Sunnyvale Medical Clinic, Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1985

277 N.L.R.B. 1217 (N.L.R.B. 1985)

- SUNNY-VALE MEDICAL CLINIC,
Sunnyvale Medical Clinic, Inc. and Engineers and
Scientists of California, Marine Engineers, Ben
eficial Association, ;AFL-CIO. Cases 32-CA-
4840, 32-CA-4985, 32-CA-5117, and 32-CA-
5305
23 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND`JOHANSEN
On 11 June 1984 Administrative Law Judge Jay
R. Pollack issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
the General Counsel filed ' cross-exceptions and a
brief in support thereof, and Respondent filed a
brief in response to the General Counsel's cross-ex-
ceptions and brief.
The National Labor Relations Board has delegat-
ed its, authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the, judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
The judge found, inter aha, that Respondent's
personnel director' Sandra Easterly, did not unlaw-
fully interrogate employee Tracie Rothweiler. For
the reasons set, forth below, we affirm the judge's
finding.
Rothweiler and fellow employee Pam Gardner
went on their own initiative to Easterly's office to
take care of unrelated' individual personnel matters.
When Gardner finished the discussion of her
matter with -Easterly, Rothweiler gave Easterly a
completed union dues-deduction authorization
card. As Gardner and Rothweiler were leaving
Easterly's office, Easterly asked Rothweiler to
remain. Gardner left, and Easterly closed the office
door.
Easterly asked Rothweiler why she had joined
the Union. Rothweiler replied that she felt that the
employees needed help.,' Easterly asked Rothweiler
if it was anything personal' against Easterly. Roth-
weiler replied that it was not. Easterly explained to
Rothweiler that the,Employer wanted the Union
out of^ the clinic. Easterly told Rothweiler that just
because she had joined the Union did not mean
that the employees would necessarily get what
they wanted. Easterly asked Rothweiler why the
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of'all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
1217
employees had not gone to tier (astei ly). Roth-
'replied that they had, and that nothing was
being done. The conversation theii ended.
Rothweiler characterized, "her `conversation with fa.
Easterly as "friei;zdly". and "casual and her • rela,
tionship with Easterly as "friendly."
In dismissing the allegation,-in -this regard,' the .
judge,applied the longstanding test, recently reiter-
ated- in Rossmore House,2 for evaluating whether"
interrogations violate the Act: ` whether under all,
the circumstances the interrogation 'reasonably
tends to restrain, coerce, or interfere with rights
guaranteed by the Act.3 We agree with the judge's
analysis, even though Rothweiler, unlike the ques-
tioned employee in Rossmore House, is -not an open
and active union supporter.
The specific purpose of the Board's` decision in
Rossmore House was to reject the per se approach
to the interrogation of open and active union sup-
porters about their union' sympathies. Thus, the
Board expressly overruled a particular line of cases
"to the extent they [found] that an employer's
questioning open and active union supporters about
their union sentiments, in the absence of threats or
promises', necessarily [violates the Act]."4
However, an important additional purpose of the
Board's decision in Rossmore, House was to signal
disapproval of a per se approach to allegedly un-
lawful interrogations in general, and to return to a
case-by-case analysis which takes into account the
circumstances surrounding an alleged` interrogation
and does not ignore the ''reality of the workplace.
In this regard, Blue Flash, supra, the Board case
relied on in Rossmore House in rejecting a per se
approach to interrogation in ' general, did not in-
volve the interrogation of open and active union
supporters. Instead, `unit members, whose sympa-
thies were unknown to the employer, were individ-
ually questioned by the employer in an attempt to
evaluate the union's claim of majority status. In set-
ting forth the totality of circumstances test, the
Board stated:
The rule which we adopt will require the
Trial, Examiners and the Board to carefully
weigh and evaluate the evidence in such case
[sic],' but that is what we believe the statute re-
quires us to do. The only alternatives, both of
which we reject, are either to find all interro-
gation per se unlawful, or to find that interro-
2 269 NLRB 1176 (1984), affd 760 F 2d 1006 (9tb Cir 1985).
