254 N.L.R.B. 1377 (N.L.R.B. 1981)

Sunrise Hospital Medical Center

National Labor Relations Board - Board DecisionsMar 13, 1981

254 N.L.R.B. 1377 (N.L.R.B. 1981)

10(c) CLIFFORD 8(a)(l) All represented infra. we stage the the dld etther the Charglng 1377 SUNRISE HOSPITAL MEDICAL CENTER Humana Corp. d/b/a Sunrise Hospital Medical Center and International Union of Operating Engineers Local Union No. 501. Case 31-CA- 9502 March 13, 198 1 D E C I S I O N A N D O R D E R O n October 6, 1980, Administrative L a w Judge Clifford H. Anderson issued the attached Decision in this proceeding. Thereafter, t he Respondent filed exceptions and a supporting brief. T h e Genera l Counsel and the Union filed answering briefs t o t he Respondent's exceptions. T h e Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided t o affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and t o adopt his recommended Order . O R D E R Pursuant t o Section o f the National Labor Relations Act , as amended, the National Labor Re- lations Board adopts as its Orde r the recommended Orde r of the Administrative L a w Judge and hereby orders that t he Respondent, Humana Corp. d/b/a Sunrise Hospital Medical Center, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE H. ANDERSON, Administrative Law Judge: This matter was heard by me on September 3, 1980, at Las Vegas, Nevada, pursuant to an order consolidating cases and consolidated complaint and notice of hearing issued by the Regional Director for Region 31 of the Na- tional Labor Relations Board on April 17, 1980, alleging that Humana Corp d/b/a Sunrise Hospital Medical Center (hereinafter called Respondent) and West Coast Industrial Relations Association, Inc. (hereinafter called West Coast), had violated Section of the National Labor Relations Act (hereinafter called the Act). The consolidated complaint was based on charges filed by the International Union of Operating Engineers Local Union No. 501 as follows: The original charge in Case 31-CA- 9499 was filed on October 24, 1979, and amended on Oc- tober 29, 1979, against West Coast Industrial Relations Association, Inc. (herein called West Coast), and the original charge in Case 31-CA-9502 was filed on Octo- ber 24, 1979, and amended on October 29, 1979, against Respondent. parties were by counsel. Immediately upon the commencement of the hearing, before any other matter was raised, the General Counsel moved to sever and remand to the Regional Director Case 31-CA- 9499 and that portion of the consolidated complaint ad- 254 N L R B No. 176 dressing West Coast as an independent employer rather then as an agent of Respondent. The General Counsel based his motion on the assertion that the case was in the process of being settled. The Charging Party opposed the severance and remand of the case and advanced as a basis its dissatisfaction with the settlement it believed the General Counsel was prepared to accept. I granted the motion of the General Counsel severing the consolidated cases and remanding Case 31-CA-9499 to the Regional Director for further processing as he deemed appropri- ate. I did so despite the Charging Party's opposition. It is within the discretion of the General Counsel and its agent, the Regional Director, to postpone litigation when they determine a satisfactory settlement may be reached.' Accordingly, thereafter the only case before me was Case 31-CA-9502 which was directed solely against Respondent. The conduct of West Coast Industri- al Relations Association, Inc., remained in issue however in that case as an agent of Respondent acting on its behalf. Following the severance of Case 31-CA-9499, the General Counsel moved to amend its now unconsolidat- ed complaint against Respondent. There being no opposi- tion from Respondent or the Charging Party the motion was granted. Thereafter Respondent amended its answer essentially to admit the factual allegations of the amend- ed complaint with certain limited exceptions discussed The General Counsel then rested. Respondent also rested without adducing evidence. The Charging Party sought to adduce evidence, however. Counsel for the Charging Party argued: We object to the entire procedure and the manner in which the case got to the point. We objected to the settlement with West Coast, and we are now in the position where there are no issues to litigate, and we have a case to present which believe should establish to Your Honor, to the Board, and to the public, in general, a pattern and practice of outrageous, egregious conduct on the part of all Re- spondents in this case, and violating the federal law, and violating especially the National Labor Rela- tions Act. We have witnesses present to establish what I just said. I must, however, frankly state that the wit- nesses' testimony would be cumulative in adding to the admissions made by Respondent, Sunrise, this afternoon. We would be, so to speak, gilding the lily. Now, legally, you are in the position where an alle- gation was made, it has been admitted, and I guess no issue exists as to the facts, and you must make a finding and must issue a conclusion and must make an Order. We would offer to proceed with the presentation of our case, in order to present to Your Honor the at- ' Findtng the settlement at this preliminary of proceeding a matter for General Counsel. I not consider adequacy o f the settlement or the Party's objections to its terms. The settle- ment was not before me for approval or disapproval. 