Uniontown Hospital Association

National Labor Relations Board - Board Decisions

Dec 26, 1985

277 N.L.R.B. 1298 (N.L.R.B. 1985)

1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Uniontown Hospital Association and District 1199P,
National Union of Hospital and Health Care
Employees , AFL-CIO
Uniontown Hospital and District 1199P , National
Union of Hospital and Health Care Employees,
a Division of RWDSU, AFL-CIO. Cases 6-
CA- 12474, 6-CA-13002, and 6-RC-8611
26 December 1985
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 31 December 1981 Administrative Law
Judge Karl H. Buschmann issued the attached deci-
sion. The General Counsel and, the Respondent
filed exceptions and supporting briefs.
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, I and
conclusions as modified and to adopt the recom-
mended Order2 as modified.
The judge found that the Respondent3 conduct-
ed a vigorous antiunion campaign which included
numerous meetings with employees and the distri-
bution to them, both orally and in writing, informa-
tion regarding, inter alia, the Respondent's position
and facts about the Union and strikes. He also
found that Director of Nursing Thelma Sandy,
nursing supervisors, and most of the Respondent's
administrative staff were supervisors and/or agents
of the Respondent and deeply involved in the Re-
spondent's efforts to dissuade its employees from
the Union. Toward this end, the judge also found
that these individuals served on a committee or
"team" which the Respondent utilized in planning
and conducting its antiunion campaign. The judge
concluded that the various acts of misconduct com-
mitted by these individuals violated Section 8(a)(1)
of the Act. However, he recommended dismissal of
8(a)(1) allegations involving Respondent's Staff De-
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
z In light of our decision herein, we deny the General Counsel's excep-
tion that a broad order rather than a narrow order is appropriate in this
case Hickmott Foods, 242 NLRB 1357 (1979)
3 Respondent Uniontown Hospital Association is a nonprofit Pennsyl-
vania corporation engaged as a health care institution in the operation of
a hospital
velopment Instructor Judy Triplett. The complaint
alleges that she interrogated employees regarding
the Union; threatened them with loss of benefits
and with the futility of selecting the Union; solicit-
ed grievances from employees; and implied or
promised increased benefits and improved terms
and conditions of employment. The judge conclud-
ed that Triplett was neither a supervisor nor an
agent of the Respondent and he described her
status as "vague" and "uncertain." He therefore
omitted any discussion of the merits of the allega-
tions involving Triplett. The General Counsel has
excepted, contending that, the record amply sup-
ports finding Triplett to be an agent of the Re-
spondent and that she engaged in the' unfair labor
practices as alleged. We agree.
Staffer Triplett and her supervisor, Assistant Di-
rector of Staff Development Althea Spaw, consti-
tuted the staff of that department and worked very
closely together. Both reported to Director of
Nursing Thelma Sandy. Their office is located
within part of a suite of offices constituting the De-
partment of Nursing Services. A part of Triplett's
job responsibilities required her to attend the Re-
spondent's monthly administrative meetings along
with Sandy and other supervisory and administra-
tive staff members. As found by the judge some of
these same individuals, including Sandy and Spaw,
served on the Respondent's committee to resist the
Union's organizing efforts, with Sandy serving as
its chief contact or chairperson.4
Triplett testified that because of the pending
election, employee interest in her in-service pro-
grams declined to the point that they were tempo-
rarily discontinued. Triplett testified that she had a
lot of free time so she approached Sandy and told
her that "if she could use [me] in any way, to dis-
tribute information to the staff nurses that .. .
