St. Vincent Medical Center

National Labor Relations Board - Board Decisions

Mar 31, 2003

338 N.L.R.B. 888 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 888
St. Vincent Medical Center, A Division of Catholic
Healthcare West, Southern California and
Healthcare Employees Union, Local 399, Affili-
ated with the Service Employees International
Union, AFL–CIO. Case 31–CA–24325
March 31, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The issue presented in this proceeding1 is whether the
Respondent violated Section 8(a)(3) and (1) of the Act
by discharging the employees in its respiratory care de-
partment and subcontracting out their work shortly be-
fore a representation election involving these employees.
The judge found that the General Counsel had failed to
meet his initial burden under the Wright Line2 test of
establishing that antiunion sentiment was a substantial or
motivating factor in the Respondent’s decision to sub-
contract the respiratory care department. The judge ac-
cordingly concluded that the Respondent did not violate
the Act and recommended that the complaint be dis-
missed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,3
and conclusions and to adopt the recommended Order
dismissing the complaint.4

1 On December 11, 2000, Administrative Law Judge Frederick C.
Herzog issued the attached decision. The General Counsel and the
Union each filed exceptions and a supporting brief. The Respondent
filed a brief in opposition to the exceptions of the General Counsel and
the Union. The Respondent filed cross-exceptions to the judge’s deci-
sion.
We reject the Respondent’s contention that the Board should disre-
gard the General Counsel’s exceptions because they fail to comply with
Sec. 102.46(b)(1) of the Board’s Rules and Regulations. The General
Counsel’s exceptions substantially comply with the Board’s Rules and
Regulations and are sufficient to warrant Board consideration.
2 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
3 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 The General Counsel contends that he presented evidence estab-
lishing that antiunion animus was a motivating factor in the Respon-
dent’s decision to subcontract the respiratory care department. Assum-
ing arguendo that the General Counsel satisfied his initial burden under
Wright Line, supra, we find that the Respondent has proven its affirma-
tive defense under Wright Line of demonstrating that it would have
1. The Union requests that the Board take judicial no-
tice of the judge’s decision in St. Francis Medical Cen-
ter, Case 21–CA–32642 (Dec. 15, 2000), and the Re-
spondent filed an opposition. The Union asserts that the
Board should consider the findings in that case because
the respondent in that proceeding and the instant Re-
spondent are both owned and operated by Catholic
Healthcare West. We decline to take judicial notice of
St. Francis Medical Center because it is pending on re-
view before the Board and the judge’s findings therein
are not binding authority. We deny the Respondent’s
motion to strike the Union’s exception number three
which contains the request to take judicial notice.
2. The General Counsel filed a motion to strike two
health care journal articles, and California State statute
citations, relied on by the Respondent in its opposition
brief to the General Counsel’s exceptions. The Respon-
dent filed an opposition to the motion to strike, and re-
quests that the Board take judicial notice of the Califor-
nia State statutes. We grant the General Counsel’s Mo-
tion to Strike the two articles because they are outside of
the record in this proceeding. It is not necessary to take
judicial notice of California State statutory authority.
The Respondent’s citation to that authority in its brief is
sufficient to draw it to our attention. We deny the Gen-
eral Counsel’s Motion to Strike the statutory citations.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Anne P. Pomerantz, Atty., for the General Counsel.
Stephen P. Pepe and Eva B. Antolinez, Attys. (O’Melveny &
Myers LLP), of Newport Beach, California, for the Respon-
dent.
James Rutkowski, Atty. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Los Angeles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Los Angeles, California, on June 26,
through June 30, 2000, and is based on a charge filed by
Healthcare Employees Union, Local 399, affiliated with the
Service Employees International Union, AFL–CIO (Union),
alleging generally that St. Vincent Medical Center, a Division
of Catholic Healthcare West, Southern California (Respon-
dent), committed certain violations of Section 8(a)(1) and (3) of
the National Labor Relations Act (Act). On March 22, 2000,

taken the same action even in the absence of the employees’ protected
activities. Specifically, the Respondent has established that it imple-
mented its subcontracting decision within the 30-to-60-day timeframe it
announced prior to the filing of the petition for a representation elec-
tion.
338 NLRB No. 130
ST. VINCENT MEDICAL CENTER 889
the Regional Director for Region 31 of the National Labor Re-
lations Board (Board), issued a complaint and notice of hearing
alleging violations of Section 8(a)(1) and (3) of the Act. The
general thrust of the complaint is that Respondent violated the
Act by discharging and contracting out the work of 27 respira-
tory care employees on February 1, 2000. Respondent thereaf-
ter filed a timely answer to the allegations contained within the
complaint, denying all wrongdoing.