3 Blue Flash Express, 109 NLRB 591 (1954), cited in Rossmore House,
269 NLRB at 1177, 1178 fn 20 Thus, contrary to the judge 's remark in
the final paragraph' of sec II , C,l of his decision , the "total context"
guidelines he applied were not established in Rossniore House, but were
established as long ago as 1954, in Blue Flash
4 269 NLRB at 1177-1178
277 NLRB No. 131
1218 DECISIONS OF -NATIONAL LABOR RELAT IONS BOARD
gation under all circumstances is permissible
under the statute.5
The rule of Blue Flash, with its rejection of per
se alternatives, is the central underlying--rationale
of the Rossmore House decision. For this reason,
we find the judge properly applied the totality of
circumstances test- to the alleged unlawful interro-
gation of employee Rothweiler, even though she
was not an open and active union adherent. We
further find that he correctly concluded that no
violation of the Act occurred.
The Board in Rossmore House outlined some
areas of inquiry that may be considered in applying
the Blue Flash test, .stressing that these and other
relevant factors were not to be mechanically ap-
plied in each case. Thus, the Board mentioned the
background, the nature of information sought, the
identity of the questioner, and the place and
method of interrogation. Applying the Blue Flash
test here, we find, as did the judge, that the cir-
cumstances surrounding Easterly's questioning of
Rothweiler are devoid of the elements of coercion
necessary for finding a violation.
First,' although Rothweiler was not an open and
active union supporter, she also was not an em-
ployee especially intent on keeping her support for
the Union hidden from the Respondent. In this
regard, Rothweiler's decision to authorize the de-
duction, of. union dues and her presentation of her
authorization card directly to Easterly (when ac-
cording to Easterly such cards were normally pre-
sented through the Union) imply Rothweiler's will-
ingness to make the Respondent aware of her sup-
port for the, Union. While, we do not place undue
weight on this factor, we nevertheless find it is rel-
evant in evaluating the full context of the question-
ing at issue here. Second, there is no history of em-
ployer hostility towards or discrimination against
union supporters. While Easterly told Rothweiler
that Respondent wanted the Union "out of the
clinic," there is no showing that the Respondent
took or threatened any adverse action against em-
ployees in futherance of its desire to operate with-
out the Union. Third, the nature of the questions
was general and nonthreatening: why Rothweiler
joined the Union, whether she did so because of
anything personal against Easterly, and why the
employees had not come directly to Easterly. As
the judge points out, it did 'not reasonably` appear
from the nature of these . questions that Easterly
was seeking to obtain information from Rothweiler
on which she might' in turn take adverse action
against employees. Fourth, Easterly and Roth-
weiler had a friendly relationship, and their conver-
5 109 NLRB at 594.
sation in question was casual and amicable. Taking
all, these factors into consideration, we find that the
conversation between - Rothweiler and Easterly is
one instance of lawful, casual questioning which,
under the circumstances, might be expected to
occur between supervisors and employees who
work closely together. Accordingly, we affirm the
judge's dismissal of this allegation.
ORDER-
The National Labor Relations Board adopts the
recommended Order of the' administrative law
judge and orders that the Respondent, Sunnyvale
Medical Clinic, Inc., Sunnyvale, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
MEMBER DENNIS, dissenting in part.
Contrary to my colleagues and the judge, I find
that the Respondent violated Section 8(a)(1) of the
Act by interrogating employee Tracie Rothweiler.
The facts are straightforward. In early July
1982,1 a decertification petition was filed in one of
two separate units. In September, another decertifi-
cation petition was filed, covering the other unit.
In early November, the Respondent withdrew rec-
ognition from the Union in both units. The'instant
unfair labor practice charges, however, precluded
processing of the !decertification petitions.
In July, Rothweiler submitted a dues-checkoff
authorization' card to Personnel Director Sandra
Easterly in her office. Easterly asked why Roth-
weiler wanted the Union2 and whether it was
"anything personal" against Easterly. Rothweiler
replied that it was not. Easterly then told Roth-
weiler that the Respondent wanted the': Union
"out" and that just ' because Rothweiler had joined
the Union did not mean that she would get what
whe wanted. Finally, Easterly asked Rothweiler
why the employees had not come to Easterly
before turning to the Union.
In finding that Easterly's interrogation of Roth-
weiler did not violate Section 8(a)(1), rhy col-
leagues stray from the principles established in
Rossmore House,' 269 14LRB 1176 (1984), affd. 760
F.2d 1006 (9th Cir. 1985). My colleagues 'purport
to apply the longstanding test, 3 reconfirmed in
Rossmore House, of "whether under all of the cir-
cumstances the interrogation reasonably' tends to
restrain, coerce,' or interfere with rights guaranteed
by the Act." In professing to apply the test, how-
' All dates, are 1982
2 Although the judge fully credited Rothweiler's account of the inter-
rogation he inexplicably failed to report this aspect of Rothweiler's testi-
mony.
a See Blue Flash Express, 109 NLRB 591 (1954)
SUNNYVALE MEDICAL CLINIC
ever, they de-emphasize the principal "circum-
stance" addressed in Rossmore House-whether the
employee questioned is a self-proclaimed union ad-
herent-and rely instead on lesser, or secondary,
criteria.