[she] . . . would be willing to participate." Triplett
also testified that she was included in all the meet-
ings management had with respect to the Union
and that she, along with other "team" members,
were given written instructions by the Respond-
ent's counsel as to the "do's and don'ts" of re-
sponding to the Union's campaign.5
4 The record shows that the "team," besides Sandy and Spaw, consist-
ed of the Respondent's clinical supervisors, administrative supervisors,
clinical coordinators, personnel director, and executive director
5 Director of Nursing Sandy corroborated Triplett's attendance at the
"team" meetings Sandy further corroborated Triplett's testimony regard-
ing her participation by relating an incident where Triplett called her at
her home at approximately 10 p in from the Hospital to tell her that one
of the staff nurses was very upset because she had been called some unsa-
vory names as she entered the Hospital that night Sandy responded to
the call by going to the Hospital and talking with the nurse to calm her
Sandy also directed Triplett to find out if any other nurses were experi-
encing similar situations and to help them
277 NLRB No. 144
UNIONTOWN HOSPITAL ASSN 1299
During the 6 weeks before the election, Triplett
was at the Hospital on numerous occasions during
the evening 3:30 to 11 p.m. shift and the night 11
p.m. to 7 a.m. shift talking to staff nurses regarding
the Respondent's position and distributing literature
about the Union. Her normal working hours were
from 7 a.m. to 3 p.m. Triplett also testified that
during this period she spoke to approximately 80 to
90 nurses and spent 80 percent of her worktime in
this activity. In addition, Triplett admitted that on
various occasions she would report back to Sandy
or the committee the impressions or questions that
she received from her discussions with the nurses.
These questions would be discussed in the commit-
tee meetings, answers would be formulated, and
then she would take them back to the nurses.
Unlike the judge, We do not characterize Trip-
lett's agency status as "vague"; indeed, the evi-
dence shows clearly that she was a part of manage-
ment's "team." Her testimony was uncontradicted
by the Respondent's witnesses regarding how she
volunteered to be on the committee and her subse-
quent efforts on the Respondent's behalf. That the
Respondent allowed 'Triplett to devote significant
amounts of her worktime to its antiunion effort is
compelling evidence that she was considered one
of the "team." Even assuming, arguendo, that Trip-
lett was not on the committee, she was allowed to
assume a role whereby unit employees reasonably
believed she spoke for the Respondent. Thus, in
the absence of a disavowal of her conduct by the
Respondent, we find that Triplett was an agent of
the Respondent and that the Respondent ratified
her actions. Under settled principles of agency law,
the Respondent is therefore responsible for Trip-
lett's coercive threats and other alleged violations
of Section 8(a)(1) discussed below. Atlas Corp., 256
NLRB 91 (1981); Advanced Mining Group of Re-
public Corp., 260 NLRB 486, 503 (1982). Communi-
ty Cash Stores, 238 NLRB 265 (1978).
On the merits the record shows that Triplett
asked staff nurse Janet Scurba how she felt about
the Union and how benefits could be improved by
the Respondent. Triplett also told Scurba that em-
ployees do not necessarily keep the benefits that
they already have and that it is possible they will
start out with nothing when the negotiations begin.
Triplett told staff nurse Suzanne Schuessler that
"since she was divorced and raising children on
her own, Respondent felt that she could not afford
to lose her Hospital benefits which Respondent felt
were superior to the Union's, but if the Union
came in she would lose her hospital benefits and
would have to take the Union's."
Further, during a conversation with staff nurse
Patricia Dunn, Triplett told her that "things would
be different for her if the Union [came] in because
she [would] not have the flexibility to turn down
work as a part-time worker and that she would be
required to work holidays, weekends and fill in for
full-time people." It was during this conversation
that Triplett found out that Dunn was for the
Union. In another conversation Triplett asked staff
nurse Carla Jose "what had the Union promised
them, what could the Union do for them and asked
that unit employees give Respondent another
chance to see what Respondent could do for
them."
Staff nurse Donna Martin testified that Triplett
told her "that once everything settled down the
Respondent was considering benefits for part-time
people and if the Union got in it was possible em-
ployees wouldn't be able to pick their days or
hours . . . that the Union would tell them what
shift and days to work." Staff nurse Pamela Smith
testified that Triplett said "that if the Union got in,
they would have to start from scratch and would
lose everything that they had, including the salary
increase scheduled for that January and that it
would be sort of a dictatorship if the Union got
in." Patricia Yoder, a part-time nurse, testified that
Triplett told her that "if the Union got in there
was a possibility that the Union would determine
which days part-time employees could work." Staff
nurse Margaret Juran testified that Triplett asked
her if "Cindy was voting" and stated that "Juran
knew how to vote and that Respondent had the
power to hire and fire whoever they wanted and
that Juran had been at Respondent's a long time
... she had better think about it."
