St. Vincent Health System

National Labor Relations Board - Board Decisions

Mar 24, 2000

330 N.L.R.B. 1051 (N.L.R.B. 2000)

ST. VINCENT HEALTH SYSTEM 1051
St. Vincent Health System and Office & Professional
Employees International Union, AFL–CIO, Peti-
tioner. Case 26–RC–8124
March 24, 2000
DECISION AND DIRECTION OF SECOND
ELECTION
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held November 4, 5, and 6, 1999, and the hearing offi-
cer’s report recommending disposition of them.1 The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 374 for, and 382
against, the Petitioner, with 26 challenged ballots, a suf-
ficient number to affect the results.2
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings3 and recommendations,4 and finds that the elec-
tion must be set aside and a new election held.
[Direction of Second Election omitted from publica-
tion.]

1 The pertinent portions of the hearing officer’s report are attached as
an appendix.
2 During the hearing, the parties agreed that nine ballots, challenged
by the Petitioner, would be opened and counted, and that the remaining
challenges would be sustained. The revised tally of ballots shows 376
for, and 389 against, the Petitioner, with no remaining undetermined
challenged ballots.
3 We correct the hearing officer’s report to show that the Petitioner
withdrew Objection 9 at the hearing and that the hearing officer over-
ruled Objection 14.
In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s overruling of Objections 14 and 22 and that part of Objection 13
which alleges that the Employer maintained a list of employees who
did or did not vote in the election.
4 In adopting the hearing officer’s recommendation that the election
be set aside, we rely only on the conduct pertaining to the following
objections: Objections 2 (the threat by Director of Nursing Harty), 3, 6,
8, 11 (the threats by Director of the Coronary Care Unit Trevino), and
15. We find it unnecessary to pass on the hearing officer’s findings
regarding other alleged objectionable conduct. With respect to the
findings regarding Objection 6, which we adopt, we find it unnecessary
to rely on the dissent in Crowley, Milner & Co., 216 NLRB 443 (1975),
which the hearing officer cites. Member Brame finds it unnecessary to
rely on Objection 6.
We decline to follow the hearing officer’s suggestion that the second
election be conducted by mail ballot. The parties’ Stipulated Election
Agreement provided for a manual election and that “agreement cannot
be cast aside, absent unusual circumstances which make the agreement
impossible to perform.” T & L Leasing, 318 NLRB 324, 326 (1995).
Therefore, we find it unnecessary to pass on the question whether, in
the absence of the Stipulation, a mail-ballot election would be appro-
priate under San Diego Gas & Electric, 325 NLRB 1143 (1998).
Member Brame would find a mail-ballot election here inappropriate in
any case. See his dissenting opinion in San Diego Gas & Electric,
supra.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON CHALLENGES AND
OBJECTIONS TO ELECTION
The Threat by Director of Nursing Harty
At 1 p.m. that day, Director of Nursing Harty returned to the
table in the cafeteria where Coleman and Naiad were sitting
and asked how things were going. Harty then remarked to
Coleman, “I want you to remember, you are an employee of St.
Vincent and we sign your paycheck. If I wanted you gone,
you’d be gone. I am a very straightforward person.” Harty’s
version of this incident differs only slightly. Harty claims that
she told Coleman that St. Vincent signed both of their pay-
checks and that the hospital had rules that must be followed.
Harty claims, “I might have said if we wanted this to be gone,
meaning the table from the cafeteria, breaking down the, you
know, their pamphlets and literature, that would be gone.” I
credit Coleman and Naiad with regard to this conversation, and
find Harty’s testimony to be contrived.
Harty’s comment was, of course, a threat, and is independ-
ently violative of Section 8(a)(1) of the Act, and therefore an
act of election interference.
The Actions of the “Vote No” Committee
Concerning the purple “Vote No” ribbons, RN Patricia
Louise Lashley credibly testified that she observed stipulated
Supervisor Dana Downs-Hall handing out purple ribbons to the
employees in the outpatient department, and pinning a purple
ribbon on RN Tessisita Rose. Rose later told union organizers
that she was afraid to remove the purple ribbon, for fear that the
Employer would know that she favored the Union.
One other individual was involved in the distribution of the
purple “Vote No” ribbons. According to RN Sheila D. Taylor,
on October 27, 1999, Sister Margaret was handing out purple
ribbons to the RNs in the emergency room, telling them,
“These ribbons are symbols of solidarity against the Union.” It
is unclear precisely what Sister Margaret’s position is with the
hospital, but there is testimony that Sister Margaret counsels
families in the ER, and conducts the United Way campaign at
the hospital.
Discussion
Further, by requesting employees to wear the “Vote No”
purple ribbons, the Employer was placing employees in the
position of declaring their union preference. The supervisor
who engaged in this activity, Dana Downs-Hall, in effect forced
each employee whom she approached to announce his or her
choice for or against the Union. Such conduct is violative of
Section 8(a)(1) of the Act, and constitutes impermissible elec-
tion interference. Reeves Rubber, Inc., 252 NLRB 134 (1980);
Crowley, Milner & Co., 216 NLRB 443, 448 (1975).
330 NLRB No. 155
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
I make no findings with regard to the conduct of Sister Mar-
garet, since there is insufficient evidence that she is a supervi-
sor or is otherwise an agent of the Employer. Her duties in the
emergency room seem consistent with her religious vocation of
comforting the sick, and providing for the less fortunate.
Concerning promises of benefits, RN Barbara J. Elrod testi-
fied concerning a meeting she attended on October 27, 1999, in
the Three Northwest conference room, where Hospital Interim
President and CEO Bill McDonald spoke to the RNs and CNAs
present. McDonald spoke about his goals for the hospital, and
asked employees, “Have you heard any good rumors?”
The employees present aired various grievances, including a
lack of supplies. McDonald responded, “We are working on
that.”
Employees asked about salaries, and about changes in the
401(k) plan. McDonald responded, “We are going to do a mar-
ket analysis to bring St. Vincent in line with other institutions.
Some of you will probably be getting raises to bring you in line
with the area market.” Other employees complained about be-
ing “topped” out’ in wages, and McDonald gave the impression
that he would attempt to remedy this.
While McDonald testified at the hearing, he did not address
the above-referenced allegations, much less deny them. Thus,
while the Union was never mentioned during McDonald’s
meeting with employees, the timing of this meeting less than a
week before the election, coupled with the solicitation of em-
ployees grievances and the explicit and implied promises to
remedy those grievances, leads to the conclusion that this con-
duct was another act of impermissable election interference.
Threats by Lori Trevino
Other employees, however, were the recipients of remarks
that they viewed as threats of reprisal. RN Jeffrey Wayne Alli-
son testified concerning a conversation he had with Lori
Trevino,4 the director of the CCU, and his immediate supervi-
sor. Trevino is stipulated to be a statutory supervisor. Accord-
ing to Allison, around the first week of October, he spoke with
Trevino near the main desk in the unit, and Trevino remarked,
“One [sic] this union stuff blows over, we are going to get rid
of these people who have negative attitudes.” There can be little
doubt as to which people Trevino perceived as having bad atti-
tudes. Several weeks later, in mid-October, Trevino called a
unit meeting in the conference room of the CCU, which was
attended by five RNs. At this meeting, Trevino discussed the
employees with bad attitudes who had started the union activ-
ity, and repeated her threat to get rid of them once the union
campaign was over. Trevino mentioned RN Audley Frijlink, an
ardent union supporter, by name.
Trevino repeated her threat again a few days before the
NLRB election, again commenting to RN Jeffrey Allison,
“People with negative attitudes who are stirring up the union
trouble . . . we will get rid of them once its over.”
Trevino testified at the hearing, and denied these threats at-
tributed to her. However, RN Mark Gregory, who also works in
the CCU, testified as a rebuttal witness, and he asserts that
Trevino made these threatening remarks. Thus, I specifically
discredit Trevino, and conclude that all of these remarks by
Trevino are threats, and constitute a basis for setting aside the
election conducted in this matter.

