wear her
union armband because of advice from the Hospital's
attorney that it violated the Hospital's uniform policy.9 Leal
then asked to speak to Frost herself about the armband,
whereupon Surges telephoned Frost, who apparently verified
his position to Surges, indicating that he would see Leal the
following day. Leal testified that she then suggested to
Surges that the request was "harassment," indicating that
she would "go home rather than to take it off today," to
which Surges replied, "Well, then go home." Leal then
opportunities to learn more about my job through in-service education
programs," (9) "1 receive fair pay for my work," (10) "Hospital administra-
tion is interested in me as an individual," (11) "I have an opportunity to
progress in my job," (12) "My supervisor is fair in dealing with me," (13)
"The job I do uses my training and skills to a good extent," (14) "The people
in my department work well with other departments," (5) "The work load in
my department is fair and evenly distributed." (16) "The people in my
department are interested in their jobs and what they are doing," (17) "My
department is a pleasant place in which to work," (18) "My supervisor is easy
to talk with and listens to my grievances," (19)1 am proud to be a member of
this department," and (20) "St Joseph's Hospital is a good place to work."
'This memorandum was admitted into evidence and is dated June 28.
Leal had apparently worn this union armband on one previous occasion.
The armband itself was admitted into evidence. and from end to end it is
approximately 20 inches. Its color is fire-engine red, and the center portion of
the armband measures approximately 7 by 4-1/4 inches. In that center portion
is a round circle of while felt measuring approximately 3-1/4 inches in
diameter. inscribed with black felt-tip pen "Local 150 SEIU."
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
punched out and left for home. She was not paid for July 10.
The following day (July I11) Leal reported to work and soon
thereafter spoke with Personnel Director Frost in his office.
According to Leal, Frost again indicated that the armband
violated the Hospital's uniform policy for central service
employees, consisting of a pink uniform with a name tag and
white shoes. Leal further related that Frost cited three Board
cases, pointing out that one upheld a hospital in restricting
employees from coming to the hospital off duty and passing
out union literature, one further upheld a hospital in
restricting employees from passing out union literature in
the cafeteria, and the last case upheld a hospital in
restricting employees from wearing "obtrusive" union insig-
nia. Leal then reminded Frost about the Hospital's earlier
actions in allowing the wearing of "Thanks For Not
Smoking" buttons, to which Frost replied that he felt that
the armband was obtrusive, but indicating she could wear
"two union buttons."' According to Leal, Frost also asked
her if she were "working with" the Union, to which she (in
her own testimonial words) "belligerently told him that was
none of his business."
Lila Buffey testified as a present central service asisstant
and had been employed in that capacity at the Hospital for 3
years. She also worked on the second shift under Supervisor
Surges. She had been a union member since June. Buffey
took the June 14 survey, along with three other employees.
Before commencing with the survey Personnel Assistant
Elliott informed them that the entire Hospital would
eventually take the survey, although they were starting out
in the central service department. According to Buffey,
Elliott informed them that the survey was "to see how we
felt about things at the hospital ... how we felt about wages
and insurance, security, supervisors, and things like that."
About a week later, Buffey attended an employee meeting
called by Surges and attended by the second-shift employees.
The purpose for this meeting was to discuss the results of the
survey, and Surges stated that "she got feedback from the
surveys and she ... thought we were restless and wanted to
know if we would like any changes in Central Services."
According to Buffey, Surges added that she wanted to see
what could be done about getting better wages and uniforms,
further adding that she would attempt to get more informa-
tion regarding employee insurance and parking facilities.
Buffey conceded that no specific promises were made by
Surges and that this meeting was similar to regular "unit"
meeting which were held approximately once a month.
Buffey went on to testify that on June 28 Surges gave her a
copy of the Hospital's memorandum about the "decertifica-
tion" petition, and at that time Surges added that she did not
think the Union was a good union, referring to the fact that
there had been no contract for 2 years. Buffey also attended
a July 12 meeting where the "proposed" topic was that of
"isolation," a subject which was not actually discussed at the
meeting. Personnel Director Frost and Supervisor Surges
"' The "Thanks For Not Smoking" buttons had been I inch in diameter.
Leal later testified that commencing on this day, July I1, she did wear a union
button. As indicated earlier, the armband was apparently worn only dunng
the brief period that she was at work on July 10 and once before.
" The complaint in this case alleges that Respondent discriminated against
and constructively discharged Nichols, who at the time was a central service
"assistant." There is some evidence in the record that the higher position is
that of an "attendant." However, there is no evidence of any salary differential
were present at this meeting, and, according to Buffey, Frost
talked about why the Hospital could not obtain dental
insurance for the employees. After this, Frost then stated
that the central service employees took the survey first
because of renewed union activity in the department,
relating that "he knew that it started out in central service,"
further adding that he had knowledge of the union literature
which was being passed out in the cafeteria. Frost also added
that he did not think the Union was a good union, because
he had a letter from a certain Lottie Jeffers about returning
union dues, further indicating his opinion that the Union did
not have present support at the Hospital. Buffey's job as a
central service assistant included the collecting of soiled
instruments, which she indicated she collected from all of
the Hospital's 22 units "about twice a week." She also
related that, approximately a week after employee Patricia
Nichols quit, she saw a notice on the cafeteria bulletin board
regarding part-time hours being available for a central
service attendent."
Paula Jean Vandervoort worked as a unit clerk in the
central service department on the second shift. She had been
employed by Respondent for some 4 years. She took the
June 14 survey at the request of Surges, and was told by
Personnel Assistant Elliott that Hospital Administrator
Sister Jean wanted to know the feelings and attitudes of the
employees. Vandervoort also testified that on June 28
Supervisor Surges called her and employee Jeorgia Just in
her office and spoke about the results of the survey. Surges
indicated that she would look into a change in the uniforms,
but also indicated that dental insurance was not available
and that Personnel Director Frost would speak to them at a
later date as to why it was not available. Also at this June 28
meeting, Vandervoort received a copy of the Hospital's
"decertification" memo from Surges, who stated that there
would be a "decertification election . . . to find out once
and for all whether [the Union] is doing anymore for the
employees . . . than the Hospital itself." According to
Vandervoort, Surges added that "people were spending their
money every month for a Union that the Hospital is doing
the same for the employees as the Union would do."
Vandervoort also attended the July 12 meeting of the entire
central service staff, where Personnel Director Frost was to
speak on the subject of "isolation."' There were a total of
between 22 and 24 employees present at this meeting, at
Vandervoort's count, and when Frost appeared, he started
by talking about the present benefits available at the
Hospital, and the Hospital's contribution to the hospitaliza-
tion plan. He then stated that no dental insurance would be
available because of its additional expense, which would
result in raising the patient bed price. According to
Vandervoort, Frost then mentioned the "decertification
election," indicating that it was to be held the following
week to determine whether or not the employees really
wanted the Union. Vandervoort further testified that Frost
or that one could not perform the job of the other. Buffey also testified that
she knew two "assistants" who had been elevated to "attendants." but
conceded that she did not notice other particulars on the notice in the
cafeteria, including the hours or days required.