Staff nurse Loretta Veil testified that Triplett
asked her "what were the nurses upset about or
what was she upset about and that she [Triplett]
would take those complaints to Mrs. Sandy and see
what they could do." In response, Veil testified
that she told Triplett, "[T]he nurses were con-
cerned about time and a half for holidays, more
weekends off and better vacation time." In addi-
tion, staff nurse Jane Novak testified that "before
she wrote the letter to the Union seeking to get her
card back, Triplett told her that negotiations would
start from scratch and not from the benefits she
had at that point." Novak also testified that "after
she told Triplett she had signed a card, Triplett
told her the procedures to follow so she could re-
trieve her card from the Union."
We conclude from this uncontradicted testimony
and the record as a whole that the unlawful con-
duct attributed to Triplett, which ns very similar to
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the numerous acts of misconduct found by the
judge, also violated Section 8(a)(1).6
The judge' found that the Respondent's miscon-
duct constituted unfair labor practices which were
serious enough to warrant setting aside the election
and issuing '-a bargaining order based on the Union's
card majority. The Respondent contends that a
bargaining order cannot be sustained solely on
8(a)(1) violations in the absence of any 8(a)(3) alle-
gations or findings of discharge or threat of clo-
sure. The Respondent further contends that a bar-
gaining order is inappropriate in this case because
there was no discussion or showing that the possi-
bility of holding ,a fair rerun election had been fore-
closed or that, the effects of the 8(a)(1) violations
could not be erased by traditional remedies. We
agree 'with the Respondent that a bargaining order
should not issue in this case.
The standards for determining whether unlawful
conduct requires a bargaining order are set forth in
'NLRB-'v. Gissel Packing Co., 395 U.S. 575 (1969).
There the Supreme Court held that such an order
would be an appropriate remedy for: (1) "excep-
tional" cases marked by "`outrageous' and 'perva-
sive' unfair labor practices . . . of `such a nature
that their coercive effects cannot be eliminated by
the application of traditional remedies, with the
result that a fair and reliable election cannot be
had,"' and (2) "less extraordinary cases marked by
less pervasive practices which nonetheless still
have the tendency to undermine majority strength
and impede the election processes." The Court also
.noted that there was a "third category of minor or
less extensive unfair labor practices which, because
of their minimal impact on the election machinery,
will not sustain a bargaining order." However, the
Court continued, "There is ... no per se rule that
the commission of any unfair labor practice will
automatically result in an 8(a)(5) violation."7
Although the Respondent's unfair labor practices
were numerous, we find that they fall within the
third category of unfair labor practices as defined
in Gissel, supra,' because they involve only oral and
written communications to employees which were
not -"outrageous" or "pervasive" and are not the
type of conduct that would linger in the minds of
employees and preclude a free and uncoerced vote
in the future. There is no allegation or finding that
the Respondent threatened its employees with clo-
sure should they select the Union nor was there a
single discharge of a union adherent. Moreover
there was no unlawful grant of benefits which
6 Several of the instances referred to above may not individually be
volative of Sec 8(a)(1) However, it is impossible to separate them from
the general pattern of unlawful conduct
7 Id at 614-615
might carry the specific message to employees that
they were rewarded for rejection of the Union.
The employees, many of whom openly campaigned
and wore union buttons, held to their views despite
the efforts of the Respondent and we believe these
same employees will be able to express themselves
freely in a second election after the Respondent's
compliance with a cease-and-desist order.
Therefore, although we believe that the Re-
spondent's unfair labor practices interfered with the
election, we find that they were not so serious that
they cannot be eradicated by traditional remedies
or that a fair election cannot be held in the future."
We also therefore conclude that the Respondent
has not unlawfully refused to recognize and bar-
gain with the Union and we shall dismiss this alle-
gation. Accordingly, we conclude that the first
election should be set aside and a second election
directed.9
AMENDED CONCLUSIONS OF LAW
We affirm the judge's Conclusions of Law as
modified below.
1. Substitute the following for Conclusion of
Law 3.