4 Trevino’s name is incorrectly spelled “Previno” in the official tran-
script.
RN Philip Paul Winters works on Three North in the medical
surgery unit. He testified concerning remarks made to him by
Lori Trevino, the director of the CCU during the week of Octo-
ber 18, 1999. According to Winters, Trevino came into his unit
and commented that she wanted to make sure that everyone
voted on the union issue. Supervisor Stella Partin remarked to
Trevino, “You might want to say that to Phil [Winters], he sup-
ports the Union.”
Trevino then turned to Winters and commented, “You know
you will get less pay.” Winters replied that Trevino couldn’t
say such a thing to him, but Trevino continued, “If the union
gets in, you will get less pay, you will start from nothing.’’
Trevino denies making this remark, but as noted previously, I
discredit her. Trevino’s remarks constitute a threat of loss of
benefits, and election interference. Uniroyal Technology Corp.,
324 NLRB 429, 432 (1997); Eaton Technologies, 322 NLRB
848 (1997).
Objection 8 alleges that the Employer confiscated union lit-
erature. Two witnesses testified with respect to this objection.
RN Rosemary Rogers, who works in the ER testified that there
is a large bulletin board in the ER lounge, where official notices
to employees are posted, but also personal announcements such
as notification of baby showers, birthday parties, birth an-
nouncements, and cars for sale. Employees do not need permis-
sion to post materials on this bulletin board, and beginning in
the spring of 1999, Rogers posted announcements concerning
union-related issues more than 30 times. Rogers notes, how-
ever, that closer to the election, in October 1999, notices would
disappear from the bulletin board within hours of posting.
On or about October 20, 1999, Rogers had a conversation
with Bob Burritt, the director of the ER, a stipulated supervisor.
Burritt remarked, “Things that are on the bulletin board are not
to be taken down by anyone but the person who posted them,
except the union things. I have to take them down.” Evidently,
what prompted this outburst was that someone had removed a
poster posted by Sister Margaret concerning the Star Campaign,
a scholarship program, and Sister Margaret had complained to
Burritt. Rogers notes that she never saw anyone remove any
union literature from the bulletin board.
RN Joyce L. Roberts, who also works in the ER, tells a simi-
lar story. She has been posting union notices on the ER bulletin
board since January or February 1999. However, around Octo-
ber 1999, the union literature was removed with alacrity. She
has no idea who was removing her postings.
Burritt did not take the stand during the hearing, thus, I must
credit the Petitioner’s witnesses. In the absence of the admis-
sion by ER Director Burritt that he had instructions to remove
union literature from the bulletin board, I would have no basis
for attributing the mysterious disappearance of union literature
to the Employer. After all, prounion employees may well have
removed union-related postings for closer perusal elsewhere.
Antiunion employees may have removed the prounion postings
for their own purposes. Burritt’s admission to RN Rogers, cou-
pled with the acceleration of campaign activities as the election
date approached, causes me to conclude that Burritt removed
the prounion literature from the ER bulletin board, thus
interfering with employees Section 7 rights, and with a free and
fair election. Eaton Technologies, supra; St. Anthony’s Hospi-
tal, 292 NLRB 1304 (1989). While the Employer contends that
Burritt’s conduct was isolated, and that there is no evidence that
any union literature was removed from any of the more than
ST. VINCENT HEALTH SYSTEM 1053
100 bulletin boards located elsewhere in the Employer’s facil-
ity, I nonetheless recommend that Objection 8 be sustained.
Conclusions and Recommendations
Having recommended that Petitioner’s Objections 13 and 22
be overruled, and that Petitioner’s Objections 1, 2, 3, 4, 6, 8, 9,
11, 13, 14, 15, 16, 17, and 18 be sustained, it is further recom-
mended that the election conducted on November 4, 5, and 6,
1999, be set aside, and a second election directed.5
Should the Board adopt this recommendation, I urge the
Board to direct that the rerun election be conducted by mail
ballot. As noted previously in this report, only 765 employees
cast valid ballots, out of 850 eligible voters, a voter turnout of
only 90 percent. This voter turnout rate is substantially lower
than the typical turnout of approximately 95 percent in most
Board elections, would no doubt have been even lower had not
the Employer paid off-duty employees 2 hours pay to come in
and vote.
During this election, every effort was made to accommodate
voters. While Section 11316 of the Board’s Casehandling Man-
ual notes that a typical checking table can accommodate 250–
400 voters per hour, here an astonishing 105 hours of voting
was conducted over a 3-day period, at a total of three different
voting sites. This resulted in a substantial expense to the Board