" According to Vandervoort, the term "Isolation," as used here, referred a
technique used for cleaning materials coming from patients which were
maintained in isolation on patient wards.
872
ST. JOSEPH'S HOSPITAL
indicated he was not antiunion and stated that, if the Union
were decertified, the hospital administration would help find
a better union if that was what the employees wanted.
Employee Buffey asked Frost at this July 12 meeting why
the rest of the hospital staff was not administered the survey,
to which Frost replied that they no longer felt it was
necessary, because most of the "discontent" was coming
from the central service department.
Patricia Nichols worked for Respondent as a central
service department assistant from February until June 23.
She worked under supervisor Surges on the second, or p.m.,
shift. She became a union member in early June, and on
three occasions thereafter she distributed union literature in
the cafeteria. During her employment Nichols enrolled as a
student at nearby Concordia College, and she testified that
in early or mid-May she informed Supervisor Surges or her
enrollment, explaining that she had not yet received her
schedule, but that her courses included anatomy and
psychology. According to Nichols, Surges replied merely, "I
think you will enjoy it."
Nichols testified that in late May she received her
schedule, and on June 6 she went to Surges to ask if she
could work part-time hours consisting of approximately 5
hours per week less than what she was working as a full-time
employee. At this time Nichols was wearing a union button,
and she related that Surges commented that she had not
"seen any of those in a long time." Surges then advised her
that there were no part-time openings in the department and
further requested that she give 2 weeks' notice. Nichols
testified that she was "startled" by this response and replied,
"I'll give you three weeks notice." Surges then obtained a
personnel action form from her desk, filled it out, and gave it
to Nichols to sign, indicating that the form would be sent to
the Hospital's personnel section. Nichols then signed the
form, after which, she related, Surges commented that she
was a "good employee," that she got along well with other
people, and that she knew the mechanics of her job. '
Nichols testified that she was aware of a part-time opening
in the central service department that had existed when she
came to work and had never been filled. For this reason,
later on in June she approached one Darryle Drager in the
personnel office, who confirmed that there was in fact a part-
time opening, adding that he was not sure whether it was
going to be filled, depending upon budget and work load.
Nichols related that her schedule of classes during the week
was from 8:30 a.m. to 12:45 p.m. on Mondays and
Wednesdays and from 8:30 a.m. to 2:15 p.m. on Tuesday,
Thursday, and Fridays." She indicated that she would have
been able to work, according to her own personal schedule
and needs, between approximately 3 and 10 p.m. on
weekdays after she commenced her schooling. When asked
in cross-examination about her decision and not to attempt
full-time hours when starting her classes, the record reflects
the following dialogue:
' This form was admitted into evidence and is dated June 6. Under the
"explanation" portion of the "termination" section of the form appears the
writing: "[Wlill be attending school starting 6/12/78--On intensive medical
assistant program at Concordia College." Under "last day worked" is inserted
the date "6/23/78." The "yes" box under "should we rehire" is checked, and
under "reason code" the number "10" appears. The back page of the form
reflects that code 10 means "personal reasons." Also under the "termination"
section the following preprinted language appears: "I acknowledge my
Q. Is it correct then that you made the determination
not to attempt work full time and continue or do the
program at Concordia College on that day, [June 6]?
A. That was difficult to say. I didn't know for sure. I
wouldn't have asked her for part time if I didn't feel
that I needed two hours to three or four hours less a
week to work. Although I would have tried, you know.
I had it in my mind I would have tried full time but
that's an awful rough schedule because I have done it
before.
Q. Why didn't you try it?
A. Because the-I just felt that if other employees
could have been accomodated [sic] working fewer hours
a week there was no reason-I don't see any reason why
I couldn't be accomodated [sic] the same thing. I was
just asking not for a cut of ten or twenty hours a week,
but only five maybe.
Nichols testified that she later learned of "educational
leave," and on the last day of her employment (June 23) she
went to Personnel Assistant Elliott, who explained the
paperwork and procedure necessary to apply for educational
leave. Nichols related, however, that she did not apply for
such educational leave, because it was her last day, and the
application had to be in before she "terminated" her
employment. She also related that, when she went back to
the central service department, Supervisor Surges had left
for the day. She further testified that she had knowledge of
three other employees who had been shifted from full to part
time and of an additional employee who had received a
reduction in hours to from 3:30 to 10 p.m.
Michael Conway testified as a present employee of
Respondent as a cleaning aide in the respiratory therapy
department. Prior to this position he had been a central
service attendant from the inception of his employment at
the Hospital in September 1977. Sometime in 1978, appar-
ently in May, Conway indicated, he received a union card
from employee Grace Leal and thereafter became a member
of the Union. He also on occasion would wear a union
button at the Hospital. Conway also mentioned an addition-
al button which he wore in 1979. This button was apparently
a "100 Anniversary" button furnished by the Hospital. It
was blue and approximately 2 inches in diameter.
In March of 1978 Conway made the decision to return to
school and told Supervisor Surges of this decision, indicating
that he wanted to work part time thereafter if possible.
Conway was to start school in late August, but had not yet
received his schedule. Surges, upon learning from Conway of
his desires in March, told Conway to let her know about his
schedule as soon as it was received. In July Conway received
his schedule and thereafter approached Surges, who thereaf-
ter agreed to allow him to work 2 days per week (8 hours
each day). Before school, Conway was working the morning
shift (7:30 a.m.-4 p.m.), and, when he changed to part-time
hours, he worked on the p.m., or afternoon, shift. He would
employment termination status as stated herein is true. or as follows:-explain
below." Nichols was asked during her testimony whether she had a chance to
read the form before she signed it, to which she replied that she "looked it
over . . . it was just like a standard form that had to be filled in." She also
related that as Surges was filling in the form, she was explaining the
information that she was writing down.
" Her work schedule as a p.m. shift employee was from 2:30 to I I p.m.
873
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
usually start at the regular time at 2:30 p.m., but he
indicated that approximately once every 2 weeks he was
permitted to arrive at approximately 3:30 p.m. to complete a
test in school.'
Dale Hoffman testified as a central service attendant at
the Hospital. He had held this position for some 4 years with
the exception of the period January-June 1977. He joined
the Union after he received a card from employee Grace
Leal in approximately June 1978. In January 1977 Hoffman
quit his employment to go back to school. He reapplied in
June 1977, knowing at that time that a part-time employee
who was an attendant was leaving in September of 1977.
When he applied Supervisor Surges agreed to hire him back
full time for the summer and then to place him on part-time
hours when the other part-time employees left in September.
This arrangement was in fact was accomplished in Septem-
ber, and Hoffman at that time reverted to the p.m. (2:30-
11:30 p.m.) shift and worked 2 or 3 days per week. Hoffman
indicated that he was not required to sign any additional
form for transfer to part-time hours other than the initial
personnel form which he signed upon returning to work in
June 1977.'" Hoffman also testified that on the second shift
in the central service department there was one full-time
attendant and two part-time attendants. He indicated that at
th time of his testimony one of the part-time attendants had
b, ii there since he commenced his employment and that the
other attendant had reverted to part-time hours in January
1978.