All parties appeared at the hearing, and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and file
briefs. Based upon the record, my consideration of the briefs
filed by counsel for the General Counsel and counsel for Re-
spondent, and my observation of the demeanor of the witnesses,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, and the answer admits, that Respon-
dent is a California corporation, with its principal place of busi-
ness at 2131 West Third Street, Los Angeles, California, where
at all times material herein it has been engaged in the operation
of a hospital; that during the calendar year preceding the issu-
ance of the complaint, in the course and conduct of its business
operations, it purchased and received at its facility mentioned
above goods valued in excess of $50,000 directly from enter-
prises located outside the State of California; that during the
same period it derived gross revenues in excess of $250,000.
Accordingly, I find and conclude that Respondent is now,
and at all times material herein has been, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and has been a health care institution within the mean-
ing of Section 2(14) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that the
Union is now, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The General Counsel alleges that St. Vincent Medical Center
violated Section 8(a)(1) and (3) of the Act by subcontracting its
respiratory care department (respiratory care or the department)
to California Respiratory Care Services (CRS), allegedly be-
cause (1) the respiratory care employees engaged in union ac-
tivities and to discourage other employees from supporting the
Union; or (2) the respiratory care employees concertedly re-
fused to sign 12-hour shift program acknowledgement forms.
St. Vincent Medical Center (SVMC), is an acute care hospi-
tal located in Los Angeles, California, employing approxi-
mately 1100 employees. The hospital is headed by its presi-
dent, Bill Parente. Eleanor Ramirez, senior assistant adminis-
trator of operations, reports to Parente and is accountable for
the operations of the medical center including all the patient
service areas, the ancillary services, the professional service
areas, risk management, and corporate compliance. Zita Uy,
assistant administrator with responsibilities over all ancillary
departments and general services, reports directly to Ramirez.
The ancillary departments include the diagnostic departments
such as radiology, laboratory, pharmacy, respiratory care,
physical therapy, occupational therapy, and speech pathology.
General services include the facilities department, nutrition
services, environmental services, and biomedical. These de-
partments comprise approximately 250 employees.
The respiratory care services department or “RC” employees
are respiratory therapists responsible for administering various
treatments throughout the entire hospital. They go where
needed to administer everything from intubations to ventilators
or life support systems. They are responsible not only for car-
rying out doctors’ orders for treatment, but also for using their
independent judgment and doing what is best for the patient. In
order to judge what needs to be done, the therapists must do
assessments of patient health and report on the patients’ status
to the oncoming shift in order to ensure continuity of treatment,
regardless of whether a form is used. The expected goal in
administering all treatments is a successful outcome; that is,
one where the patient improves or is cured. As the audits of the
records show, this is not always possible.
Until February 1, 2000, the 27 RC employees were directly
employed by Respondent. On that date, however, the 27 em-
ployees in that department were all discharged, and Respondent
no longer directly employed any respiratory therapists. Instead,
Respondent entered into a contract to have such services per-
formed by a subcontractor, which, in turn, and at the insistence
of Respondent, immediately employed all the laid-off employ-
ees. Thus, since that date, the employees have performed the
same work, in the same locations, but in the employ of a differ-
ent employer and under different working conditions.
B. Issues
Counsel for the General Counsel contends that Respondent
took the action it did in order to retaliate against employees for
their concerted activities, and in order to thwart the desires of
employees for union representation. Respondent counters that
its actions were caused purely by business considerations, and
the desire to correct longstanding problems.
The Union first began its activities at Respondent’s facilities
in early 1998. Though those activities were initially minimal,
Respondent acknowledges that it became aware of them almost
immediately. That awareness happens to coincide with Re-
spondent’s expressed knowledge of, and concern about, prob-
lems within the respiratory care department.
Counsel for the General Counsel contends that Respondent
took action against the RC employees only after the Union
intensified its campaign at Respondent’s facility in mid-1999,
and only after the employees had concertedly refused to sign
consents to have their hours of work changed.
C. Facts
This case had remarkably few factual disputes between
counsel for the General Counsel and Respondent. Thus, unless
highlighted below, I have accepted counsel for the General
Counsel’s evidence as true, and Respondent’s evidence as true.
In either instance, their evidence was unrefuted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 890
Until 1998 the RC employees worked under the supervision
of Barbara Asmundson, and during the night, under Ramon
Suarez. However, Respondent’s evidence was that it became
concerned about the consistent failure of the department to
meet standardized productivity standards, i.e., the MECON
measurements. This led to a decision to remove Asmundson in
early 1999. Into her place, Respondent promoted Ray Han-
cock, who already was the manager of cardiology. These steps
were taken by Zita Uy, the assistant administrator who oversees
the RC department, and who reports to Eleanor Ramirez, the
senior assistant administrator of operations and nursing.
However, Hancock may or may not have been a good choice
for the position. First, he had no specialized training for respi-
ratory care, though he did have experience in the work. Fur-
ther, not only was he already in charge of the cardiology de-
partment at Respondent’s facility, he also managed the same
two departments in another hospital a few miles away. Uy
selected him based upon his success in the cardiology depart-
ment, and his training as s registered nurse, and his experience
in the pulmonary field.