In footnote 20 of Rossmore House,4 the Board
majority responded to dissenting Member Zimmer-
man's assertion that we had adopted a per se rule
permitting the questioning of open and active union
adherents as a matter of course. We stated that we
had not created a new per se rule, but would
"weigh the setting and nature of interrogations in-
volving open and active union supporters."5 We
went on, by way of exannple, to identify the fol-
lowing four criteria as relevant: (1) the back-
ground; (2) the nature of the information sought;
(3) the identity of the questioner; and (4) the place
and method of interrogation.
Certainly the four criteria mentioned in footnote
20 and any other relevant factors may be consid-
ered in cases not involving open union adherents,
as an aid to ultimately determining "whether under
all circumstances the interrogation reasonably tends
to restrain, coerce, or interfere with rights guaran-
teed by the Act."6 But it is clear from the context
in which they appear in Rossmore House that these
criteria remain secondary to the question of self-
proclaimed union adherence. They are to be con-
sidered only after the primary Rossmore House
factor is given due weight.
Ordinarily, an employer's questioning an employ-
ee who is not a self-proclaimed union adherent does
"tend to restrain, coerce, or interfere" with statuto-
ry rights. Because the employee has not chosen
voluntarily to disclose his union activities or be-
liefs, the employer's prying into this sensitive sub-
ject necessarily chills the employee's freedom of
action. It should be the exceptional case, not the
routine one, in which, based on secondary criteria
alone, an employee who has not volunteered his
} 269 NLRB 1176, 1178 in 20
Emphasis added.
My colleagues correctly observe that the Board cited Blue Flash Ex-
press, 109 NLRB 591 (1954), in Rossmore House for the general principle
that an "all-of-the-circumstances" test is appropriate, but improperly rely
on the particular facts of that case as justifying the interrogation of em-
ployees who are not open and active union supporters.
The employer in Blue Flash, after receiving a demand for recognition,
conducted a poll of its employees to determine whether a majority sup-
ported the union The employer informed the employees the poll's pur-
pose was to permit a response to the demand and gave them assurances
against reprisal This purpose was wholly legitimate because, in 1954, the
Board, under Joy Silk Mills, 85 NLRB 1263 (1949), enfd 185 F 2d 732
(D C Car 1950), permitted an employer to reject a union demand for
bargaining based on authorization cards only if the employer had a "good
faith doubt" of the union's majority status Subsequently, the Board aban
doned the Joy Silk doctrine See NLRB v. Gissel Packing Co, 395 U S
575, 594 (1969)
in the instant case, by contrast, no legitimate purpose existed for Eas-
terly's questioning, and no assurances against reprisal were extended to
Rothweiler
1219
views may be questioned about his union activities
or beliefs.
In the instant case the judge found-and my col-
leagues do not dispute-that Rothweiler was not a
self-proclaimed union adherent. 7 Because Roth-
weiler was not a self-proclaimed union adherent,
the employer's questioning her was inherently co-
ercive absent some unusual additional circum-
stances.
Turning to the circumstances my colleagues ad-
dress, they misapply the secondary criteria as well.
My colleagues find no history of employer hostility
against union supporters, despite Easterly's an-
nouncement to Rothweiler in the very conversa-
tion in question that the Respondent wanted the
Union "out." The judge and my colleagues dismiss
as "general and nonthreatening" Easterly's bluntly
questioning Rothweiler about why she wanted the
Union. I am not persuaded by my colleagues' reli-
ance on the judge's finding that Easterly and Roth-
weiler were on a friendly basis and the discussion
was quite informal. Whatever friendliness and in-
formality attended the incident only added subtle
pressure to Easterly's coercive questioning, because
Easterly suggested that Rothweiler's activities
might be a personal affront and queried why the
employees had not come to her before turning to
the Union. Nor can my colleagues and the judge
effectively minimize the facts that Easterly was the
Respondent's personnel director, a significant posi-
tion within management vis-a-vis employees, and
that the questioning occurred in Easterly's office.