Peter Johnson testified as the Hospital's vice president in
charge of "human relations." In this position, Johnson
explained, he participated actively in the general manage-
ment of the Hospital, and six or seven departments reported
directly to him, including the personnel department. He was
also in charge of labor relations for the Hospital. In
generally describing the Hospital, Johnson testified that it
contained 571 adult beds and 112 bassinets and that it was
one of the largest in the region and the second largest private
hospital in the Milwaukee area.
Johnson initiated the June 14 "attitude survey." He
testified that the survey was first discussed in December
1977, when the Hospital's goals for the 1978-79 fiscal year
(beginning July I) were being planned by the Hospital's
management. At this time the survey was referred to as an
"institutional climate study" and was to be completed by
December 1978. When the 1978-79 goals were completed
and placed in written form in May, they reflected the
December completion date and included data on desired
employee benefits. Johnson testified that the survey was first
conducted in the central service department because "there
was employee unrest . . . within the department, particular-
ly on the second shift." Johnson indicated that many of the
questions on the survey were directed to or concerned the
"calibre of supervision that was in the department" as a
" When Conway transferred to part-time hours Supervisor Surges also
requested that he execute a personnel form. This form was admitted into
evidence. and in the "explanation" section, the following information is
recorded: "Effective 8/20/78-full-time to part-time until position is filled &
orientation complete-termination or transfer will occur."
" Employee Michael Conway also testified that no additional personnel
form was required for his reversion to part-time hours in August 1978.
"In cross-examination Johnson was shown copies of some 33 unsigned
notes from an employee suggestion box. most of which notes were in support
possible cause for this unrest, adding that the survey was in
great measure tailored to obtain information regarding
supervisors." Johnson related that the attitude survey was
not given to any other employees in 1978 because he wanted
"to make refinements in the instrument and perhaps
broaden the scope of it to include other aspects of the total
Hospital operation." Additionally, in mid-September the
Hospital received notice that it would be surveyed in late
October by the "joint commission on accreditation," and,
according to Johnson, the Hospital thereafter became
involved in preparing for that survey." Johnson also testified
as to the reason for discussing responses to the survey with
employees in late June, explaining that he felt it "important
. . . that those who participated . . . get feedback as to
what . . . the findings of the survey were . . . for informa-
tional purposes." Johnson maintained that no changes took
place in the Hospital's labor policies as a result of the survey,
nor did the results affect negotiations with the Union.
In testimony regarding the Hospital's filing of the "decer-
tification" petition, Johnson indicated that the Hospital's
purpose was follows:
To secure classification of the bargaining units within
the Hospital . . . [the Hospital] had a doubt as to
whether [the Union] . . . included a majority [of] the
persons who would be within the bargaining unit as
actual members of [the Union] . .. [and to] clarify
whether it was necessary to maintain three separate
unions within the Hospital . . . and perhaps there
might be a possibility of consolidation.
According to Johnson, the purpose of the hospital adminis-
trator's memorandum of June 28 was to inform all employ-
ees as to the Hospital's intentions and reasons in and for
filing the "decertification" petition.
Michael Elliott was employed by the Hospital from
October 1977 to October 1978 as the employment manager.
He administered the survey on June 14 and testified that the
purposes of the survey were to find out how employees
"perceived" their supervisors and to further ascertain how
employees felt about certain recent changes in benefits.
Elliott explained that the survey was originally scheduled for
the second half of fiscal year 1978-79, but that the hospital
administrator wanted it "moved up," feeling a "more
pressing need for it."
Dennis Frost testified as Respondent's current personnel
director. He has been employed by Respondent for some 13
years and, in his current position, he is involved in labor
relations on behalf of the Hospital, and he is a member of its
negotiating committee. Frost explained that the Union
(Local 150) has represented a unit of the Hospital's service
employees since 1964. Prior to the most recent contract, the
last contract had expired December 20, 1976, after which no
negotiations were held for approximately I year. According
to Frost, in December 1977 the Union contacted Respon-
of a union and many of which questioned the Hospital's reason for filing the
"decertification" petition. Johnson's "interpretation" o many of these notes
led him, he maintained, to he concerned about the caliber of supervisionl
However, Johnson readily admitted or conceded that he was aware of the
renewed union support commencing in late May
"The charges in this case were filed on July 24 and August 16 Johnson
denied that the subject matter of these charges or the fact of their iling
influenced the Hospital not to continue with the survey in other departments
874
ST. JOSEPH'S HOSPITAL
dent, and thereafter the first negotiating session occurred on
March 17. The second and third negotiating sessions
occurred on March 30 and May 11, respectively, when an
impasse was reached and the services of a Federal mediator
were obtained. On September 5 the parties met with the
Federal mediator, and thereafter an agreement resulted, and
a contract was entered into on December 27.'9
Regarding the survey administered on June 14, Frost
testified that the last survey was performed in 1969 and was
similar in nature to the recent June survey. Frost indicated
that it was conducted only in the central service department
"primarily" because of the impending joint accreditation
commission survey scheduled for October. "' He added that
the survey itself also needed some "refinement" to give it a
more hospitalwide application. According to Frost, the
survey was accelerated and given to the central service
department because of a "combination questionnaire and
statement" of June 5 from employees criticizing Supervisor
Surges. As a result of this questionnaire and statement the
Hospital concluded that there was "unrest" in the central
service department, and the June 14 survey was an attempt
to learn the reasons for that unrest. After the survey, on July
12, Frost attended an employee group meeting at the request
or invitation of Supervisor Surges, who asked him to talk to
the employees regarding the results of the material contained
in the survey. According to Frost, he spoke to the employees
at this group meeting, using notes he had made after
examining the surveys themselves. One topic was "health
insurance," which had been improved earlier, but which the
survey reflected many employees did not realize these
improvements. Another item Frost included in his discus-
sions was dental insurance coverage, and he explained that
the Hospital could not afford such coverage at that time for
economic reasons. Frost testified that several questions were
asked of him at this group meeting, including one question
regarding employee Leal's armband, which he explained was
against uniform regulations. Frost also indicated that anoth-
er question was on the subject of why the Hospital
"harasses" employees because of their union activities, to
which Frost replied that, if such were the case, it was wrong,
asking for the name or names of the individuals responsible.
No one came forth with any names. Frost denied that he
knew that the group meeting of July 12 was to originally be
on the topic of "isolation."
Frost testified that on July 5 he received a telephone call
from employee Grace Leal requesting a copy of the
Hospital's memorandum relative to the "decertification"
petition. Leal asked why the petition had been filed, and
Frost responded by informing Leal that the Hospital "had a
good-faith doubt that Local 150 didn't truly represent the
employees." Frost then indicated that Leal disagreed with
him and commented about the "weird people" the Hospital
had as supervisors, adding that she thought the Hospital was
"Respondent's "decerification" petition was filed June 23.