At the same time, the duties of Suarez were expanded to ex-
tend into the day shift, leaving the night shift to essentially run
itself. When it took this action, Respondent was admittedly
aware of the fact that Suarez had a very poor record as a super-
visor, and that he lacked the skills to perform supervisory work
successfully.
Respondent’s evidence shows that in early 1999, Uy and
Hancock had several meetings to discuss the status of the
department, and specifically to go over the MECON results.
Then, in April, the pulmonary section committee, made up of
medical staff at the facility, issued its regular quarterly report.
The report was critical of the operation of the RC department in
a number of respects. Later that same month, consistent with
complaints from employees about being overstaffed and being
sent home, Respondent laid off six RC employees.
Respondent’s evidence also showed that during 1998 and
1999 the RC department repeatedly failed to, among other
things, administer treatments to patients, or to properly docu-
ment patients’ charts for treatments. This led to patients being
deprived of medical attentions called for by their doctors, as
well as some being over billed and others being under billed.
In April 1999, Respondent created a committee to audit such
errors. This led, on May 26, 1999, to Hancock and Suarez
being instructed to develop an action plan concerning the
documentation issues in the department, to monitor the situa-
tion more closely, and to discipline employees who failed to
properly document treatments.
On May 27, 1999, Uy met with Suarez to discuss the prob-
lem of “missed treatments.” Suarez was instructed to monitor
the problem more closely.
In June 1999, further criticism of the department by the au-
diting committee led to Hancock being instructed to more
closely monitor and assess Suarez’ performance.
In July 1999, Uy met with Ramirez to discuss the RC de-
partment. According to Uy, they noted that the experience
during 6 months preceding had not led to improved perform-
ance by the department, despite the change in supervision. This
led to a discussion of the relative merits of subcontracting the
department’s work. Uy testified that she recounted the success-
ful use of that device in other departments. In the end, how-
ever, Uy and Ramirez decided to give Hancock and Suarez
additional time to work out the problems, and agreed to meet
again to review the situation in 3 to 4 months.
Of note, there is no claim that any of the employees was a
poor employee, or did substandard work, or deserved disci-
pline. Yet, Respondent presented much credible evidence that
it continued to receive persistent complaints from medical staff
about work being done improperly or not at all.
The audit charge master committee and its subcommittee
constantly recommended staff training/education and imple-
mentation of new procedures, charge codes, and forms. How-
ever, no training was done by any manager or doctor during
1999, and no new equipment was forthcoming. A new assess-
ment form was ordered, but did not arrive before the subcon-
tract took effect. Likewise, despite the fact that they had been
asked for 2 years ago, neither new, additional billing codes, nor
per diem staff were provided until after the subcontract took
effect.
However, even if these things had been provided, it seems
unlikely that they would have solved the problem. Ramirez,
Uy, Hancock, and Suarez acknowledged within their various
own meetings, that the RC department’s problems were attrib-
utable to deficits in Hancock’s and Suarez’ abilities to manage
the department and the issues that arose therein. In fact, Re-
spondent’s managers and agents testified explicitly that any
deficiency lay at the feet of the leadership, not the employees.
Hancock and Suarez themselves discussed the fact that the RC
department’s problems could be fixed by having the right man-
ager.
The evidence is undisputed that the RC employees them-
selves repeatedly called Respondent’s attention during the
summer and fall of 1999 to the problems they encountered
which, in their view, prevented them from performing their
doing jobs properly, e.g., the lack of “billing codes” and equip-
ment, and being continually understaffed. Respondent’s
management did not then, or since, criticize any employee for
“slacking off.” Indeed, though given numerous opportunities
during the trial to blame the problems of the RC department
upon the employees who worked there, all such opportunities
were refused. Indeed, aside from a random instance having no
relevance here, the record shows that despite the months and
months that Respondent allegedly suffered under the burdens
imposed by the maladies of its RC department no employee
was ever disciplined for any wrongdoing.
According to Respondent’s unrefuted evidence, the summer
and fall of 1999, witnessed a continuation of problems within
the RC department. The details are unimportant since they are
unrefuted and I have no reason to find them to be untrue. Suf-
fice it to say that during July, August, and September of 1999,
Uy received complaints from various medical staff, and the
charge audit committee about deficient work by the RC de-
partment. The complaints ran the gamut from work prescribed
by physicians not being done to an RC therapist using a dirty
needle on a patient.
Thus, true to her word several months earlier, Uy met with
Hancock and Suarez on November 18, 1999. After noting their
ST. VINCENT MEDICAL CENTER 891
inability to resolve the department’s problems, Uy, for the first
time, raised the possibility of subcontracting the department’s
work. At no time during the meeting was the issue of the Un-
ion, or its activities, raised or discussed.
