Union Hospital of Cecil County

National Labor Relations Board - Board Decisions

Apr 19, 1977

229 N.L.R.B. 91 (N.L.R.B. 1977)

UNION HOSPITAL OF CECIL COUNTY
Union Hospital of Cecil County and Laborers' District
Council, Laborers' International Union of North
America, AFL-CIO, Petitioner. Case 5-RC-9639
April 19, 1977
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the objections to an
election held on June 3 and 4, 1976,1 and the Hearing
Officer's report recommending disposition of same,
pertinent portions of which are attached hereto. The
Board has reviewed the record in light of the
exceptions and briefs, and hereby adopts the Hearing
Officer's findings 2 and recommendations. 3
[Direction of Second Election and Excelsior footnote
omitted from publication.]
IThe election was conducted pursuant to a Decision and Direction of
Election issued by the Regional Director on April 22, 1976. The tally was 70
votes for, and 97 votes against, the Petitioner; there were 4 challenged
ballots, an insufficient number to affect the results.
2 The Employer has excepted to certain credibility resolutions of the
Hearing Officer. It is the established policy of the Board not to overrule a
Hearing Officer's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that the resolutions are incorrect. The
Coca-Cola Bottling Company of Memphis, 132 NLRB 481, 483 (1961);
Siretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no sufficient basis
for disturbing the credibility resolutions in this case.
We do not adopt the Hearing Officer's finding that the Employee
Representative Committee at a meeting on or about November 30, 1975,
submitted a request to the hospital administrator for a cost-of-living wage
increase. Employer strenuously excepts to this finding claiming that the
meeting occurred on November II before it had any knowledge of union
activity. This discrepancy with respect to the date on which the wage
increase was requested is not significant. The significant fact is that the
Employer's initial action with respect to the wage increase took place in
December after the hospital administrator had knowledge of union activity
and vowed to do something about it "before it went any further."
3 In the absence of exceptions, we adopt proforma the Heanring Officer's
recommendations with regard to Objections 1, 2, 4, 8, 10, and 13.
APPENDIX
9. The Union object [sic] to the conduct of the
employer alleged in case no. 5-CA-7976 filed on May
25, 1976.
Objection 9 concerns the Employer's granting of a 4-
percent wage increase during the critical period. The
Petitioner takes the position that the wage increase, which
affected all voting unit employees, was granted in an effort
to influence the outcome of the election. The Petitioner
further states that the timing of the increase deviated from
past practice. The Employer takes the position that the
wage increase was granted at a time when it was
economically feasible to do so, was based upon business
considerations and was not motivated by the filing of the
petition.
229 NLRB No. 20
The record discloses that previous increases had been
granted by the Employer in August 1975 and November
1974. The most recent increase had been announced to
employees by letter dated July 9, 1975, to be effective
during the first pay period in August.
On or about November 30, 1975, David Grupenhoff met
with the Employee Representative Comittee, herein called
ERC. The committee consists of nonsupervisory employee
delegates representing each of the Hospital's departments.
The group brings personnel and employee relations
problems to the attention of hospital management and
from time to time makes substantive recommendations to
the hospital administrator. Among the requests submitted
by the ERC in November 1975 was one for a cost-of-living
wage increase. Members of the ERC who testified at the
hearing stated that a request for a wage increase had
appeared in each list submitted to Grupenhoff in the past,
but that no action had been taken.
After studying the ERC's suggestions, Grupenhoff met
with the full committee at its regularly scheduled meeting
on December 16, 1975. The minutes of that meeting (Empl.
Exh. I) reflect Grupenhoff's pledge to submit to the
Hospital's board of directors a request for a cost-of-living
wage increase to take effect in late February or early
March 1976. The amount of the recommended increase
was to be 4 percent.
On direct examination, Grupenhoff testified that both at
the time of his receipt of the ERCs requests in November
and his attendance at the ERC meeting of December 16,
1975, he had no knowledge of any union activity in the
Hospital. Two employees who are ERC members and who
were in attendance at the December 16 meeting state that
Grupenhoff did indicate he had knowledge of the Union's
presence in December. David Cooke and Elizabeth Wilson
state that Grupenhoff, in off the record remarks prior to
the opening of the meeting, said that he had heard rumors
about a union around the Hospital and he "would like to
do something about it before it got-before it went any
further." Grupenhoff denied making the statement and
contends that he had no knowledge of any union activity in
the Hospital until March 24, 1976, when the Union's
representation petition was received in the mail from the
Board's Regional Office.
Petitioner's witness David Cooke also testified that he
attended his first union meeting around November 20,
1975. He further states that, after reporting to work on the
day after the union meeting, he was approached by a
supervisor, Mr. Ritter, who asked him about the meeting.
David Cooke's testimony concerning his conversation with
Ritter is uncontroverted. Therefore, there can be no
question that the Hospital had knowledge of union activity
among its employees as early as November 1975. Further, I
do not credit Grupenhoff's denial concerning the off-the-
record discussion at the December 16, 1975, ERC meeting.
Rather, I credit the testimony of witnesses Cooke and