" The Hospital's vice president, Peter Johnson, testified that the Hospital
was notified of the accreditation commission survey in mid-September
:' The work record of employee Nichols was admitted into evidence in the
case. This record is somewhat confusing in that some of the entries are
difficult to understand. However, it does reflect a number of absences
(approximately four), several "part-shifts" (approximately four), and tardi-
ness on at least two other occasions. In summary. this record reflects that
Nichols was absent because of illness or other reasons approximately eight
times, was late to work approximately three times, and went home early
approximately three times
antiunion. Frost replied merely that she was entitled to her
own views, denying that he made any adverse comments
about the Union. He conceded that he did mention that a
union steward had returned dues, adding that the Hospital
had increased benefits without any urging from the Union.
Otherwise, he denied any further interrogation of Leal
during this conversation. Regarding employee Leal's arm-
band incident, Frost testified that on July I or 12 Leal came
to his office and questioned the Hospital's authority to
prevent her from wearing the armband. Frost indicated that
he then told Leal that the uniform regulations prevented the
wearing of such an armband and that "case law" supported
the Hospital's position. Frost denied questioning Leal at this
time regarding any of her union activities. Regarding
employee Nichols and her request for part-time hours, Frost
testified that, during her employment between February 20
and June 23, Nichols had an excessive absentee or tardiness
record.'" According to Frost, this work record contributed to
the denial of her request for part-time hours. Frost explained
that he had talked to Supervisor Surges about her request,
and Surges conveyed to him her opinion that Nichols' work
record would become "aggravated" if she were granted part-
time hours for schooling, especially in light of family
responsibilities."
Central Service Department Supervisor Lois Surges has
been employed by Respondent since 1951 and has been a
supervisor since 1965. The primary job of her department is
the cleaning and assembling of instruments and other
equipments into sets and trays for the surgery department
and other departments of the Hospital. Regarding employee
Nichols, Surges explained that she hired Nichols in Febru-
ary 1978 as a central service department assistant. During
the 4-month period that Nichols worked under her, Surges
testified that she was absent from work eight times: four
times because of illness and four times for other reasons.
Surges further indicated that she was late or tardy on two
occasions and that she reported two times at 7 p.m., working
only a half shift. She also left the hospital at 7 p.m. on one
occasion because of illness. Surges characterized this record
as poor and excessive and indicated that the normal number
of absences and incidents of tardiness of most employees
totaled no more than six or seven in a I-year period.
According to Surges, a rule in the employee handbook
required a verbal admonition after an employee had been
absent two times within a 4-week period. Surges testified
that she gave Nichols such an admonition on two occasions,
on April 19 and on June 52
Surges testified that she first learned of Nichols' intentions
to enter school on June 5, when Nichols came to her and
explained that she had been accepted into the "medical
assistant program" at Concordia College.' Surges further
related that Nichols then requested permission to work "a
short shift of five to eleven Monday through Friday" after
2 Nichols' termination notice, as described earlier, indicated that the
hospital would rehire her on a full-time basis. Frost could not account for this
remark, which was apparently inserted in the notice by supervisor Surges
' Surges reduced these admonitions to written memorandums. apparently
not signed or shown to Nichols. and both of these memorandums were
admitted into evidence.
:' Surges' testimony regarding the date of June 5 was somewhat confusing.
She first testified that the date was. in fact, June 6, the actual date of the
personnel information form or termination notice. However. she later altered
(Continued)
875
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her classes started. According to Surges, Nichols further
indicated that her classes were from 8 a.m. to 2 p.m., and
thereafter she would need to go home "to take care of her
family" until 5 p.m.-' Surges indicated that she then
informed Nichols there was no short-shift position available
as a central service assistant and that none was provided for
on the "master staffing plan," further pointing out to
Nichols that her absenteeism record was not good. Surges
further testified that she then asked Nichols to give her 2
weeks' notice and that Nichols responded by indicating that
she would give her 3 weeks' notice, setting the date of her
own departure as June 23.
' According to Surges, between
this conversation on June 5 and the following day, she
drafted the termination notice (personnel information form)
which was dated June 6, and thereafter (on June 6) Nichols
signed the form.' Surges summarized her reasons for
refusing to grant Nichols' request for a "short shift" by
testifying that there was no position, that Nichols had an
excessive absenteeism record, and that she had a heavy class
schedule, all of which, in her opinion, would cause her
absenteeism record to worsen during the upcoming school
attendance. Surges acknowledged that she checked the
"should rehire" box on the termination notice because, in
spite of her absenteeism, Nichols was a "good worker" and
that she would consider reemploying Nichols. Surges denied
that any remarks were made about the Union, and she
further denied that she had any knowledge of Nichols' union
support or activities and had never seen her wearing a union
button.'
Surges testified about five other employees who had been
mentioned in earlier testimony as receiving part-time hours.
She conceded that employee Grace Leal, as a central service
assistant, did leave full time in 1977, from 80 hours per 2-
week pay period to 32 hours (and then to 48 hours), for the
purpose of attending school. According to Surges, at the
time of Leal's request, a part-time position was available,
and Leal had a good absenteeism record of 4 absences during
1976 and 4 absences during 1977, when she worked part
time. Surges also conceded that employee Michael Conway,
a central service attendant, went from 80 to 32 hours per 2-
week pay period on August 20, 1978, thus leaving his full-
time position open.
" Employee Conway was also attending
school and reverted to part time on August 20. He worked at
the Hospital for I year prior to reverting to part-time
employment, and, according to Surges, he was absent twice
during this period. Surges further indicated and conceded
that, when Nichols made her request, the part-time position
that Conway eventually reverted to (on August 20) was open
and available. Surges also mentioned employee Dale Hoff-
her testimony, thereafter expressing certainty that the incident occurred on
June 5. Nichols, in testimony, refutes this date, indicating that she had no
conversation of any nature with Surges on June 5, thus also denying the verbal
admonition for absenteeism that Surges maintained she gave Nichols on that
date. Nichols also testified that she had informed Surges earlier of her
applications for acceptance to the medical assistant program at Concordia
College, a fact also denied by Surges.
:' Nichols testimonially denied that she requested such a "short shift" or
that she ever mentioned her family and her class hours.
" Nichols also denied this statement and indicated that the date of June 23
was picked by Surges.
:' This was also denied by Nichols, who indicated that Surges, in fact. filled
out the form in her presence on June 6, after which she immediately signed
the bottom of the form. Nichols also denied that at this time Surges made any
reference to her absenteeism.
man, a central service attendant. She indicated that Hoffman
had left his employment in January 1977, but was full time
when he left and was also rehired in June 1977 on a full-time
basis. Prior to his departure in January 1977 he had worked
at the Hospital for 1-1/2 years and during this period had
only two absences. Surges also mentioned employees Clara
Miles and Marietta Breeden, both of whom were central
service assistants. According to Surges, both of these
employees worked a full shift or full time, and both reported
to work at 2 p.m. and left at 10:30 p.m. Surges indicated that
this time period was normal, as opposed to reporting at 2:30
p.m. and departing at 11 p.m., as the central service
department did need several employees on staggered hours
to take care of work that came in while other employees
were departing or reporting.