"3. By maintaining and enforcing an unlawfully
broad no-solicitation, no-distribution rule; maintain-
ing and disparately enforcing an unlawful rule pro-
hibiting employees from wearing union-related in-
signia; creating the impression of surveillance of its
employees' union activities; urging employees to
retrieve and revoke their union membership cards;
interfering physically with union leafletting; inter-
rogating employees concerning union membership,
activities, and sympathies; threatening employees
with discharge because of their union activities;
threatening employees with loss of benefits if they
selected the Union as their collective-bargaining
representative; threatening to withhold benefits
from,employees if they selected the Union as their
collective-bargaining representative; threatening
not to grant references to employees because of
their union activities; threatening unspecified re-
prisals if employees selected the Union as their col-
lective-bargaining representative; informing em-
ployees of the futility of selecting the Union as
their collective-bargaining representative; soliciting
8 Evans Bros Barber Salons, 256 NLRB 121 (1981), Permanent Label
Corp, 248 NLRB 118 (1980), enfd in part 657 F2d 512 (3d Cir 1981),
NLRB v K & K Gourmet Meats, 640 F 2d 460 (3d Cir 1981), enfg in
part 245 NLRB 1331 (1979), NLRB v Shenanigans, 723 F 2d 1360, 1370-
1372 (7th Cir 1983)
In finding a bargaining order inappropriate, Member Dennis relies on
her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261
(1985)
9 The unit involved was stipulated to by the parties and its appropri-
ateness is not challenged.
UNIONTOWN HOSPITAL ASSN, 1301
employee complaints and grievances ; promising in-
creased benefits and improved terms and conditions
of employment if employees relinquished their sup-
port for the Union ; the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1)
of the Act."
2. Delete paragraphs 5, 6, and 7 and renumber
the remaining paragraph accordingly.
AMENDED REMEDY
Having found that the Respondent has engaged
in unfair labor practices in violation of Section
8(a)(1) of the Act, we shall order it to cease and
desist and not to infringe in any like or related
manner on its employees ' exercise of the rights
guaranteed by Section 7 of the Act. We shall also
order certain affirmative action necessary to effec-
tuate the policies of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Uniontown Hospital Association/-
Uniontown Hospital , Uniontown , Pennsylvania, its
officers , agents, successors , and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraphs 1(m)
and (n).
"(m) Threatening employees with unspecified re-
prisals if they select the Union as their collective-
bargaining representative.
"(n) Promising employees increased benefits and
improved terms and conditions of employment if
they relinquish their support for the Union."
2. Delete paragraph 2(a) and reletter the remain-
ing paragraphs accordingly.
3. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the election held
on 14 December 1979 in Case 6--RC-8611 be set
aside and that a new election be conducted.
[Direction of Second Election omitted from pub-
lication.]
APPENDIX
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT maintain or enforce an unlawfully
broad no-solicitation , no-distribution rule.
WE WILL NOT threaten employees with discipli-
nary action for violating such a broad rule.
WE WILL NOT create the impression of surveil-
lance of our employees ' union activity.
WE WILL NOT urge employees to revoke their
union cards.
WE WILL NOT interfere physically with union
leafletting.
WE WILL NOT interrogate our employees con-
cerning their union activities.
WE WILL NOT threaten employees with unspeci-
fied reprisals if they select the Union as their col-
lective-bargaining representative.
WE WILL NOT threaten our employees with loss
of benefits if they select the Union as their bargain-
ing representative.
WE WILL NOT threaten to withhold benefits from
employees if they select the Union as their bargain-
ing representative.
WE WILL NOT promise increased benefits to our
employees in exchange for their relinquishing sup-
port for the Union.
WE WILL NOT threaten not to grant references to
employees because of their union activities. -
WE WILL NOT inform employees of the futility of
selecting the Union as their collective-bargaining
representative.
WE WILL NOT solicit employee grievances or
complaints.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
UNIONTOWN HOSPITAL AssOCIA-
TION/UNIONTOWN HOSPITAL
Michael Poprik, Barton A. Meyers, and Janet Harner,
Esqs., for the General Counsel.
Johnathan L. Alder, Esq., and Stephen J. Stabler, Esq.
(Reed, Smith, Shaw & McClay), of Pittsburgh, Pennsyl-
vania , for the Respondent.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge.