Although Rothweiler entered Easterly's office with
another employee, Easterly waited until that em-
ployee left, closed the door, and then asked Roth-
weiler why she wanted the Union. Easterly then
told her that the Respondent wanted the Union
"out."
Under the instant circumstances, I find Easterly's
questioning Rothweiler coercive and in violation of
Section 8(a)(1) of the Act.
7 Merely turning in a dues-checkoff authorization was not enough to
make Rothweiler an open and active union adherent within the meaning
of Rossmore House Any union supporter desiring dues checkoff would
necessarily have to make that fact known to the employer.
Ariel Sotolongo , Esq., for the General Counsel.
Randolph C. Roeder, Esq. (Littler, Mendelson, Fastiff &
Tichy), of San Francisco , California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard
these cases in trial at Oakland, California, on April 9,
1984. The cases arose as follows: On September 3, 1982,
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineers and Scientists of California, Marine Engineers
Beneficial Association, AFL-CIO (the Union) filed a
charge in Case 32-CA-4840 against Sunnyvale Medical
Clinic, Inc (Respondent). The original charge in Case
32-CA-4985 was filed by the Union on October 29 and
was' amended on November 29, 1982. The charge in Case
32-CA-5117 was filed by the Union on December 21,
1982. On, March 3, 1983, the Union filed the charge in
Case 32-CA-5305 On November 30, 1982, the Regional
Director for Region 32 of the National Labor Relations
Board issued a complaint and notice of hearing in Case
32-CA-4840 alleging that Respondent engaged in certain
unfair labor practices. On March 28, 1983, the Regional
Director issued an order consolidating cases and consoli-
dated complaint and notice of hearing in all four cases,
alleging, in substance, that Respondent engaged in cer-
tain violations of Section 8(a)(1), (3), and (4) of the Na-
tional Labor Relations Act (the Act).
At the hearing, the complaint was amended to with-
draw the allegations of 8(a)(3) and (4) conduct based on
a settlement agreement. Further, certain allegations of
8(a)(1) conduct were withdrawn at trial. The principal
questions presented for decision are:
1. Whether Respondent violated Section 8(a)(1) of the
Act by interrogating employee Tracie Rothweiler about
her union activities.
2. Whether Respondent violated Section 8(a)(1) of the
Act by telling employee Sandra Steiner that she would
not be given a raise because of the Union's conduct.
3. Whether Respondent violated Section 8(a)(1) of the
Act by conducting a meeting in which it allegedly solic-
ited grievances and promised to remedy such grievances.
4 Whether Respondent violated Section 8(a)(1) of the
Act through Jan Gazenbeek, assistant administrator, by
interrogating employee Janet Reumann and by telling
Reumann that he was disappointed in her for having
filed charges with the Board.
5. Whether Respondent violated Section 8(a)(1) of the
Act by telling employees that Respondent had not grant-
ed raises because of the Union's conduct.
All parties have been afforded full opportunity to par-
ticipate, to introduce relevant evidence, to examine and
cross-examine witnesses, and to file briefs. Based on the
entire record,' on the briefs filed on behalf of the parties,
and on my observation of the demeanor of the witnesses,
I make the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent, a California corporation with an office
and place of business in Sunnyvale, California, has been
engaged in the operation of a health care institution
which provides outpatient medical services. During the
12 months prior to issue of the consolidated complaint,
Respondent derived gross revenues in excess of $250,000
and purchased and received goods valued in excess of
$5000 which originated outside the State of California.
1 On May 10, 1984, the General Counsel filed a motion to correct tran-
script As the motion is unopposed, the corrections contained therein are
incorporated, sua sponte, into the record as JD Exh I
Accordingly, it admits and I find Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
The Union has been the exclusive collective-bargaining
representative of two separate bargaining units of Re-
spondent's employees The last collective-bargaining
agreement for each of the units expired about June 30,
1982. Accordingly, Respondent admits and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The instant dispute arose during negotiations between
Respondent and the Union for agreements to succeed
their 1979-1982 agreements. The two units represented
by the Union were- the administrative unit (approximate-
ly 54 employees) and the medical technologists unit (ap-
proximately 15 employees). The contract for each unit
expired on June 30, 1982 During negotiations for suc-
ceeding contracts, on July 6 or 7, a decertification peti-
tion was filed in Case 32-RD-400, There was some con-
fusion as to whether the decertification petition applied
to both units or only the administrative unit. Respondent
was notified by an agent of the Regional Director that
the petition applied only to the administrative unit.