Next day, Uy informed Ramirez that the problems in the RC
department had not improved since their last talk several
months earlier despite the fact that they’d “tried really hard,”
and that Hancock and Suarez suggested the department be sub-
contracted. The meeting ended with Ramirez giving her au-
thorization for Uy to investigate the subcontracting possibilities
further, and agreeing to meet again in the near future to discuss
the issue.
Uy and Ramirez met again on December 20, 1999, to discuss
the issue. Though they first discussed the possibility of replac-
ing the managers of the RC department, that possibility was
rejected according to the credible testimony of Uy because it
had already been tried without success, and Uy’s doubts about
her own ability to successfully select another manager. At the
end of the day, Uy and Ramirez were in agreement that subcon-
tracting offered the best chances of success in dealing with the
problems of the RC department. Uy credibly testified that the
subcontracting of the work of several departments had led in
the past to improved performance in those departments. They
admittedly embraced the concept that, if the changes did not
work out, the responsibility for the problem would rest with the
subcontractor, and not them.
Uy ultimately recommended that subcontracting be consid-
ered. At no point during their meeting was the Union, or its
prospects, discussed.
Thus, on December 22, 1999, Uy and Ramirez met with Re-
spondent’s president, Parente, and discussed subcontracting the
department, with Hill, Respondent’s director of human re-
sources participating by phone. Uy and Ramirez recommended
subcontracting the RC department. In turn, Parente concluded
that he should accept the recommendation, adding that it would
be the responsibility of the subcontractor to provide an accept-
able manager for the department, and that, if the first manager
selected were to fail, to find another manager.
Meanwhile, on December 7, 1999, Respondent held a man-
datory meeting with all the RC department employees. The
purpose was to discuss a new California law which provided
that employers pay overtime pay for hours worked in excess of
8 hours per day, unlike the previous law which merely required
overtime payments for hours in excess of 40 per week. Re-
spondent announced what the employees took to be a wage
decrease of 14.22 percent. Naturally, this led to a good deal of
discussion, the details of which are not important here. What is
important is that the meeting ended with Respondent passing
out ballots and telling employees to vote. Hancock remained in
the room to collect the ballots.1
Within the next couple of weeks Respondent left forms out
for employees to sign, acknowledging the cut in the pay rate
and consenting to work 12-hour shifts. Yet, none of the em-

1 While one of the General Counsel’s witnesses initially testified that
the therapists were not given an option, he later admitted that Hill told
employees that they would be voting on whether to adopt Respondent’s
12-hour shift plan or to return to an 8-hour shift.
ployees signed the forms or returned them to Respondent. The
evidence is that their failure to do so was concerted in nature.
Hancock and Hill acknowledged that they were aware of the
failure of the employees to return the forms.
Respondent, however, points out that the change in sched-
ules and pay rates were mandated by a new law, and not due to
any choice of Respondent. It also points out that as it prepared
to implement the changes mandated by law, it sent an explana-
tory letter to employees telling them of the passage of the new
law, and explaining the implications for employees of the hos-
pital. It also explained that it would soon start holding meet-
ings with all employees within the hospital so that they could
vote on the question of whether or not to adopt a system which
called for a 12-hour shift, rather than 8-hour shifts. Indeed,
Respondent points out that most employees already worked 12-
hour shifts, and preferred to do so in order to have more time
off, i.e., 3 day “weekends.” Respondent argues that the alleged
wage decrease was not “real,” as it was merely an adjustment
so that employees would continue to receive the same wage on
a daily basis. It also points out that those employees who voted
against the 12-hour shift program were returned to 8-hour shifts
soon thereafter. When all the votes were counted Respondent
found that 80 percent of the employees voted in favor of its
plan for a 12-hour shift.
Finally, while Respondent concedes that on December 22,
1999, it did pass out forms and ask employees to acknowledge
the changeover to the new plan, when it learned that the RC
employees (as well as the RN and LVN employees of another
department), were refusing to sign the forms, it simply aban-
doned any efforts to secure such acknowledgements, since they
were unnecessary. Instead, it simply went ahead and imple-
mented the plan.
Turning back now to the facts of the “subcontracting,” on or
about December 23, 1999, through Suarez, Respondent first
contacted Theodore J. Weiner, the president and CEO of Total
Rehab Care (TRC). This contact led to negotiations which, in
turn, led to Respondent entering into a contract with TRC by
which, beginning on February 5, 2000, TRC took over the
management of the Respondent’s respiratory care department.
On January 5, 2000, the Union filed a petition for an election
among Respondent’s employees. On January 21, 2000, the
parties entered into a stipulation for an election to be conducted
by the Board on February 18, 2000. As a result, had the RC
department therapists remained employees of Respondent at the
time of the election they would have been eligible to vote.