This case arose on charges filed by District 1199P, Na-
tional Union, of Hospital and Health Care Employees, A
Division of RWDSU, AFL-CIO on June 19, 1979, in
Case 6-CA-12474 and on December 21, 1979, in Case 6-
CA-13002. The respective complaints issued on October
30, 1979, and February 29, 1980, against Uniontown Hos-
pital Association (Respondent or Hospital). These cases
were consolidated by order of February 29, 1980, and
further consolidated for hearing with the Union's objec-
tions in Cases 6-RC-8611 The objections are identical to
the charge filed in Case 6-CA-13002 and are treated in
conjunction with the present allegations. The consolidat-
ed complaint of June 18, 1980, which included amend-
ments to the original allegations , was again amended
during the hearing (Tr. 4-5, 802 ). The complaint, as
amended, contains numerous allegations of violations of
Section 8 (a)(1) of the National Labor Relations Act. It
further charges that the Union had become the bargain-
ing representative for the Hospital's nurses as of October
3, 1979, but that the Respondent had failed to bargain
with the Union and, without consulting with the Union,
had granted a wage increase to its employees in order to
dissuade them from their union activities.
Respondent 's answer, filed on June 30, 1980 , admits
the jurisdictional elements of the complaint , but it denies
the commission of any unfair labor practices.
Hearings were held on July 14 to 17 and July 22 to 24,
1980, in Uniontown , Pennsylvania . The General Counsel
filed a brief on October 8 , 1980. The Respondent filed its
brief on October 6, 1980, and by letter of November 17,
1980, advised that a case cited in its brief had subse-
quently been reversed . On the whole record in this case'
and from my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
The Respondent
Uniontown Hospital Association, the Respondent, is a
nonprofit Pennsylvania corporation located in Union-
town , Pennsylvania , where it is engaged in providing in-
patient and outpatient medical and professional care serv-
ices. The Hospital is admittedly an employer engaged in
commerce and a health care institution within the mean-
ing of Section 2(2), (6), (7), and (14) of the Act.
The Union
District 1199P, National Union of Hospital and Health
Care Employees , AFL-CIO is admittedly a labor organi-
zation within the meaning of Section 2(5) of the Act.
Background
On June 6_1979,1979, the Union commenced an organiza-
tion drive among Respondent 's employees as a result of a
prior contact by several hospital employees who wanted
1 The parties ' motion to correct transcript is granted
to explore the possibility of organizing a union. As a
result, Kay Tillow, the Union's vice president, and John
W. Hustwit, secretary-treasurer of Local 1199P, met
with the employees of the Hospital on June 6 at the Un-
iontown Holiday Inn. At that meeting, the Union initiat-
ed the signing of authorization cards and the organiza-
tion of a group of volunteers who would lead the orga-
nizing drive among the employees . Regular meetings fol-
lowed. On June 18 the Union began to distribute leaflets
at the Hospital's main entrance in support of the cam-
paign. Thereafter , a leaflet campaign , a card signing cam-
paign, and a home visit campaign followed, directed at
all the employees at the Hospital , including housekeep-
ing, nurses , nurses aides , and technical and maintenance
employees . Having achieved the greatest response from
the registered nurses, the Union decided in September to
become the collective-bargaining representative of a unit
comprised of all full- and part-time registered nurses. In
the belief that it had obtained a majority of the employ-
ees within that unit , the Union sent a mailgram, dated
October 3, 1979, to the Respondent requesting recogni-
tion (G.C. Exh. 2). On October 5, the Union filed its pe-
tition for representation with the NLRB in Case 6-RC-
8611. Following further campaigning , an election was
held on December 14, 1979, in which the Union was re-
jected by a vote of 49 for and 118 votes against the
Union
In the meantime , while the Union had conducted its
organizational drive, the Hospital did not stand by idly.
Instead , it conducted a vigorous campaign of its own, as-
sisted by counsel . Management conducted numerous
meetings with employees , and distributed to them infor-
mation, both oral and written, on behalf of the Hospital.