Thereafter, in September 1982, a petition was filed in the
medical technologists unit. In early November 1982, the
Respondent withdrew recognition from the Union as the
exclusive bargaining representative in both `units. The
Union filed unfair labor practice charges in Case 32-CA-
4840 alleging, inter alia, a refusal to bargain. That aspect
of the charge was dismissed by the Regional Director
prior to November 30, 1982. However, both representa-
tion petitions were "blocked" by the instant unfair labor
practice charges.2 The instant case concerns allegations
of unlawful statements of Respondent during the penden-
cy of the petitions and the blocking charges.
B. The Facts
Janet Reumann,3 a former employee of Respondent,
testified that in late November 1982, she had a conversa-
tion with Jan Gazenbeek, Respondent's assistant adminis-
trator. According to Reumann, Gazenbeek said ,that he
was "very disappointed" that Reumann had filed a
charge against him. Reumann answered that she had not
filed a charge against Gazenbeek but rather had dis-
cussed the matter with the Union and the Union had
filed the charge. Gazenbeek again said he was disap-
pointed that Reumann had filed a charge.
2 The Board has a, policy of not proceeding in a representation case
where charges of unfair labor practices affecting some or all of the same
employees are concurrently pending Under this policy, representation
cases are treated as blocked until disposition of the unfair labor practice
charges
2 The consolidated complaint alleges that Respondent discharged Reu-
mann in violation of Sec 8(a)(4), (3), and (1) of the Act The allegations
pertaining to Reumann's discharge were withdrawn at the opening of the
hearing based on a settlement agreement
SUNNYVALE MEDICAL CLINIC
Reumann had in fact not filed a charge against Re-
spondent. Rather, the charge in Case 32-CA-4985 filed
on November 29, 1982, by the Union contained, inter
aha, the following allegation:
A Union Steward! was harassed and harangued
during working hours at her desk by Dorothy
Cahill and others within hearing of the Assistant
Administrator. When she complained to him and re-
quested he instruct them not to hassle her during
work time, he declined to speak to them and said it
was none of his business.
Reumann was a union steward and had in late October
or early November complained to Gazenbeek that she
was being harassed by fellow employees concerning
union affairs. Gazenbeek told Reumann that he would
not interfere in this personal matter. In this proceeding,
Gazenbeek was not called to testify and Reumann 's testi-
mony, regarding their conversations, stands uncontra-
dicted in the record.
Reumann further testified that Joseph Ringrose, Re-
spondent 's administrator, held a meeting with employees
in December 1982. According to Reumann, Ringrose
stated that as far as he was concerned the Union no
longer existed and that employees would receive a salary
increase, retroactive to July 1, 1982, Ringrose explained
that he could not have given the raises earlier because
the Union had filed false charges to stall the proceedings
and, thereby, delayed any changes in working condi-
tions. Ringrose further stated that business office employ-
ees would be included in the pension plan in the future.
Ringrose testified that he had three separate meetings
with employees in December 1982. Ringrose told the
employees that salary increases would be given retroac-
tive to July 1, 1982. In answer to a question as to why
the raises were not given earlier, Ringrose stated that he
had been informed by the Board's Regional Office that
he could not change wages, hours or working conditions
while the cases were pending. It was not until the Re-
gional Director determined to dismiss the refusal-to-bar-
gain charges that Ringrose felt free to grant the wage in-
creases. Ringrose denied stating that the Union had been
stalling by filing false charges.
I found both Reumann and Ringrose to be credible
witnesses. However, Ringrose prepared the short speech
and then delivered it to the three groups of employees.
Reumann on the other hand just heard this speech with-
out any prior notice. Under such circumstances, I am in-
clined to believe that Ringrose's recollection of this
meeting was more accurate than that of Reumann.
Tracie Rothweiler, a former medical records clerk for
Respondent, testified that in July 1982, she presented a
union dues-deduction card to Sandra Easterly, Respond-
ent's personnel director. According to Rothweiler, Eas-
terly asked "if it was anything personal" against her
(Easterly). Rothweiler answered that it was not. Easterly
said that Respondent wanted the Union "out" and that
just because Easterly had joined the Union did not, nec-
essarily, mean that she (Rothweiler) would get what she
wanted. Easterly asked why the employees had not first
come to her and Rothweiler answered that the employ-
1221
ees had done so but "nothing is being done." During this
conversation, Rothweiler raised the subject of disputes
between employees supporting the Union and employees
who were against the Union. Easterly explained that de-
certification petitions had been filed and that certain em-
ployees no longer wished to be represented by the
Union. Easterly further explained that while the decerti-
fication petitions were pending, no negotiations were
taking place between Respondent and the Union.