While, of course, if they were no longer employed by Respon-
dent on the date of the election, they would not be entitled to
vote.
On February 1, 2000, Respondent conducted a meeting with
all the employees of the RC department, and informed them of
the upcoming subcontracting of their work, effective February
5, 2000. After that meeting, Ramirez and Uy introduced the
subcontractor’s president, Weiner, to the employees.2
2 The termination packages which Respondent prepared for each
employee initially stated that the cause of the changes was budgetary.
Upon learning of that fact, Hill immediately sent a correcting letter to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 892
Regarding the fact that Respondent insisted that the subcon-
tractor hire all its former RC department employees, Respon-
dent points out that it had no reason to believe that the employ-
ees were unskilled or unwilling to do the work properly, given
the correct management and supervision. It also points out that
such insistence is consistent with Respondent’s religious mis-
sion.
After the subcontracting took effect, the same employees
continued to do largely the same work in the same place where
they’d worked previously. Moreover, the same supervisors
(Asmundson, Hancock, and Suarez), were also hired by the
subcontractor.
However, the evidence is that Asmundson and Suarez had
their duties changed so that, while they remained supervisors,
they no longer worked in positions which called for the use of
“people skills,” or which called upon them to perform disci-
pline or exercise leadership.
The record contains unrefuted evidence that, due to reforms
instituted by Weiner, Respondent’s objective quality assurance
monitors reveal that since the subcontracting occurred the RC
department has dramatically improved in a variety of ways, and
that complaints from physicians about its operations have
ceased. Thus, Respondent views the subcontracting to have
been the needed cure for the problems previously experienced
in the department.
D. Discussion
It is clear that the governing law in this case is Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989. There, the Board announced the
following causation test in all cases alleging violations of
8(a)(3) or violations of Section 8(a)(1) turning on employer
motivation.

First, the General Counsel must make a prima facie
showing sufficient to support the inference that protected
conduct was a “motivating factor” in the employer’s deci-
sion.
Second, upon such a showing, the burden shifts to the
employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct.

The United States Supreme Court approved and adopted the
Board’s Wright Line test in NLRB v. Transportation Corp., 462
U.S. 393, 399–403 (1983).
Turning now to the specifics of this case, it is well estab-
lished that subcontracting such as the Respondent admittedly
engaged in here is violative of Section 8(a)(3) of the Act if it is
motivated by animus against (a) union or (other) protected acts.
See, e.g., Joy Recovery Tech. Corp., 320 NLRB 356, 365
(1995), enfd. 134 F.3d 1307 (1998); Pollution Control Indus-
tries of Indiana, 316 NLRB 455 (1995); Special Mine Services,
308 NLRB 711, 720 (1992), enfd. in relevant part denied in
part 11 F.3d 88 (7th Cir. 1993); Lear Siegler, Inc., 295 NLRB
857 (1989).

all employees, and offering a corrected letter of reference to any em-
ployee who requested one. No employee made such a request.
The General Counsel must establish unlawful motive or un-
ion animus as part of the prima facie case. Unless animus is
found to exist, the General Counsel’s case must fail. As such,
this case must perforce turn on whether the Respondent acted
with animus. If the unlawful purpose is not present or implied,
the employer’s conduct does not violate the Act. Abbey Island
Park Manor, 267 NLRB 163 (1983); Howard Johnson Co., 209
NLRB 1122 (1974). However, direct evidence of union animus
is not necessary to support a finding of discrimination. The
motive may be inferred from the totality of the circumstances
proved. Fluor Daniel, Inc., 311 NLRB 498 (1993); Associa-
cion Hospital del Maestro, 291 NLRB 198, 204 (1988).
The normal beginning point of an examination into whether
or not discrimination has been practiced by an employer is to
look at what action was taken, and its surrounding circum-
stances.
But, in this instance, that approach simply doesn’t work very
well. Here, neither the “events,” nor their surrounding circum-
stances say very little about discrimination.
This so because the “events” in question, i.e., the discharges
and subcontracting are not themselves unlawful, without more,
such as a failure to honor an obligation to bargain. They are
not inherently violative of the Act in and of themselves. Em-
ployers are generally free to make business judgments about
how to run their businesses, regardless of whether a union is in
the picture or not. Again speaking generally, an employer is
free to reach and implement decisions about how many em-
ployees to employ, and how to utilize them, and whether it
wishes to have certain tasks performed by its own employees or
to have them performed by the employees of another employer.
But, as shown above, an employer is not free to reach or im-
plement such decisions if it does so as part of a scheme to dis-
criminate against employees who have engaged in activities
which are protected by the Act, such as having given considera-
tion to the question of whether or not to secure union represen-
tation for themselves.
That is why the sole determination to be made in this case is
whether or not the evidence will support the conclusion that
when Respondent took the action of discharging the RC em-
ployees and subcontracting their work it did so with “animus,”
or the desire or intent to discriminate.