1.178 part^,^ $5,000 $250,000. 2(6) 2(14) 1 B B 1 B 31- B vlew statement aq In 2(5) 2(11) 2(13) 2(13) UNFAIR ( f ) DECISIONS O F NATIONAL LABOR RELATIONS BOARD mosphere and the climate in which all of these events which Respondent, Sunrise, has admitted took place. The General Counsel opposed the Charging Party's being allowed to call witnesses o r adduce other evi- dence. Counsel for the General Counsel argued that "the pleadings speak for themselves" and "there is no reason for evidence to [be] put forth in this case." Respondent joined in opposition. I sustained the General Counsel's objection and denied the Charging Party an opportunity to present its evidence. I did so because, in agreement with the General Counsel, I find that the record was complete and, as I informed all parties including Re- spondent, would support findings on all allegations. All parties were provided an opportunity to make oral argument and to file briefs. The parties waived oral argu- ment. Briefs have been received from the General Coun- sel and the Charging Party. On the entire record in this case, as described above, and upon careful consideration of the briefs of the Gen- eral CounselY and the Charging I make the fol- lowing: I. JURISDICTION Respondent is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Delaware, with an office and principal place of business located in Las Veges, Nevada, where it is engaged in the operation of a hospital. In the course and conduct of its business oper- ations, Respondent annually purchases and receives goods and services valued in excess of directly from suppliers located outside the State of Nevada and annually derives gross revenues in excess of Respondent is now, and has been at all times material herein, an employer engaged in commerce and in a busi- ness affecting commerce within the meaning of Section and (7) of the Act and a health care institution within the meaning of Section of the Act. reject Exhs. A and of the General Counsel's brief and have not considered them. Exh. A purports to be a Federal criminal indictment of an unrelated individual for obstructing Narional Labor Relations Board procedures. I d o not need the indictment to take notice of United States statutes. The indictment can serve no other purpose and is therefore irrel- evant. Exh. purports to be a complaint and informal settlement agree- ment on an unrelated case involving Respondent. First, a complaint is an allegation, not evidence. Second, a settlement is not an admission of guilt-especially where. as here, a nonadmission clause was included. Moreover, these exhibits were not offered at the hearing and Respondent was thus denied an opportunity to oppose their introduction or to intro- duce mitigating evidence. reject Exhs. A and of the Charging Party's brief and the refer- ences to these exhibits in the brief. Exh. A is a letter to counsel for the General counsel from counsel for the Charging Party opposing the settle- ment reached between the General Counsel and West Coast in Case CA-9499. Exh. is the settlement itself. These matters are in my irrelevant to the issues before me. I have examined Exh. A to the extent that it has been referred to in the Charging Party's brief solely to fully set forth the Charging Party's requested remedy in this case. Thus the exhibit is in the record only as a of requested remedy. not evidence support of a request. The Union is now, and has been at all times material herein, a labor organization within the meaning of Sec- tion of the Act. At all times material herein, the following named per- sons occupied the positions following their respective names and have been, and are now, agents of Respond- ent acting on its behalf, and supervisors within the mean- ing of Section of the Act: Lynn Rogers-employee relations director; Thomas Roscoe-engineering man- ager; Ann Wagner-personnel director. West Coast Industrial Relations Association, Inc., is now, and has been at all times material herein, an agent of Respondent acting on its behalf, within the meaning of Section of the Act. At all times material herein, the following named per- sons occupied the position of representative of West Coast Industrial Relations Association, Inc., and have been, and are now, agents of Respondent acting on its behalf within the meaning of Section of the Act: Peter Becker, James "Jim" Laurin, Fred Long, and Steven Ross. IV. ALLEGED LABOR PRACTICES On the basis of the amended pleadings and the record as a whole, I find Respondent engaged in the following acts and conduct through the agents named on the dates indicated: A. Respondent acting through Roscoe: I. On or about March 16, 1979, by telephone: (a) In- terrogated its employees about the union sympathies of fellow employees; (b) promised employees economic benefits if they abandoned their support of the Union; and (c) solicited employees to file and process a decertifi- . cation petition. 2. On or about March 17, 1979, by telephone, solicited and offered assistance to employees in processing a de- certification petition. 