Easterly testified that when Rothweiler presented her
with the dues-deduction authorization form, Rothweiler
volunteered that the matter was not Easterly's fault and
that Rothweiler "had nothing against" Easterly. Easterly
and Rothweiler discussed the fact that, Respondent had
lost a supervisor in Rothweiler's department and Re-
spondent was experiencing some difficulty in finding the
right replacement. According to Easterly, Rothweiler
asked why some employees liked the Union and other
employees disliked the Union. Easterly answered that
she could not discuss "who the good guys or bad guys
were." Easterly said that some employees dissatisfied
with the Union had filed decertification petitions and
that negotiations had been suspended while the Board
processed the petitions. Easterly further explained that
Respondent could not grant wage increases, while the pe-
titions were pending. Easterly denied asking Rothweiler
any questions about her union sympathies or activities
and further denied stating that Respondent wanted the
Union out.
At the time of the above conversation, Rothweiler a d
Easterly were on friendly terms. Easterly had ever
before received a dues-deduction form directly rom an
employee. Easterly took the form to Ringrose who di-
rected that Easterly return the form to Rothweiler so
that it could be submitted to the Union in accordance
with the usual procedures. Easterly immediately returned
the form to Rothweiler and told the employee "to go
through procedures."
Rothweiler impressed me as a candid and forthright
witness. Easterly, on the other hand, appeared more in-
terested in denying wrongdoing than testifying as to
actual events. For these reasons I credit Rothweiler's
version of their conversations,
Sandra Steiner, a former employee of Respondent, tes-
tified that in September 1982 she approached Easterly
and asked if Steiner could take over the duties of patient
registration. Steiner was, at that time, a part-time assist-
ant cashier. Easterly told Steiner that the employee
would be assigned the additional duties but would not re-
ceive an increase in wages. According to Steiner, Easter-
ly said that "the Union would not let" Respondent grant
raises. Two weeks earlier Steiner had asked for a raise
and was told that "the Union wouldn't let [Respondent]
give any kind of raises until everything was settled."4
After working in patient registration for 2 to 4 weeks,
Steiner was reclassified as a receptionist and cashier and
granted a raise in wages.
4 Steiner admitted that on one occasion she approached Easterly and
asked if there was anything the employees could do to "speed" the reso-
lution of "the Union dispute "
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Easterly testified that after filling in as a receptionist
on a trial basis , in August, Steiner requested that she be
given that job. On August 23, Steiner became a full-time
employee and was given the job of receptionist. Howev-
er, in November, Steiner approached Easterly and asked
for a wage increase . Easterly said that "no increases
were taking place." Steiner then requested to work part
time so that she could also work another job and thereby
increase her income. Easterly answered that Steiner's job
had become full time and that Respondent did not have a
part-time position for Steiner. Easterly denied that she
ever said anything to the effect that nothing could be
done for Steiner because the Union had filed charges.
While Steiner seemed confused as to dates and the se-
quence of events, I am convinced that she had a good
recollection as to the substance of her conversations with
Easterly, particularly concerning the reason why she
could not receive a raise. Easterly on the other hand
seemed more intent on denying any wrongdoing than in
relating the substance of the conversations I, therefore,
credit Steiner 's version of the substance of these conver-
sations.
In November 1982, Barbara Pedersen, Respondent's
business office manager, held a luncheon meeting for
business office employees. Respondent provided food
and beverages at this meeting. Respondent normally held
weekly meetings in the business office and its providing
of lunch was not unusual . Prior to the meeting Pedersen
distributed a short handwritten memorandum to employ-
ees which stated:
What is something new and good that you would
like to see happen in the B .O. [business office]??
.Clinic??
The employees were asked to respond on this memo-
randum but not to sign the paper. All the employees re-
sponded and the answers were read at the meeting. The
issue of personality conflicts between employees support-
ing the Union and those supporting decertification was
raised during the meeting by some employees. However,
Pedersen made no comment regarding that issue or about
the Union in any other respect. The record does not
reveal what discussion actually took place at the meet-
ing.
C. Preliminary Conclusions
1. The alleged interrogation of Rothweiler
As discussed above, when Rothweiler presented her
dues-deduction form to Easterly, Easterly asked whether
it was anything personal against her. Further, Easterly
stated that Respondent wanted the Union "out" and that
Rothweiler would not necessarily get what she wanted.