In deciding such a case, among the factors which a judge
normally examines first is the timing of the events which are
claimed as discriminatory. Here, there was but one event, the
discharges set out above and simultaneous subcontracting of
the work previously performed by those who were discharged.
Yet, as shown, while the Union began its campaign at Re-
spondent’s facility about 2 years previously, counsel for the
General Counsel relies upon the voluminous testimony of sev-
eral of her witnesses to evidence that the Union “stepped up” its
campaign activities in mid-1999 (still months and months prior
to the discharges and subcontracting), and to the fact that most
of the Union’s success in securing authorization cards from
employees occurred thereafter. None of this testimony was
denied or contradicted directly. Thus, having no reason to dis-
believe it, I credit all such testimony, and completely accept
counsel for the General Counsel’s asserted facts as true. From
ST. VINCENT MEDICAL CENTER 893
this, it is argued that the Respondent was aware of the Union’s
increased activities, and its increased success.
However, though I find those facts to be true, I do not find
them persuasive of the ultimate conclusion sought by counsel
for the General Counsel. In fact, based upon the evidence as a
whole, I am inclined to accept the viewpoint sought by Re-
spondent, i.e., that, so far as Respondent was concerned, the
Union had been nosing around the hospital ever since early
1998, and that, while Respondent sought to (and sometimes
succeeded), in learning some details about the Union’s activi-
ties, it simply wasn’t able to draw any hard and fast conclusions
concerning whether such details amounted to clear evidence of
heightened activity by the Union or its adherents among the
employee complement. I say this despite the General Coun-
sel’s clear evidence, which I credit, that Respondent could not
have failed to have identified the RC employees as the core of
the Union’s supporters among the hospital’s employees, and
that Respondent may well have deduced, and probably did
deduce, from such intelligence that the RC employees were the
most likely proselytes of the Union’s cause in other depart-
ments. Indeed, accepting counsel for the General Counsel’s
evidence, I must ask why Respondent didn’t make the change
in mid-1999, simultaneous with the Union stepping up its cam-
paign and with the gains in support were seen among the RC
department employees. If Respondent’s intent was to stop the
Union from gaining support among the employee complement
it seems far more likely that it would have taken action before,
not after, the employees in the RC department began to succeed
in gaining support for their cause among their fellow employees
of Respondent in other departments. But, instead, as it had
done for years, Respondent simply continued to allow the prob-
lems in the RC department to drift aimlessly.
What is most persuasive to me on this point is that the evi-
dence is simply insufficient in my opinion to demonstrate a
pattern of activity. Certainly Respondent knew of the Union’s
activities. Respondent admittedly made a studied effort to keep
track of them, even going so far as to instruct supervisors to
report any such activities they learned of. But a careful reading
of the record reveals nothing more than various and sundry,
seemingly isolated events concerning the level of union activity
which can be shown to have been learned of by Respondent. In
my opinion, the record does not sufficiently show the peaks and
valleys of union activity. As a result, the “timing” of the dis-
charges and subcontracting, occurring when they did, seems no
more suspicious to me than it would have been had they oc-
curred in early 1998, or in mid-1999, for examples.
Thus, I find and conclude that while the evidence is clear
that Respondent had ample knowledge of the union activities
and sympathies is insufficient to conclude that the “timing” of
the Union’s activities here preponderates in favor of the result
desired by counsel for the General Counsel.
However, when looking at the timing between the filing of
the election petition and the subcontracting action taken by
Respondent a different result follows. From Respondent’s
standpoint the timing of the action could scarcely be imagined
as worse. Announcing the change in the status of the employ-
ees, and subcontracting out their work, only about 3 weeks after
the filing of the petition for an election seems on its face so
suspicious that if there were any evidence of animus or direct
intent to discriminate that one would not hesitate to find the
subcontracting to have been violative of the Act, as discussed
below.
Next, a judge often looks at whether or not an employer has
committed other violations of a similar nature in the past, or
whether other violations of the Act have occurred around the
time of the events in question.
Here, contrary to General Counsel’s position, I note that Re-
spondent has never before had a charge filed against it, much
less been found to have violated the Act, as might warrant an
inference that it has a proclivity to violate the Act. Moreover,
there are absolutely no independent violations of Section
8(a)(1) of the Act either alleged or proven to have occurred in
this case.
The absence of such evidence is a relevant factor to be con-
sidered by me in making my determination as to whether or not
Respondent intended to discriminate when it reached and im-
plemented its decision to contract out the work of the RC de-
partment.
Thus, I find and conclude that here there is nothing in the
Respondent’s labor relations history to even suggest that the
events of this case should be viewed with suspicion.