Surges testified that on June 26 and 27 she held a "unit
conference" with employees of her department. Such confer-
ences, according to Surges, were normally held at least once
a month. Surges indicated that at the June 26 and 27
meetings she spoke from a prepared agenda which contained
three items, one dealing with the evaluation of certain type
of paper wrappers, one dealing with the subject of a possible
change in uniforms, and the last dealing with the attitude
survey. Surges testified that she first thanked the employees
for taking the survey and then highlighted their comments,
further mentioning that she was going to have Personnel
Director Frost speak to them regarding questions asked
about benefits, including a dental insurance. Surges denied
that she mentioned anything about "isolation" during these
unit meetings or that she later announced that Frost was
going to speak to them on the subject of "isolation" on July
12. Also on June 26 and 27, Surges testified that she met
individually with each employee in the department at which
time she gave each employee a copy of the memorandum
regarding the "decertification" petition which the Hospital
had filed.
Regarding the union armband incident involving Grace
Leal on July 10, Surges indicated that when Leal arrived, at
or about 2:45 p.m., she called her in her office. She
apparently had seen employee Leal wearing the armband a
week previously and had inquired of Personnel Director
Frost whether or not it was allowed. Frost had thereafter
contacted Surges and indicated that Leal should not be
allowed to wear the armband. Surges made a written
memorandum of her conversation with Leal on July 10, and
this memorandum was admitted into evidence. Included in
the memorandum is a reference to Frost's reply, indicating
that "on advice from Hospital lawyer, she was to request
that [Lead] remove her arm band . . . that she could not
"' Nichols, on the contrary, testified that she was wearing her union button
on June 6 during the termination discussion with Surges and that she in fact
had worn her union button 4 to 5 days a week since she had become an active
union supporter. Further, and as indicated earlier, Nichols disputed Surges'
testimony regarding her request for a "short shift." indicating that she in fact
asked for an alternate shift or an 8-hour shift 4 days a week.
: As discussed earlier, there is a difference between the position of a central
service assistant and a central service attendant. Nichols was an "assistant."
The record, however, is not clear as to what, if any, significance the difference
in positions had in the denial of Nichols' request.
"' Surges was not asked, either on direct or cross-examination, whether or
not she talked about any other matters or the Union during her individual
meetings.
876
ST. JOSEPH'S HOSPITAL
work with it on." The memorandum further indicates that a
future appointment was made for Leal to subsequently
discuss the matter directly with Frost. The memo then
indicates that after a further, short interchange between the
two, Leal obtained her purse, punched out, and left the
hospital.
B. Evaluation of the Evidence and Initial Conclusions
1. Generally
It is clear, from Respondent's "decertification" petition
and other evidence in this case, that Respondent, in June
and July, not only knew of the renewed activity on behalf of
the Union, but had gained and manifested a strong desire for
its expulsion. It is also clear that the major and remaining
outward support for the Union came from certain employees
in the central service department, including employees
Grace Leal and Patricia Nichols. This support was becom-
ing inimical and counter to Respondent's hopeful ouster.
Whether or not Respondent's desires and actions were
motivated by a good-faith intent to do what was best for its
employees, or pursue their majority desires, has no bearing
on the actions charged as unlawful in this case. Respondent
of course was free to file its "decertification" petition, but
was still subject to the restraints imposed by the Act
regarding influence and free choice. The line between
permissible and improper conduct appears that we "stretch"
to reach conclusions unfavorable to employers. However, it
must be remembered that it is not peer relationships that we
judge in these cases. The line is well defined and definite
between employee and employer. Jobs, salaries, and futures
are in the balance, and employer actions and influence have
easier and greater effect on the inclination and actions of
employees than in normal and more equal or democratic
situations. The home-field advantage is with the employer at
work, and the Act seeks to neutralize this advantage when it
comes to the rights granted employees in Section 7 of the
Act. Although Personnel Director Frost and Vice President
Peter Johnson frequently attempted a different label for the
employee "unrest" they spoke of, I find that in the main they
were referring to the renewed union support coming mainly
from the second (p.m.-2:30-11:30) shift in the central
service department, the shift worked by the employees
involved in this case. With the foregoing background,
principles, and findings in mind I shall now proceed to a
specific analysis of each allegation in the complaint in light
of the evidence and record.
2. The employee survey of June 14 (par. 5(a)')
The survey was apparently given to two shifts in the
central service department only. According to Personnel
Assistant Elliott, it was originally scheduled to be given in
the first half of 1979, but was "moved up" by Administrator
Sister Jean, who felt a "more pressing need for it." This
need, according to Personnel Director Frost, was the
" All specific paragraph references are from the complaint in Case 30-CA-
4796.
' 7Tom Wood Pontiac. Inc.. 179 NLRB 581 (1969), 447 F.2d 383 (7th Cir.
1971).
" This fact is of course not changed by virtue of the absence of any
"unrest" mentioned above. Thereafter, the survey was not
given in any other department, to any other employees.
Respondent's reason for this was that the survey needed
"refinements," and the Hospital became involved in prepar-
ing for a late October survey by a joint commission on
accreditation. The survey itself is best described as an
employee "attitude" survey. It contained 20 questions with
ample room for comments. It was given virtually at the onset
of the renewed union activity in the central service depart-
ment and I and 2 months (respectively) prior to the filing of
the charges in this case, yet after Respondent had decided to
challenge the Union's status at its facility. The preservation
of the survey's secrecy and the lack of resulting changes is
irrelevant in this case. I find that Respondent's purpose in
administering the survey was to learn what complaints the
employees in the central service department had which
might have caused the recent and renewed union support.
The act of questioning, in this case, would lead employees to
believe that Respondent was inviting direct dealing and thus
suggest that union support and activities were unnecessary. I
thus find and conclude that the conducting of the survey
constituted a solicitation of grievances and that such
solicitation carried with it an implied promise that at least
some of the grievances would be remedied. Such conduct, I
conclude, violates Section 8(a)(1) of the Act.'"
The complaint also alleges that through the survey, and in
a subsequent discussions of its results, Respondent also
violated Section 8(a)(5) of the Act. Although an impasse had
been reached, it is undisputed that the Union remained the
collective-bargaining representative of the employees in the
central service department." As such, Respondent had a
continuing duty to bargain with the Union. As indicated
above, the survey constituted the improper solicitation of
grievances individually and directly with and from employ-
ees. It invited direct dealing without the need for or
intervention of the employees' duly designated bargaining
representative. Such conduct, under the facts in this case,
clearly constituted individual bargaining with employees in
derogation of Respondent's bargaining obligation to the
Union and thus constituted a violation of Section 8(a)(5) of
the Act.
3. The June 28 group and individual meetings
conducted by Supervisor Surges and the July 12 group
meeting conducted by Personnel Director Frost
(pars. 5(b) and (c))
On June 28 Central' Service Department Supervisor
Surges talked to the employees both as a group and
individually. Surges described the group meeting as a regular
(usually monthly) "unit conference," but conceded she
extension or carryover clause in the old contract, which had expired in
December 1976. Nor would it be changed by indifference or complacence on
the part of the Union, which is urged in this case by Respondent, but upon
which I shall not pass in this Decision.