Easterly also asked why Rothweiler had not first come
to her before signing the authorization form.
In the recent case of Rossmore House5 the Board held
that questioning of a self-proclaimed and known union
adherent does not violate Section 8(a)(1) of the Act
unless the General Counsel shows that the words them-
selves or the context in which they are used suggests an
element of coercion or interference. The Board adopted
the following basic test for evaluating whether interroga-
tions violate the Act. "whether under all of the circum-
stances the interrogation reasonably tends to restrain,
coerce or interfere with rights guaranteed by the Act."s
Further the Board listed the following factors to be con-
sidered in analyzing alleged interrogations: "(1) the back-
ground; (2) the nature of the information sought; (3) the
identity of the questioner; and (4) the place and method
of the interrogation."7
Although Rothweiler was not a self-proclaimed union
adherent, the total context guidelines of Rossmore House
still apply. Applying the standards set forth by the Board
in Rossmore House, no violation can be found in Easter-
ly's questioning of Rothweiler. First, there is no history
of employer hostility or discrimination against union sup-
porters. Respondent has had collective-bargaining agree-
ments with the Union in the past. Second, the nature of
the information sought was relatively harmless. It cer-
tainly cannot be said that it appeared that Easterly was
seeking information on which to take action against em-
ployees. Third, Easterly and Rothweiler were on a
friendly basis and the discussion was quite informal.
Fourth, Rothweiler answered the questions truthfully
(suggesting that the questions did- not inspire fear) -and
asked questions herself regarding union-related matters.
Accordingly, I find the total circumstances of this con-
versation devoid of the interference and coercion neces-
sary for the finding of a violation under the guidelines
established by the Rossmore House case. Accordingly, I
recommend that this allegation of the consolidated com-
plaint be dismissed.
2. The alleged placing the onus on the Union for
preventing Steiner's wage increase
As discussed above, Easterly told Steiner that the
Union would not let Respondent grant wage increases
"until everything was settled" and, on another occasion,
that the Union would not let Respondent grant raises.
Where employees are told expected benefits are to be de-
ferred pending the outcome of an election in order to
avoid the appearance of election interference, the Board
will not find a violation of the Act. Truss-Span Co., 236
NLRB 50 (1978). But where the employer's statements
naturally impress on employees that a raise would have
been received but for a union campaign, the Board will
find that the employer unlawfully attributed to the union
its failure to grant a wage increase. Centre Engineering,
253 NLRB 419, 421 (1980).
In the instant case, Easterly did not state that raises
were being withheld in order to avoid the appearance of
interference with the representation proceedings. Rather,
Easterly stated the Union would not allow Respondent
to grant raises. Further, Easterly gave no assurances that
the raises would be given after the election matters were
6 Id at 1177
5 269 NLRB 1176 (1984) 7 Id at 1178, fn 20
SUNNYVALE MEDICAL CLINIC
settled, or that they would be made retroactive. Most
important , Respondent 's lawful withholding of raise
wages increases , in order to avoid the appearance of
election inteference , was not applicable to a situation
where an employee , such as Steiner , was being promoted
to a higher pay position . Here, Easterly created the false
impression that the Union would not permit Respondent
to pay Steiner in accordance with her new job duties I
find by such conduct Respondent violated Section 8(a)(1)
of the Act.
3. The alleged solicitation of grievances
As discussed above, Pedersen, Respondent's business
office manager, held a luncheon meeting at which em-
ployees were asked:
What is something new and good that you would
like to see happen in the B.O.?? Clinic??
The General Counsel contends that Respondent thereby
solicited employee grievances and implied that it would
remedy such grievances The General Counsel further
contends that by engaging in such conduct during the
pendency of the representation petitions Respondent vio-
lated Section 8(a)(1) of the Act The essence of such a
violation is not the solicitation 'of grievances itself;
rather, it is the interference created by such solicitation
that the employer is promising to correct these griev-
ances . Uarco Inc., 216 NLRB 1 (1974); City Products
Corp., 251 NLRB 1512, 1518 (1980)
In the instant case there is no evidence to establish
that Respondent intended to imply or implied that it
would remedy grievances. Further, Pedersen made no
comment when the subject of the dissension between
union supporters and nonsupporters was raised. At the
time of this meeting, the petitions had been pending for
some time but elections had not been scheduled. The Re-
gional Director had dismissed the refusal-to=bargain
charges but the representation cases were blocked by the
instant unfair labor practice cases. Thus, the timing of
the meeting does not suggest an effort to influence the
representation elections. Cf. Leland Stanford Jr. Universi-
ty, 240 NLRB 1138 (1979).