Another persuasive factor which is normally examined is
whether or not Respondent has acted here consistently with its
past practices. Here, the only evidence on the point is the tes-
timony that Respondent had previously subcontracted the work
of entire departments in the past, in instances where the record
is entirely silent on the question of whether or not there was
any contemporaneous union activity. I have no reason at all to
disbelieve that testimony.
Thus, on this record, there is nothing to base a finding that
Respondent has belied its stated business purpose in subcon-
tracting the work by virtue of deviating from an established
practice.
Of course, among the strongest indicators of an intent to dis-
criminate is where there is evidence that an employer has
treated (an) employee(s) disparately from the way in which it
treats others. For example, where a group of employees has
been demonstrated to have an interest in the cause of unionism,
and soon thereafter an employer begins to enforce work rules
against members of that group in a more stringent fashion than
it has enforced them in the past, or more stringently than it
enforces them against employees not shown to have an interest
in unionism, a strong and clear inference is warranted that the
employer harbors a desire and intent to discriminate.
But, here again, the record is entirely lacking any such evi-
dence. Thus, on this issue the record is equally unhelpful to the
General Counsel’s point of view.
Indeed, none of these points is even argued by counsel for
the General Counsel.
Thus, at this point, counsel for the General Counsel’s cause,
must be seen as hanging from but two slender threads.
First, counsel for the General Counsel agues that animus is
shown by virtue of (failure to sign the forms to change hours).
Second, the changes, with the same employees, performing
the same work, under the same supervision, upon the same
sorts of patients.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894
After careful consideration, I find and conclude that neither
is sufficient to constitute a prima facie case for the General
Counsel.
Counsel for the General Counsel argues in her brief that the
activities of the employees in the RC department at Respon-
dent’s facility in voting upon, and later refusing to return the
questionnaire distributed by Respondent, constitute concerted,
protected, or union activities.
While I find that the evidence in the case supports that argu-
ment, I further find that the evidence will not support a conclu-
sion that such action was taken in response to any illegal activ-
ity on the part of Respondent, or that any action was taken
against any employee in reprisal for their having refused to
return the questionnaire.
As stated above, there is no argument advanced by the Gen-
eral Counsel that the changes made in the employees’ schedules
were not made pursuant to the requirements of a newly enacted
law, or were otherwise illegal. I conclude further that there is
no evidence to support a finding that such changes were made
as part of some plan by Respondent to exact reprisals from
employees on account of their union sympathies and activities.
Thus, the facts that Respondent no doubt had fairly intimate
knowledge of such activities, and the identities of those engag-
ing in them, is of no moment here. Having such knowledge is
not itself illegal, and it becomes illegal only if such knowledge
is gained in an illegal fashion (e.g., by surveillance or interroga-
tion), or is used as a basis for later reprisal against those em-
ployees who are union adherents or activists.
In my opinion counsel for the General Counsel’s strongest
and most persuasive argument rests not upon any direct, or
even circumstantial, evidence produced by her regarding Re-
spondent’s intent in reaching and implementing its decision to
subcontract. Rather, it is that on the surface, Respondent’s
reasons for proceeding as it did seem to lack plausibility, and
that the subcontracting followed so closely upon the heels of
the filing of the petition for a union election. The Board has
pointed out time and again that mere timing is not enough to
establish liability. See, for example, Royal Coach Sprinklers,
Inc., 268 NLRB 1019, 1028 (1984). Thus, while not disposi-
tive, clearly here the proximity in time between the filing of the
petition herein and the act of subcontracting is sufficient to
satisfy that element of the case in favor of the General Counsel.
I so find and conclude.
The argument that Respondent’s decision to subcontract is
utterly lacking in a good basis, or sound business justification,
has a certain visceral appeal. Counsel for the General Counsel
seeks redress for the effective disenfranchisement of the em-
ployees within Respondent’s employee complement who most
strongly supported the cause of unionism right up until the
filing of the petition herein. And, the argument also has a cer-
tain amount of reason to support it, based not only upon its
timing, but also upon the seeming lack of a clear rationale for
the way in which it was carried out.
After all, this was not the first time that Respondent had
found fault with the operations of the RC department. Indeed,
from the General Counsel’s viewpoint, Respondent had already
gone to the trouble of changing the supervision of that depart-
ment, the previous year, and that hadn’t improved the state of
affairs. Nor did Respondent seem to be in any great hurry to
obtain improved results in the department in mid-1999 when
the issue was raised again and the difficulties with its new su-
pervision had become apparent. Instead, the problem was sim-
ply allowed to drift on for months. The General Counsel’s
argument continues, why should the remedy adopted by Re-
spondent so conveniently close upon the heels of the filing of
the petition be viewed as having any greater chance of success?
Especially when it is recalled that the very same employees
would be performing the very same duties, and that the very
same supervisors would be still present?
As my comments at trial clearly indicated, that (i.e., the Re-
spondent’s asserted belief that a change in the leadership of the
department could result in the desired improvement), is almost
too much to believe. On its surface it appears to be a fabrica-
tion, and not a very good one at that.