877
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talked about the results of the survey and possible uniform
changes.3 ' Employee Buffey testiied that Surges explained
that she thought they were "restless" and wanted to know
what changes they wanted in the department, indicating that
she wanted to see what could be done about getting better
wages and uniforms. Employee Vandervoort also remem-
bered the uniform discussion and further indicated that
Surges explained that dental benefits were not available and
that Personnel Director Frost would speak to them later as
to why.
On July 12 Personnel Director Frost met with the
employees as a group and explained why the Hospital could
not furnish a dental insurance program.' Frost indicated
that Surges, who was also present, had asked him to appear
at the meeting. He also discussed the Hospital's improved
health benefits, as it had appeared to him from the survey
that some employees did not understand or realize these
benefits. Frost also related that several questions were asked
regarding the Hospital's alleged opposition to union activi-
ties. Employee Buffey testified that at this meeting Frost also
explained that he knew of the renewed union activity in the
department, and for that reason the survey had been
conducted, and Frost further critized the Union and
indicated that it did not have support at the Hospital.
Employee Vandervoort also testified that, additionally, Frost
mentioned the "decertification"petition, but he added that he
was not antiunion and that the Hospital's administration
would help them find a better union if that was what they
wanted. Vandervoort also noted that Frost indicated that the
rest of the Hospital would not be given the survey, because
most of the "discontent" was coming from the central
service department.
I have found that the survey and its administration were
violative of the Act, constituting, in part, the improper
solicitation of grievances. I look upon the June 28 and July
12 meetings as extensions of the conduct found to be
improper regarding the survey itself. Thus, I find and
conclude, as alleged in the complaint, that by and through
the conduct of the meetings of June 28 and July 12 by
Supervisor Surges and Personnel Director Frost, respective-
ly, Respondent violated Section 8(a)(1) and (5) of the Act.'6
4. Meetings with individual employees by Surges on
June 28 (par. 5(c))
By her own admission, Surges met individually with each
employee on or about June 28 and first "read" the hospital
" The employees wanted this change, which apparently would enable them
to report in street clothes and change upon arrival at the Hospital. It also
would have required the Hospital, instead of the employees, to furnish the
uniform.
" Some employees testified they were told the topic would be "isolation."
Surges denied this, and Frost had no knowledge of it. I choose not to resolve
the issue here. In my opinion, the issue here is the meeting itself and the
subject matter actually discussed. The meeting was held at the Hospital and
during working hours. I find no evidence that attendance was based upon
topic or otherwise.
" Although pars. 5(a) and (b) of the complaint allege certain specific
conduct which I have found violative of the Act, Frost's comments at the July
12 group meeting regarding the Union were not included among the specific
allegations and thus are not considered here.
administrator's "decertification" memo to the employee and
gave the employee a copy." She testified that nothing further
took place or was discussed and that the employees had no
questions, as the memo was "very self-explanatory." Ac-
cording to employee Buffey, when she received her copy of
the memo Surges stated that she did not think the Union was
a good union and mentioned that there had been no contract
for 2 years. According to employee Vandervoort, Surges
stated that there would be an election to find out "once and
for all" whether the Union was doing any more for the
employees than was the Hospital itself, further adding that
they were paying dues while the Hospital was "doing the
same for the employees as the Union would do.""
The complaint itself alleges these individual meetings by
Surges to be improper and unlawful because they were "for
the purpose of disparaging or undermining the Union." The
memo itself, and thus its contents and distribution, does not
appear to be the subject of alleged misconduct in this case. It
is the individual manner of distribution by Surges in light of
the subject matter, together with the alleged extrinsic
remarks by Surges, that the General Counsel deems to be the
gravamen of the violation here. In accord, I find this
individual and private manner of dissemination unusual and
puzzling. Surges herself agreed that the memo spoke for
itself, and I agree. If the memo were for informational
purposes, as it states, why then use the valuable time of both
employees and a department supervisor for an individual
reading to each employee? Why was the memo not merely
handed out or posted or both? I further discredit Surges'
general statement that she made no other remarks during
this process.' There was a recent and current flurry of union
activity and support from her department, and considering
the subject of the memo, I find it impossible to believe that
no topical questions were asked and answers given or
remarks made. I thus credit Buffey and Vandervoort here
regarding Surges' extrinsic remarks. I find that the individu-
al meetings and remarks were calculated to disparage and
undermine support for the Union, which support Respon-
dent had labeled "unrest." I thus find and conclude that
Surges' individual meetings with employees on June 28 were
violative of Section 8(aX)(1) of the Act as alleged in the
complaint.
" Surges testified that she conducted the meetings on June 26 and 27.
Employees Buffey and Vandervoort place the meetings on June 28, the date of
the memo. I find that in fact the date was June 28. As indicated earlier, the
memo simply informed the employees of the filing of the petition and further
recites as follows:
It is our sincere belief that St. Joseph's Hospital employees should have
the opportunity to decide for themselves once and for all in a secret ballot
election if they wish to be represented by Local 150.
"During her testimony Surges was not confronted with or specificially
asked whether she made these (or other) additional remarks on her own, aside
from the mere reading of the memo to each employee.
" I also discredit many other portions of Surges' testimony in this case, and
the reasons therefor will be indicated later in this Decision.
878
ST. JOSEPH'S HOSPITAL
5. The July 5 conversation between employee Leal and
Personnel Director Frost (par. 5(d))
Employee Grace Leal received her copy of the "decertifi-
cation" memo from Surges on July 5.' ° She then called
Personnel Director Frost about the memo. Frost was busy at
that time, and Leal left a message. About 30 minutes later
Frost returned Leal's call, and a telephone conversation
about the memo and the Union ensued. According to Leal,
Frost downed the Union as not being reputable and not
having any place at the Hospital, and gave Leal the
Hospital's reasons for its position, stating (according to
Leal), "[W]hat do you need a Union for when the Hospital
gives you those benefits anyways?" Frost acknowledged
having the telephone conversation and also that he stated his
doubt that the Union "truly" represented the employees,
mentioning the Hospital's increased benefits and further
relating that the Union returned the dues of a member who
was a union steward. Frost denied any "interrogation"
which is the basis of the allegation dealt with here.
I, too, can find no interrogation here, even taking Leal's
testimony at its best. Unlike Surges' individual meetings on
June 28, this conversation was initiated by employee Leal,
who sought the Hospital's basis for the memo. Frost
responded by giving the basis and reciting the Hospital's
feelings or opinions." His "[w]hat do you need aunion
for" question or comment, I conclude, was rhetorical and
in response to Leal's inquiry. Thus, and in my opinion, there
was no "interrogation" and no violation of the Act as alleged
in paragraph 5(d) of the complaint regarding the July 5
telephone conversation.