In sum, the General Counsel has failed to show either
an implied or express promise that the suggestions or
grievances brought forth by Pedersen's broad question
would be favorably acted on by Respondent or that such
favorable action was tied to the representation proceed-
ings. Accordingly, I shall recommend dismissal of this al-
legation of the consolidated complaint.
4 Gazenbeek's statement to Reumann that he was
disappointed in her for filing charges against him
As discussed above, Gazenbeek, Respondent 's assistant
administrator, told Reumann that he was very disap-
pointed in her for filing charges against him with the
Board. When Reumann pointed out that she had not
filed a charge against firm, Gazenbeek insisted that the
charge indicated that she had. Gazenbeek repeated that
he was disappointed in Reumann.
The General Counsel argues' that this statement of dis-
satisfaction violated Section 8(a)(1) of the Act and, be-
1223
cause it was designed to call for a response , amounted to
an unlawful interrogation . Respondent argues that Ga-
zenbeek's statement was privileged under Section 8(c) of
the Act."
Even assuming that Gazenbeek 's statement was intend-
ed to evoke a response , under Rossmore House , supra, no
violation can be found herein . Reurnann was a union
steward and , therefore , an open union supporter within
the meaning of Rossmore House. Gazenbeek 's statement
would be considered merely a conversation opener. Fur-
ther, in Rossmore House, the Board recognized the right
of employers to communicate with their employees con-
cerning a union campaign "so long as the communica-
tions do not contain a threat of reprisal or force or
promise of benefit." Id. at 1177, citing Graham Architec-
tural Products v. NLRB, 697 F.2d 534, 541 (3d Cir. 1983)
See also NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1975). Accordingly, the Board would find that Gazen-
beek's statement , containing no promise of benefits or
threat of reprisal, was not coercive but merely the ex-
pression of Gazenbeek's personal opinion Thus, no vio-
lation of the Act can be found.9
5. The alleged statement by Ringrose blaming the
Union for the failure to grant wage increases
The credible evidence reveals that in answer to a ques-
tion as to why increases had not been granted earlier,
Ringrose told employees that he had been informed by
the Board's Regional Office that he could not change
wages, hours, or working conditions while the cases
were pending before the Board . Ringrose further ex-
plained that once the Board had made a determination
that Respondent's withdrawal of recognition was lawful,
he felt free to grant an increase . Under the circumstances
of this case, Ringrose's statement was a truthful expres-
sion of Respondent 's position in this case . It did not, as
alleged, place the onus on the Union for preventing em-
ployees from getting a wage increase . Ringrose truthful-
ly explained Respondent's predicament when faced with
pending cases before the Board . See, e.g., Centre Engi-
neering, supra ; Truss-Span Co., supra. Accordingly, I find
that Ringrose 's statement constituted permissible com-
ment within the meaning of Section 8(c) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Sunnyvale Medical Clinic, Inc., is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union, Engineers and Scientists of California,
Marine Engineers Beneficial Association, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
Sec 8(c) provides
The expressing of any views, argument , or opinion or the dissemi-
nation, thereof, whether in written, printed , graphic, or visual form,
shall not constitute or be evidence of an unfair labor practice under
any of the provisions of the Act, if such expression contains no
threat of reprisal or force or promise of benefit
I find the cases cited by the General Counsel to be inapposite Those
cases predate Rossmore House and apply a standard rejected by the Board
in that lead case
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by unlawfully
placing the blame on the Union for its failure to grant
wage increases to an employee.
4. The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
5. Respondent has not otherwise engaged in unfair
labor practices.
THE REMEDY
Having found that Respondent, Sunnyvale Medical
Clinic, Inc., has engaged in certain unfair labor practices,
I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to ef-
fectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edio
ORDER
The Respondent, Sunnyvale Medical Clinic, Inc., its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that expected wage increases
have been withheld because of the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Sunnyvale, California facility copies of
the attached notice marked "Appendix." i i Copies of the
notice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
10 All outstanding motions inconsistent with this recommended Order
are denied If no exceptions are filed as provided by Sec 102 46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec 102 48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all
purposes
I I If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that those allegations of the
consolidated complaint as to which no violations have
been found are dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT tell employees that expected wage in-
creases have been withheld because of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
SUNNYVALE MEDICAL CLINIC, INC.