3. On or about March 30, 1979, by telephone: (a) Cre- ated the impression of surveillance among its employees that their union sympathies and/or activities were under surveillance by Respondent by divulging the alleged union sympathies of their fellow employees; (b) interro- gated its employees regarding the union sympathies, ac- tivities, and/or desires of their fellow employees; (c) so- licited employees to recruit other employees for the pur- pose of encouraging employees to abandon their support of the Union; (d) promised employees economic and other benefits if they abandoned their support of the Union; (e) promised employees job transfers if they as- sisted with a decertification petition; and threatened employees with discharge or retaliation for their union sympathies or desires. 4. On or about April 1, 1979, at Respondent's Las Vegas, Nevada, premises informed employees that it was hiring additional employees on the basis of their antiun- ion sympathies, support, and/or desires. 1. ' numbered 9(d), allegat~on [he 1.e.. have ~etition. Lourin, 1. petitioni5 1. 8(a)(l) Act.6 the oi In. T e r t a i n Sec. Iqb) time N.L .R .B . Ca.. Shops Inc.. Srore ,Verrleron Inc.. Roosevelr Inc.. Manharran Nerrlrron Inc. F.2d ( M 1379 SUNRISE HOSPITAL MEDICAL CENTER 5. On or about April 6, 1979, by telephone, informed employees it had hired other employees on the basis of their antiunion sympathies, support, and/or desires. 6. On or about April 9, 1979, by telephone: (a) Prom- ised employees job transfers for assisting in a decertifica- tion petition; (b) promised employees economic benefits in the form of pay raises if they abandoned their support of the Union; and (c) solicited employees to assist in a decertification petition. 7. On or about May 5, 1979, by telephone, solicited employees to assist in a decertification petition. 8. On or about May 22, 1979, by telephone, solicited employees to promise other employees benefits, includ- ing parties, for the purpose of encouraging employee support of a decertification petition. 9. On or about June 18, 1979, by telephone: (a) En- couraged employees to file a decertification petition; (b) promised employees job transfers for assistance in and support of a decertification petition; (c) implicitly prom- ised employees benefits for assistance in and support for a decertification petition; and (d) solicited employees to give false testimony before the National Labor Relations Board concerning a decertification petition. 10. On or about June 19, 1979, by telephone: (a) Reaf- firmed promises of benefits to employees for employee assistance in and support of a decertification petition; and (b) threatened employees that only nonunion employees would be hired as replacements in the event of a strike. 11. On or about June 21, 1979, by telephone, solicited and encouraged employees to engage in activities con- cerning decertification petitions at Respondent's other business locations. 12. On or about July 6, 1979, by telephone: (a) Created an impression among its employees that their union sym- pathies and/or activities were under surveillance by Re- spondent by divulging the alleged union sympathies of certain fellow employees; (b) solicited employees to in- terrogate former employees concerning their union sym- pathies, activities, and/or desires; (c) told employees that prospective employees were to be hired on the basis of their antiunion sympathies, activities, and/or desires; (d) promised employees job transfers for their assistance in a decertification petition; and (e) reaffirmed promises of benefits to employment if decertification were successful. 13. On or about July 17, 1979, by telephone: (a) En- couraged employees to withdraw a decertification peti- tion; and (b) promised employees job transfers and pay raises for having assisted in a decertification petition. 14. In or around August 1979, the exact date presently unknown, at Respondent's premises, promised employees pay raises for having assisted in a decertification petition. B. Respondent acting through Rogers: On or about March 19, 1979, by telephone: (a) En- couraged employees to seek decertification of the Union; (b) promised employees economic and other benefits if With respect to the conduct here Respondent did not admit the but did admit "that if this case were tried, unrebutted evidence tending to show the truth of that allegation would g o into record." Counsel for Respondent made such an admission even though I informed him that such a stipulation would, in my view, absent evidence to the contrary, support on adverse finding against Respondent. that the conduct as alleged would be found to occurred. I make that finding here. they abandoned their support of the Union; (c) promised employees they could deal directly with Respondent re- garding wages and/or other terms and conditions of em- ployment if they abandoned their support of the Union: (d) solicited employees to seek signatures on a decertifi- cation petition; (e) created an impression among its em- ployees that their union sympathies and/or activities were under surveillance by Respondent by divulging the alleged union sympathies of fellow employees; and (f) in- terrogated its employees regarding the union sympathies, activities, and/or desires of their fellow employees. 