6. The armband insignia incidents regarding employee
Grace Leal (pars. 5(d) and (6))
On July 10 Leal came to work wearing the red armband
described above. She was soon asked to come into Supervisor
Surges' office, whereupon Surges told her the armband
violated the Hospital's uniform policy and that she would
have to take it off." While in Surges' office, Leal telephoned
Frost, who stood behind Surges' request." Leal then told
Surges she would rather go home than take the armband off.
According to Leal, Surges simply then said," Well, then go
home," which she did. Surges testified she merely told Leal
she had been instructed by Frost to inform her she could not
work with the armband on, after which they exchanged a
few words and Leal punched out and left. Leal was only at
the Hospital a short time that day and was not paid. The
following day (July II11), upon arriving at the Hospital, Leal
talked with Frost in his office about the armband. At this
time Frost reaffirmed his position and stated his opinion that
the Hospital could legally and rightfully restrict employees
from wearing such "obtrusive" union insignia, aside from
"' The record does not reflect why Leal did not receive the memo on June
28. the date of the memo, and when most other employees received their
copies. The record also does not reveal whether or not Surges gave Leal her
copy during a private meeting.
" As indicated earlier, the issuance and distribution of the memo by itself is
not the subject of an alleged violation in the complaint, and I make no
conclusions herein regarding the accuracy of its contents or the Hospital's
true motivations for its drafting and distribution.
' Leal had worn the armband approximately a week earlier. At that time
Surges apparently reported this to Personnel Director Frost, who later told
Surges not to allow Leal to wear the armband again.
union buttons. According to Leal, before she left Frost's
office, he asked her if she were "working with" the Union.
Frost denied asking this or any other such question of Leal.
The complaint in this case alleges the armband restriction
to be an unlawful prohibition from wearing union insignia,
Leal's I-day departure without pay to be an unlawful
reprimand and suspension, and Frost's alleged "working
with" question to be unlawful interrogation. I disagree. I
find the armband to be highly obtrusive, offensive, and in
size, color, and markings and to be well beyond the
character and type of union insignia normally associated
with legitimate and duly constituted labor organizations." It
is reminiscent of those armbands worn by ranking members
of the German Fascist party under Adolf Hitler prior to and
during World War 11. Although it appears commercially
made, its white circle (on fire-engine-red background) is void
of the usual and characteristic Nazi swastika (or Greek
cross), although a small portion of the lower and bent (right
angle) of the removed cross still remains attached (black felt)
in white stitching around the outer edge of the circle. In the
white circle itself is hand-printed, with black felt-tip pen,
"Local 150 SEIU." To conclude that this armband, superim-
posed on the colored but pale central service department
uniforms, would stick out like the proverbial "sore thumb"
in Respondent's hospital setting would be a gross understate-
ment. Further, and because of the nature and appearance of
the armband, I do not find that Leal's somewhat infrequent
contacts with or visits to patient areas minimized its effect or
highly obtrusive and conspicuous nature." The Hospital had
no rule against the wearing of traditional union insignia or
buttons." It was the particular armband involved here to
which the Hospital objected, and I think justifiably so. The
Hospital's prohibition of Leal's armband I find was not
discriminatory, against Leal or the Union, but rather was
motivated by the Hospital's natural and understandable
desires to preserve the dignified and professional appearance
of its employees to the public and its patients and their
visitors and to further protect the health and welfare of its
patients. I further find that this motivation, in this hospital
setting, constituted special circumstances in which the Board
has found justification for such a prohibition, in light of the
specific insigne itself. I thus conclude that the prohibition
itself, regarding Leal's armband, was not a violation of the
Act.
The complaint also alleges an improper and discriminato-
ry "reprimand" and I-day suspension of Leal resulting from
her wearing of the armband. I further and here also disagree.
From the evidence and the above findings, I am not
convinced that there was any actual "reprimand." By Leal's
own admissions she was in effect asked to remove the
armband, and she refused, remarking that she would rather
go home. Even accepting Leal's complete rendition that
Surges followed by replying "Well, then go home," the
" At this time Surges made an appointment to see Frost the following day
about the armband.
" I do not imply here that the Union in this case (Local 150) is other than
legitimate and duly constituted. Indeed, there is no evidence in this case that
the Union supplied or adopted the armband or at the time initiated or
condoned its wearing.
" For example. a duly licensed security guard's choice of a handgun does
not imply the use of a small cannon or a .50-caliber machinegun.
" This employee's right has long been recognized by the Board.
879
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resulting solution to the impasse was Leal's. To imply or
conclude that Surges forced or directed Leal's departure
would be to assume that such would have been the result
had Leal not made the suggestion, which in my opinion is at
best only conjecture. Leal was not threatened with the
outcome or with any other alternative. One could argue that
the only alternative was suspension, and Leal only and
merely suggested the obvious. However, and in like manner,
other alternatives could also be argued. I do not feel at
liberty here to go beyond what is actually in the record. Leal
chose not to remove the armband and suggested the
alternative of going home. Whether to Leal's suprise or not,
Surges stuck to her position and agreed to the suggested
solution. Even thereafter, the option of removing the
armband remained open, but pride, principle, or other
emotions controlled Leal's actions, and she left. I find and
conclude that in the armband incident Surges was within
bounds, and there was no improper reprimand or suspen-
sion.
Lastly, and regarding the armband incident, the com-
plaint alleges unlawful interrogation of Leal by Personnel
Director Frost the following day (July 11). Leal had
requested and obtained an appointment with Frost to discuss
the armband prohibition. According to Leal, after she and
Frost discussed the armband, Frost asked her if she were
"working with" the Union. Frost denied any inquiry as to
Leal's union activities. I discredit Leal here. Frost knew of
the renewed union activity. Leal herself was a leader in such
activity. She had passed out authorization cards and
distributed union literature in the cafeteria. The armband
alone advertised her support. Under the circumstances here,
I cannot conceive that Frost would ask such a question, the
answer to which he knew. Leal stated she "belligerently"
told Frost it was none of his business. Leal's own actions
demonstrated her desire to make her union activities and
support known publicly. Her alleged belligerency in my
opinion does not square with her open union activities and
obvious pride in her union support. I thus find and conclude
that there was no unlawful interrogation of Leal by Frost
during their July 11 meeting.
7. Employee Patricia Nichols' denial of modified hours
and her alleged constructive discharge
(Case 30-CA-4796-2)
Employee Nichols had been accepted for enrollment in a
medical assistant program at nearby Concordia College. The
Hospital was well familiar with the program, as many
employees had attended in the past, some while working
reduced hours. The issue here is one of credibility between
Nichols and Central Service Department Supervisor Lois
Surges. Their testimony is at variance in many significant
areas, including when Nichols first mentioned her possible
enrollment, the date she requested modified or reduced
hours and modifications she requested, and Surges' knowl-
edge of Nichols' union support. I resolve all of these and
other variances in Nichols' favor and discredit Surges
completely in the matter.
Nichols requested minor changes, and such changes or
modifications had been granted other employees in the past
for the same reason, and without problems or fanfare.