Thelma Sandy, director of nursing, became the chief
contact for the nurses and was available to discuss the
Union with them. Also other supervisors were deeply in-
volved in the hospital 's campaign to resist the Union's
organizing effort. In this connection , the Hospital stands
accused of having transgressed legitimate campaign ef-
forts and of having interfered with, coerced, and re-
strained the employees in their Section 7 rights resulting
in numerous 8(a)(1) violations . Necessary for this deter-
mination is an analysis of the supervisory status of sever-
al employees , including clinical coordinators . The addi-
tional issue is the propriety of a bargaining order and the
accompanying issues of the Union's majority status, and
the number of valid union cards.
Supervisors
The complaint has alleged that certain of Respondent's
employees were supervisors within the meaning of the
Act. During the hearing , the parties have stipulated to
the supervisory status of the majority of the alleged su-
pervisors' Mary Ellen Bittinger , supervisor of the ambu-
latory patient area; Betty Coppolino, assistant director of
nursing, Trudy Edenfield, administrative supervisor; Lo-
retta L'Attrellit, chief pharmacist; Joseph McDonald,
housekeeping supervisor James Matthews , supervisor in
housekeeping;, Robert Mullen, executive director and ad-
ministrator ; Marlene Noel , clinical nursing supervisor;
Evelyn Pepe, evening supervisor ; Dolores Petlevich, co-
UNIONTOWN HOSPITAL ASSN 1303
ordinator in housekeeping; Margaret Rishel, assistant di-
rector of nursing; Helen Rutter, clinical nursing supervi-
sor; Lawrence Rossi, assistant executive director, Thelma
Sandy, director of nursing, Elizabeth Selep, clinical nurs-
ing supervisor; Mary Ann Williams, supervisor of central
services; Suzanne Rogish, clinical nursing supervisor;
Arthus Varga, chief anesthesiologist; Frank Adams, secu-
rity guard, Lois Monahan, supervisor; Charles Ramage,
supervisor in housekeeping (Tr. 120-122, 656-657).
The supervisory status of eight clinical coordinators
remains in issue, as well as the status of Bernadette Ge-
badlo, chief nurse anesthetist; Jane Shuck, infection con-
trol coordinator; Althea Spaw, assistant director of staff
development, and Judy Triplett, staff development in-
structor. Section 2(11) of the Act defines a supervisor as:
[A]ny individual having the authority, in the inter-
est of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to
recommended such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
Under this definition one or more of the enumerated
powers must be exercised in the interest of the employer.
Stop & Shop Cos. v. NLRB, 548 F.2d 17, 19 (1st Cir.
1977).
The Clinical Coordinators
In this group are the following eight employees: Lo-
retta DeBord, Agnes Domaracki, Charlotte Frankhouser,
Linda Hess , Arlene Komar, Grace Robaugh, Olive
Semans , and Betty Zawlensky.
The record shows that these clinical coordinators rou-
tinely assigned employees under the Hospital' s "team
nursing" system. This system determined which team
cared for a particular patient. Coordinators were sta-
tioned at a particular unit within the Hospital from
where they would oversee that the teams functioned
within their assigned duties. In the absence of the clinical
or administrative supervisors, coordinators were in
charge. Even during their regular working time, they
rarely cared for patients directly, performing instead at a
desk in their unit They were paid at a higher rate than
regular nurses and did not get overtime pay. They rou-
tinely prepared employee evaluations which became the
basis of pay raises for the employees. The job descrip-
tions of clinical coordinators show that they were ex-
pected to possess supervisory ability and perform super-
vising functions such as assigning and evaluating the
staff, including the evaluation of staff nurses for dis-
charges and promotions and assigning staff activities and
responsibilities. They were also expected to assure that
staff nurses worked properly and efficiently.
Based on this and other record evidence, it is clear
that "clinical coordinators," all of whom performed in
essentially the same fashion, possessed at least one of the
indicia of supervisory authority to be considered supervi-
sors within the meaning; of the Act.
Bernadette Gebadlo
As chief anesthetist, Gebadlo effectively supervised
about 10 full-time anesthetists who were nurses with ad-
vanced training in anesthesia, Gebadlo prepared the as-
signment schedules which determined which of the
nurses were on duty on particular shifts. She also made
the assignments of which anesthetists would cover cer-
tain rooms. Dorthy Discovich gave the following exam-
ple of Gebadlo's assignment function (Tr. 560):
Yes, there might be children in some rooms,
some of the doctors are like they do tonsillectomies.