The Board clearly states that judges are not free to substitute
their own reason for that of employers as to how to run the
employers’ businesses. However, if an employer asserts a lame
and unconvincing reason for its actions, a reason which is so
lacking in plausibility that it simply flies in the face of all rea-
son and plausibility, then a judge may infer that the asserted
reason is false, and but a subterfuge, designed to conceal the
true reason for the employer’s actions. And, if this be true, then
the further inference may be warranted that the true reason is
one which the employer desires to conceal because it is an ille-
gal reason, such as the intent to discriminate. Golden Day
Schools, Inc. v. NLRB, 644 F.2d 834, 838 (1981); McCain
Foods, Inc., 236 NLRB 447, 452–453 (1978); Colorflo Decora-
tor Products, 228 NLRB 408, 418 (1977). Cf. Limestone Ap-
parel Corp., 255 NLRB 722 (1981), enfd. per curiam (1982).
Such findings, of course, are sufficient to satisfy the require-
ment that animus be found to support allegations of discrimina-
tion.
However, upon considering Respondent’s asserted reasons
in further detail, their implausibility and falsity seem much less
apparent or clearly established.
While I accept and believe all of the testimony of counsel for
the General Counsel’s witnesses to the effect that they are still
performing the same work in the same fashion as they did prior
to the subcontracting, I must note that individual employees
have not been shown to have the same sort of access to the
insights and intricacies of production (including complaints
regarding the department’s performance and adherence to stan-
dardized measures of productivity), as that which is possessed
by management members. Thus, even while I believe the tes-
timony of counsel for the General Counsel’s witnesses, I have
no warrant to ignore or disbelieve the testimony of Respondent’s
witnesses to the effect that since the subcontracting the problems
have largely vanished, and that the complaints from medical staff
have ceased altogether. The testimony of Respondent’s witnesses
on these points was apparently credible, and is entirely unrebutted.
Thus, no matter how improbable Respondent’s action, or its
timing, in subcontracting may seem held for success on the
surface, there is no reasonable basis on this record which I per-
ceive as enabling or causing me to doubt or challenge the very
fact of its success in, at long last, remedying the RC depart-
ment’s longstanding, seemingly intractable, problems.
ST. VINCENT MEDICAL CENTER 895
In viewing this result, I bear in mind that there have been
historically numerous instances in which employers have made
changes in the leadership of their operations, while leaving all
other important factors unchanged. Corporations routinely
replace one CEO with another. Sports teams routinely replace
one manager or coach with another. And Abraham Lincoln
was not the first or last national leader to demand or expect
improved results from his army when he replaced General
McClellan with General Grant. In other words, while it may
not seem logical, it is a method which is often used, and it
sometimes works.
In other words, no matter how improbably I may view Re-
spondent’s prospects for success merely because it sought im-
proved performance by simply changing the leadership of em-
ployees, I find myself unable to find or conclude that it is not a
time honored and frequently used solution to management
problems. It clearly is a method which has been, and is, fre-
quently criticized as a management tool. But, it cannot be ar-
gued that it is not repeatedly utilized. As such, I must, no mat-
ter how reluctantly, find that it passes muster.
Had I been in charge of Respondent’s operations perhaps I
would have utilized a different method, and perhaps I would
have done so sooner. But, I cannot find that my method would
necessarily have been so clearly superior to the one adopted by
Respondent that I should, or can, find that Respondent’s
method should be found to be false on its face.
Thus, I find myself unable to conclude that I may, or should,
infer that Respondent’s asserted reason for the subcontracting,
occurring when and how it did, bespeaks falsity, and leads to
the further inference that it constitutes a showing of animus.
As a result, I am compelled to find and conclude that the
General Counsel has not satisfied the requirement of demon-
strating animus on the part of Respondent,3 and that this ab-

3 While the General Counsel presented some evidence that Hancock
made a remark that an employee named Moore hadn’t been helped by
the fact that his face had recently been portrayed on a leaflet of the
sence must perforce, in turn, lead to a finding, which I hereby
make, that counsel for the General Counsel has failed to estab-
lish a prima facie case of discriminatory intent.
Summarizing, I find and conclude that counsel for the Gen-
eral Counsel has failed to establish a prima facie case by the
preponderance of the credible evidence in any respect alleged.
Accordingly, the complaint shall be dismissed in its entirety.
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 is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has not violated the Act as alleged.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
IT IS ORDERED that the complaint be, and it is, dismissed in its
entirety.

Union, I credit Hancock’s strong denial that he never made the remark
ascribed to him, or any similar remark.
4 All outstanding motions, if any, inconsistent with this recom-
mended Order are hereby denied. In the event no exceptions are filed
as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections
thereto shall be deemed waived for all purposes.