Nichols was a known union supporter. She was a participant
in the "unrest" which surfaced in early June. She had passed
out union literature in the cafeteria several times and wore a
union button. The credibility of Surges passed beyond the
questionable stage when she denied any knowledge of this
union support and activity by Nichols. The personnel
administration in the central service department was flexi-
ble, and the Hospital presented no evidence that the
positions of central service assistant and attendant were not
interchangeable. The reasons given by Surges for denying
Nichols' request were that there was no part-time position
available and Nichols' absentee rate or record, which she
emphasized. In contrast, Surges then praised Nichols' work,
indicating she would rehire her. In my opinion, these
positions by Surges are imcompatible and can not be
justified. If in fact there was no position, what was the need
for even mentioning or considering Nichols' absentee rec-
ord? Was the purpose to imply that, if the record had been
better, she would have made room for Nichols? But yet, if
there were no room (or position), how could room be made?
Was Surges indicating that Nichols' absentee record was
satisfactory for full-time employment, but not satisfactory
for part-time or modified hours? I find that the reason set
forth by Surges for refusing the request of Nichols was a
pretext and that the true reason for the refusal or denial was
Nichols' recent and newly acquired membership and interest
in and support of the Union. The Hospital's management
labeled this support and interest as "unrest." The Hospital's
vice president, Peter Johnson, pinpointed this unrest as
being "particularly on the second shift" in the central service
department and went further by placing the responsibility on
the "calibre of supervision" in the department. This hit
home when it came to Surges, who was placed under the
gun. With the request of Nichols came the opportunity for
Surges to dispose of one of the direct causes of the unrest. I
find and conclude that the denial of Nichols' request was
discriminatory and calculated to force and effect her
termination, which I further find constituted the construc-
tive discharge of Nichols in this case, as alleged in the
complaint.
III. THE UNIT
There is no disagreement in Case 13-CA-4796 as to the
appropriate unit of employees involved and represented by
the Union. That unit, as alleged in the complaint, is
described as follows:
All regular full-time and regular part-time employees of
St. Joseph's Hospital, Milwaukee, Wisconsin working
twenty hours or more per week as orderlies, housekeep-
ing aides, utility workers, laundry, kitchen, lab aides,
central supply aides, surgery aides, aides and cafeteria
workers, excluding all other employees, supervisors,
office and professional employees, and affiliates of
religious order, R.N.'s, students, craft and technical
employees.
Upon the foregoing findings of fact and initial conclu-
sions, and upon the entire record, I hereby make the
following:
880
ST. JOSEPH'S HOSPITAL
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union in Case 30-CA-4796 is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Union is the collective-bargaining representative of
and for certain employees of Respondent, and said employ-
ees are those contained in the unit described and set out in
section Ill (the Unit) of this Decision, and further said
employees and unit constitute an appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(a) and (b) of the Act.
4. That Respondent in 1978 violated Section 8(a)(1) and
(5) of the Act on the following dates and by the following
actions:
a. On June 14 by selectively administering an
employee attitude survey concerning working condi-
tions to certain employees in order to ascertain their
union sympathies and
b. On June 28 and July 12 by meeting collectively and
individually with employees to solicit grievances with
an implied promise to directly adjust those grievances,
and thus to disparage or undermine employee support
for the Union.
5. Respondent in 1978 violated Section 8(a)(l) and (3) of
the Act on the following dates and by the following actions:
a. On June 6 by discriminatorily denying the request
of employee Patricia A. Nichols for modified or part-
time hours or employment because of her protected
concerted activities in supporting the Union and
b. On June 23 by constructively discharging the said
Patricia A. Nichols because of her activities described
above.
6. Respondent has not otherwise violated the Act.
7. The improper and unlawful acts and conduct found
herein and concluded in paragraphs 4 and 5, above, affected
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1),
(3), and (5) of the Act, I shall recommend that it cease and
desist therefrom," that it bargain collectively with the Union
with respect to wages, hours, and other terms and conditions
of employment; and that it take certain affirmative action as
set forth below designed to effectuate the purposes and
policies of the Act.
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act by unlawfully and constructively
" I shall also recommend that the additional "cease and desist" provision of
the Order of the narrow variety, which I feel to be more appropriate in this
case. See Hickmor Foods. Inc.. 242 NLRB 1357.
" See, generally, Isis Plumbing d Healing Co.. 138 NLRB 716 (1962). In his
brief the General Counsel has requested that a remedial interest rate of 9
percent per annum be imposed on the backpay for which Respondent is liable
due to the violations found herein, a percentage which is at variance with the
Board's current policy of calculating interest according to the "adjusted prime
rate" utilized by the Internal Revenue Service for interest on tax payments.
discharging employee Patricia A. Nichols, I shall recom-
mend that Respondent offer her immediate and full rein-
statement to her former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges
previously enjoyed.
I shall further recommend that Respondent make Nichols
whole for any loss of earnings she may have suffered as a
result of the discrimination against her by payment of a sum
of money equal to that which she normally would have
earned from the date of discharge to the date of its offer of
reinstatement, less net earnings, with interest thereon to be
computed in the manner prescribed in F. W Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).'"
It will also be recommended that Respondent preserve
and make available to the Board, upon request, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary and
useful to determine the amount of backpay due and all the
rights of reinstatement under the terms of these recommen-
dations.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER '
The Respondent, St. Joseph's Hospital of the Franciscan
Sisters of Milwaukee, Inc., Milwaukee, Wisconsin, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Administering a survey of employee attitudes concern-
ing working conditions for the purpose of ascertaining
employees' sympathies for Local 150, Service and Hospital
Employees International Union, AFL-CIO, or selectively
administering such a survey to any groups of employees who
are felt to support that labor organization.
(b) Meeting with employees individually, collectively, or
in small groups for the purpose of disparaging or undermin-
ing the above-named labor organization.
(c) Soliciting grievances or complaints from employees
concerning working conditions in an attempt to undermine
the above-named labor organization by promising to adjust
those grievances without first bargaining about them with
that labor organization.
(d) Discriminatorily denying the request of employees to
modify their hours or employment from a full-time to a part-
time basis, or constructively discharging employees by
discriminatorily denying such requests, because of their
activities on behalf of the above-named labor organization.
This request is denied. See Southern California Edison Company, 243 NLRB
372, fn. I (1979).
, n 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.
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercising of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer Patricia A. Nichols immediate and full reinstate-
ment to her former job on a part-time basis or, if such job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges
previously enjoyed, and make her whole for any loss of pay
she may have suffered as a result of her unlawful discharge,
in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Bargain collectively with the above-named labor
organization as the exclusive bargaining representative of all
employees in the bargaining unit found to be appropriate
herein with respect to wages, hours, and other terms and
conditions of employment.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
records, social security records and reports, and all other
records necessary to analyze the amount of backpay due
herein.
(d) Post at its hospital and places of business in Milwau-
kee, Wisconsin, copies of the attached notice marked
"Appendix.""' Copies of said notice, on forms to be provided
by the Regional Director for Region 30, after being duly
signed by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 30, in writing,
within 20 days from the date of receipt of this Decision,
what steps have been taken to comply herewith.
of the United States Court iof Appeals Enforcing an Order of the National
Labor Relations Board."
882