Wilson. Thus, I find that at the time Grupenhoff forwarded
his recommendation for a pay increase to members of the
Hospital's board of directors, he did so with full knowledge
of the Union's activities in the Hospital.
On February 19, 1976, the Employer's Personnel Com-
mittee held a meeting. One of the topics discussed was the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advisability of granting a general wage increase to
employees of the Hospital. As the minutes of that meeting
reflect (Empl. Exh. 2), the Personnel Committee voted to
recommend the wage increase to the Hospital's board of
directors at the next regularly scheduled meeting. A close
examination of Employer's Exhibit 2 reveals the statement,
"Mr. Hittel presented the request for a general pay
increase. The request is explained in the accompanying
letter." At the hearing, however, the Employer declined to
submit into evidence the attached letter explaining the pay
increase, stating that the letter was not germane. The
Employer's position is that the wage increase was eventual-
ly granted because it was economically feasible to do so
and the timing of the increase was not planned to influence
the outcome of the representation election. The omission of
the attached document which purportedly "explained" the
pay increase does little to persuade the Hearing Officer as
to the viability of the Employer's position.
On February 25, 1976, the full board of directors held its
regularly scheduled monthly meeting. Although the recom-
mendation for a pay increase was presented to the board,
the motion was tabled. Instead, the board determined to
wait for I month, study the matter further, and reconsider
it at next month's meeting.
On March 24, 1976, the Hospital received from the
NLRB Regional Office a copy of the Union's election
petition. Coincidentally, the petition was received on the
very day that the monthly board of directors' meeting had
been scheduled. The minutes of that meeting (Empl. Exh.
5), reflect that the recommendation for a wage increase was
again presented by the Personnel Committee and was
approved by the board. It was determined to make the
increase retroactive to the first pay period in March
pending approval of a labor attorney to be retained by the
Hospital. The Union's election petition was discussed
briefly. After discussions with the attorney, the pay
increase was made effective for the pay period March 14-
27. Notification of the wage increase was received by the
employees along with the increased paycheck.
Having credited Petitioner's witnesses who testified that
hospital administration had knowledge of the Union's
presence as early as November 1975, we now turn to a
discussion of the timing of the March increase and the
Employer's past practice. The evidence discloses that the
Hospital's past policy had been to grant one wage increase
per year. The March 1976 increase, on the other hand, was
proposed by the hospital administrator within 5 months of
the previous one and implemented within 9 months.
Further, nearly 2 months elapsed before Grupenhoffs
December 16, 1975, pledge was presented to the board, and
on February 25, 1976, the board was content to delay
consideration of the increase for yet another month.
However, at the board meeting on March 24, 1976, after
the petition had been received, the recommendation for a
pay increase was "unanimously adopted."
In support of its position that the March 1976 increase
was not timed in such a way as to influence the outcome of
the representation proceeding, the Employer states that it
was in response to a specific request from the ERC that the
machinery was implemented, resulting in the wage increase
in March. I do not find this argument persuasive. I credit
the testimony of ERC members who state that the request
for higher wage rates was a continuing one and had
appeared on each list of requests sent to Mr. Grupenhoff.
Clearly the fact that wage increases had been under
longstanding consideration does not alter the fact that the
actual timing of the granting of the increase is coercive.
Similarly, where the Employer learns of union activity and
accelerates what were before vague possibilities, the wage
increase interferes with a free election. Texas Transport and
Terminal Company, 187 NLRB 466 (1970).
An employer is free to implement a wage increase during
the critical period if (1) the timing and amount of the
increase comports with past practice, (2) business consider-
ations are involved, and (3) the process through which the
increase is granted is begun before the onset of union
activity. Mallory Controls Co., 214 NLRB 616. It is the
conclusion of the Hearing Officer that in the instant case,
these prerequisites are patently absent. The March 1976
wage increase was a deviation from past practice, the
planning of the increase began after hospital management
learned of the Union's presence in the Hospital, and the
Employer has presented no evidence of pressing business
considerations which would warrant the increase.
The circumstances of this case are similar to those in
Tower Paint Investments, Inc., 195 NLRB 823, where the
Board states:
The timing of the increase during the organizational
period could not fail to impress even the most obtuse
that the company was giving the increase and that this
occurred before the Union obtained bargaining rights,
therefore, why was a union necessary.
Simply because the Employer in this case refrained from
other more obvious violations of Section 8(aX1), it is not
free to employ the "fist inside a velvet glove" of well-timed
wage increases. N.LR.B. v. Exchange Parts, 375 U.S. 405
(1964). As it is the conclusion of the Hearing Officer that
the March 1976 wage increase constituted objectionable
conduct sufficient to affect the outcome of the election, the
undersigned recommends that Petitioner's Objection 9 be
sustained, the election conducted on June 3 and 4, 1976, be
set aside, and a new election be conducted.
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