They're basically all children so, she would decide
what nurse Anesthetist was going to go into that
particular room since there were children in that
room. Some of the patients are elderly and they be
having some oh, a serious operation and she would
make a decision on what person went in that room.
Somebody that would be able to handle that par-
ticular case.
Q. And to the best of your knowledge, does she
make these decisions on her own?
A. Yes, to my knowledge she does.
The evidence show that Gebadlo possessed sufficient
discretionary authority to assign employees in their
duties to qualify her as a supervisor within the meaning
of the Act.
Jane Shuck
As infection control coordinator, Shuck was responsi-
ble for the prevention and control of infection in the
Hospital. As a trained nurse, her duties consisted of
making rounds to all nursing units to check on infections
of individual patients, as well as the development and im-
plementation of policies relating to infection control.
Neither her job description nor the testimony revealed
that she supervised any employees. Although she was au-
thorized to observe and evaluate nurses in their duties re-
lating to cleanliness, aseptic techniques, and treatment of
infectious diseases , she had no direct authority to disci-
pline them or correct their mistakes. Rather, she would
obtain the cooperation of department heads or supervi-
sors to effectuate any changes. In this regard she func-
tioned more like a roving nurse with a single mission,
i.e., the control of infections by observing existing prac-
tices, by developing, revising, and/or implementing poli-
cies and procedures, by educating employees, and by
recommending certain practices. Although she effective-
ly recommended changes in certain practices and proce-
dures, she apparently had no authority to direct any em-
ployees. I, accordingly, find that Jane Shuck possessed
none of the indicia of supervisory authority necessary to
be'withm the purview of the Act. However, I agree with
the General Counsel that she was an "agent" of Re-
spondent within the meaning of the Act, In this regard,
the record shows that she had attended campaign meet-
ings conducted by management, that she distributed cam-
paign literature, and that she was considered part of
management's "team," as reflected in the testimony of
Thelma Sandy, director of nursing (Tr. 776):
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Basically then, in getting the hospital's pose- Solicitations
tion, the hospital's understanding of the rights of the
employees in getting these things across to the em-
ployees, the coordinators, the clinical supervisors,
administrative supervisors , yourself, all were a part
of a team . Would that be a fair statement?
A. It's a fair statement, sure.
Shuck's conduct towards the employees on matters
dealing with the union campaign must therefore be con-
sidered to have been within the scope of her authority as
agent of Respondent within the meaning of Section 2(13)
of the Act.
Althea Spaw
The assistant director of staff development coordinated
and supervised the educational programs and the teach-
ing of nurses in the Hospital. She reported to the direc-
tor of nursing who, when evaluating the staff develop-
ment instructors , relied on the recommendations of the
assistant director . In this regard, it can be said that
Althea Spaw effectively recommended employees for
discipline or promotions. Although the record is other-
wise vague on Spaw's supervisory functions, the evi-
dence summarized above suffices to establish Spaw's su-
pervisory status within the meaning of the Act.
Judy Triplett
This employee was the staff development instructor
whose job functions were similar to those of the assistant
director of staff development. Her job description in-
cludes references to assisting in the supervising of activi-
ties of educational programs and teaching at the Hospi-
tal, but otherwise, the record is vague about the supervi.
sory authority of this position. I, therefore, find that the
General Counsel has failed to establish Triplett's status
under Section 2(11) of the Act. With respect to Section
2(13) of the Act, the record shows that she was among
those employees who attended management meetings re-
lating to the Union and who distributed literature on
behalf of the Hospital to the employees. Her agency
status was otherwise vague and did not show whether
she was considered a part of the "team" who would rep-
resent the Hospital's position vis-a-vis the Union. Ac-
cordingly, I find that this employee was neither a super-
visor nor an agent within the meaning of the Act.2
Independent Violations of Section 8(a)(1) of the Act
The No-Solicitation and No-Distribution Policy
On June 8, 1979, Robert Mullin, administrator of the
hospital, sent a memorandum to all employees notifying
them of the attempt of the Union to obtain signed au-
thorization cards from the employees The letter set
forth certain other information and reminded the em-
ployees of the "No-Solicitation Policy" and that "Solici-
tation by employees is prohibited during working time,"
referring in the personnel policies handbook which pro-
vides as follows (G.C. Exh. 98):
9 In view of this finding, I have omitted a discussion of any alleged
misconduct involving this employee
An employee may not solicit for any purpose or
distribute any material, in patient care areas, work-
ing area and public areas or other areas of the hos-
pital's premises where visitors or patients are per-
mitted and may be present prior to admission,
during their confinement or treatment and during
discharge.