5 Under the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, exceptions to this report may be filed with the Board by
February 8, 2000. Any party may waive its right to request review by
signing the attached waiver form and submitting it to the Board in
Washington with a copy to the Regional Director.
for travel, lodging, and compensatory time for the Board agents
involved.
In San Diego Gas & Electric, 325 NLRB 1143 (1998), the
Board clarified the circumstances under which Regional Direc-
tors might direct the use of mail ballots. Among the factors
listed by the Board is whether employees are “scattered” be-
cause of their job duties over a wide geographic area, or are
“scattered” in the sense that their work schedules vary signifi-
cantly. The Regional Director is also to consider the desires of
the parties, the likely ability of voters to read and understand a
mail ballot, the efficient use of Board resources. Here, there is
testimony from the Employer’s interim president and CEO that
there is never a time when all eligible voters are scheduled to
work, thus, voters are “scattered” in their work schedules, pro-
viding coverage 24 hours per day, 7 days a week, 365 days per
year. As noted previously, voters are also geographically “scat-
tered,” working at three different worksites, thus requiring mul-
tiple voting locations for manual voting.
These are well-educated voters, who can easily cope with the
minimal challenge of casting a mail ballot. Finally, I note that
conducting the rerun election by mail ballot will not only result
in a substantial cost savings to the Board, and would be a much
more efficient and economic use of Board agent time, but will
also eliminate many of the issues raised by the Petitioner with
regard to alleged improprieties in the manual voting process.
Simply put, there would be no issues with regard to list keep-
ing, or campaigning among voters waiting in line to vote, or
misconduct by election observers. I strongly urge that mail
balloting be directed in the rerun election.