2. On or about July 6, 1979, at Respondent's premises, promised employees benefits for assistance in filing a de- certification C. Respondent acting through on or about June 19, 1979: At Respondent's premises: (a) Interrogated employ- ees about proposed National Labor Relations Board testi- mony and/or statements concerning a decertification pe- tition; (b) solicited employees to sign false affidavits con- cerning a decertification and (c) instructed and assisted employees in obtaining the showing of interest to support a decertification petition. 2. By telephone: (a) Interrogated employees concern- ing employee signatures obtained in support of a decerti- fication petition; (b) instructed employees in obtaining employee signatures for a decertification petition; and (c) interrogated employees and proposed testimony and/or statements concerning a decertification petition. D. Respondent acting through Wagner: On or about June 25, 1979, at a 7-Eleven store lo- cated in Las Vegas, Nevada, interrogated employees concerning employee support of a decertification peti- tion. 2. In or around August 1979, the exact date presently unknown, at Respondent's premises, promised employees pay raises for their previous assistance in a decertifica- tion petition. V. ANALYSIS A N D CONCLUSIONS I find that Respondent through the conduct described in section IV, supra, in each and every instance violated Section of the VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section IV, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. Respondent did not admit allegation the complaint but made the same stipulation described in 4, supra. conduct found violative occurred more than 6 months before the filing of the charge. is a statute of limitations and is not jurisdictional. I find therefore that, were bar a defense in this matter. it has been waived. v. A. E. Nerrleron Nerrleron Empire Compony. Nerrleron Compony. and Compony, . 241 130 Cir. 1957). V11. Hickmott Inc., may thus 1. 2(6) 2(5) 8(a)(l) 2(6) 10(c) 1. "Appendi~."~ 31, Sec lind- ings, Sec. a ORDER 1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. The unfair labor practices found above constitute a course of conduct designed to eviscerate employee Sec- tion 7 rights and to impede and distort the administration of the National Labor Relations Act through what could otherwise be described as intimidation, bribery, and sub- ornation. This conduct goes to the very heart of the Act. I agree with the General Counsel that such concuct re- quires the broadest possible cease-and-desist language in the remedial notice. Foods. 242 NLRB 1357 (1979). I do not find appropriate under all the cir- cumstances of this case the Charging Party's request for awarding of costs. Further, inasmuch as the conduct found violative in- cludes solicitation and encouragement of employees to engage in illegal activities concerning Board decertifica- tion petitions at Respondent's other business locations, I shall require the notice posting herein to occur at all of Respondent's facilities where a labor organization repre- sents employees. Respondent's conduct included the encouragement of employee participation in potential criminal activity. Em- ployees commit criminal acts as a result of Re- spondent's suggestions. This is a matter of such serious- ness that it is necessary to insure that all employees are aware of the potential criminal liability associated with the giving of willfully false statements to officials of the Federal Government. I shall therefore conclude in the remedial notice statements to inform employees of their rights and obligations with respect to such conduct. I shall also require Respondent to mail the notice to every current employee who was represented by the Union at its Las Vegas facility as will as every union-represented employee whose employment ended since March 16, 1979, the first date of misconduct found herein. Upon the foregoing findings of fact, and the entire record herein, I make the following: Respondent is an employer engaged in commerce within the meaning of Section and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section of the Act. 3. Respondent has violated Section of the Act by engaging in the conduct set forth in section IV of this Decision. 4. The unfair labor practices set forth above affect commerce within the meaning of Section and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section of the Act, I hereby issue the following recommended: The Respondent, Humana Corp. d/b/a Sunrise Hospi- tal Medical Center, Las Vegas, Nevada, its officers, agents, including West Coast Industrial Relations Associ- ation, Inc., successors, and assigns, shall: Cease and desist from: (a) Engaging in the conduct found in section IV of this Decision. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them under Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Post at each of its facilities where a labor organiza- tion represents employees copies of the attached notice marked Copies of the said notice, on forms provided by the Regional Director for Region after being duly signed by its authorized representative, shall be posted immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the home address of each of its current union-represented employees and all union-represented employees who left their employment since March 16, 1979, at its Las Vegas facility by mailing to their last known addresses copies of the attached notice marked "Appendix." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords showing the names and addresses of present and former employees who are to receive copies of the notice under the terms of this Order. (d) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. In the event no exceptions are filed as provided by 102.46 of the Rules and Regulations of the National Labor Relations Board, the conclusions, and recommended Order herein shall, as provided in 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. ~rotec t ion individuals arc NOT encouraging WILL WILL WILL solicit WILL WILL decertificaiion Inc., 1381 SUNRISE HOSPITAL MEDICAL CENTER The Act gives employees the following rights: T o engage in self-organization T o form, join, o r assist any union T o bargain collectively through representa- tives of their own choice T o engage in activities together for the pur- pose of collective bargaining or other mutual aid or T o refrain from the exercise of any or all such activities. Various laws of the United States, including its crimi- nal laws, make it illegal for employees or any other indi- vidual to make false statements, sign false affivdavits, or give false testimony to agencies of the United States of America, including the National Labor Relations Board. convicted of such offense susceptible to civil and criminal penlaties including substantial fines and imprisonment. The National Labor Relations Board conducts elec- tions among employees to determine if they wish to be represented or to continue to be represented by a labor organization. The Board requires that a certain portion of employees indicate a desire for an election before it will be conducted. Such expressions of desire by employ- ees must be made by employees on their own, free from threats, promises of benefits, o r other improper induce- ments by employers or others. In recognition of all of the above rights and obliga- tions we hereby notify our employees that: WE W ILL NOT interrogate our employees about the union sympathies of fellow employees. WE W ILL NOT promise employees economic benefits if they abandon support of International Union of Operating Engineers Local Union No. 501. WE W ILL NOT solicit employees to file and proc- ess a decertification petition or encourage employ- ees to seek decertification of International Union of Operating Engineers Local Union No. 501. WE W ILL NOT create the impression of surveil- lance amongst our employees that their union sym- pathies and/or activities are under surveillance by us by divulging the alleged union sympathies of fellow employees. WE W ILL NOT promise employees job transfers and pay raises for having assisted in a decertifica- tion petition. WE WILL NOT promise employees economic and other benefits if they abandon their support of the Union. WE W IL L NOT promise employees they may deal directly with us regarding wages and/or other terms and conditions of employment, if they aban- don their support for the Union. W E W ILL solicit employees to seek signa- tures on a decertification petition or to recruit other employees for the purpose of employ- ees to abandon their support for the Union. WE NOT employees benefits for as- sistance in filing a decertification petition. W E WILL NOT interrogate employees about con- templated National Labor Relations Board testimo- ny and/or statements concerning a decertification petition. W E NOT inform employees that we have hired additional employees because of their antiun- ion sympathy, support, or desire or that we will hire such employees. WE NOT employees to promise other employees benefits, including parties, for the pur- pose of encouraging employee support of a decerti- fication petition. WE W ILL NOT solicit employees to give false tes- timony before the National Labor Relations Board concerning a decertification petition. W E W ILL NOT solicit and encourage employees to engage in activities concerning decertification pe- titions at other of our business locations. W E W ILL NOT solicit employees to interrogate former employees concerning their union sympa- thies, activities, and/or desires. WE NOT encourage employees to withdraw a decertification petition. WE W ILL NOT solicit employees to sign false affi- davits concerning a decertification petition. WE WILL NOT instruct and assist employees in obtaining employees' signatures or interrogate em- ployees concerning the showing of interest support- ing a decertification petition. WE WILL NOT propose testimony and/or state- ments for employees regarding a decertification pe- tition. WE NOT promise employees pay raises be- cause they have previously assisted in a decertifica- tion petition. WE WILL NOT threaten employees with discharge or retaliation for their union sympathies or desires. WE W ILL NOT reaffirm promises of benefits to employees if the petition is success- ful. WE W ILL NOT encourage any of the above con- duct directly through our own employees or through our agent, West Coast Industrial Relations Association, or its employees. WE W ILL NOT in any other manner violate the National Labor Relations Act.