Employees of the hospital are also prohibited
from soliciting or distributing any materials on
working time.
Violation of the above policies by an employee of
the hospital will subject such employee to discipli-
nary action, including possible termination of em-
ployment.
Persons who are not employees of the hospital
are strictly prohibited from soliciting for any pur-
pose or distributing any materials at any time on the
hospital's premises , such prohibition including but
not limited to, solicitation for a raffle, charity drive,
or proposing and/or procuring membership in any
organization
Any employee who believes that either a non-
employee or an employee of the hospital is engaged
in any of the activities described above shall notify
his or her supervisor immediately.
The General Counsel submits that this policy unlaw-
fully prohibited solicitation and distribution of union lit-
erature in the following areas of the Hospital: the first
floor entrance, lobby, adjacent corridors, the cafeteria,
and the gift and and coffeeshop, inasmuch as these areas
are not used for patient care.
Respondent argues that the Hospital's solicitation
policy was necessary for proper patient care and that, in
any case, it permitted "solicitation in the cafeteria, em-
ployee lounges and employee locker areas."
Although there is some evidence in the record that so-
liciting in the cafeteria was permitted, Respondent's writ-
ten policy expressly prohibited this activity in "other
areas of the Hospital's premises where visitors or patients
are permitted or may be present." The record shows that
the cafeteria was primarily used by employees and visi-
tors. For example, witness Doreen, Kukan who was thor-
oughly familiar with the Hospital, testified without con-
tradiction that 95 percent of the people in the cafeteria
were employees and about 5 percent visitors. Patients of
the Hospital were, however, not permitted in the cafete-
ria. This evidence was not disputed by Respondent. I,
therefore, find that the no-solicitation policy which on its
face prohibited soliciting in the cafeteria is unlawful.3
The Hospital also operated a combination gift and cof-
feeshop on the first floor of its facility. The evidence
shows that it is not used by patients but only by employ-
ees and visitors at an even ratio. Respondent, conceding
that inpatients did not frequent that area, nevertheless
argues that outpatients might be found there. According
to Respondent's testimony, "out-patients are free to go
a See Beth Israel Hospital v. NLRB, 437 U S 583 (1978), NLRB v Bap-
tist Hospital, 422 U S 773 (1979).
UNIONTOWN HOSPITAL ASSN. 1305
from one part of the hospital to the other, they frequent-
ly do use the gift shop for waiting." However, even Re-
spondent's version indicates that this area was totally un-
related to patient care, and that outpatients who were in
that area used it like visitors or employees. This is par-
ticularly so, because outpatients had their own lobby and
lounge. Again, it is clear that any ban on union solicita-
tion in that area would not interfere with patient care
and is therefore unlawful.
The record further shows that the first floor lobby ad-
jacent to the main entrance of the Hospital was another
gathering place for employees. Most of the employees
used that entrance to go to and to leave from work, so
that about 95 percent of the individuals present in that
area were employees during shift changes. At other
times, the lobby was Frequented by visitors and employ-
ees at an even ratio. Outpatients had their own lobby and
lounge, so that it is readily apparent that patient care at
the Hospital would not be affected by soliciting or distri-
bution activities of the Union in that area.
However, in disagreement with the General Counsel, I
would uphold the validity of the no-solicitation rule in
the corridors adjacent to the lobby. The record shows
that these corridors were used by visitors, employees,
and patients. Patients, for example, might have passed
through these corridors on their way to the X-ray room
or the emergency rooms. Although only a few patients
may have had occasion to pass through these corridors,
it is conceivable that union solicitation in these corridors,
including the area where the employees' timeclock was
located, might have been disruptive to patient care.
Respondent's assertion that union solicitation was per-
missible "in the cafeteria and the employees' lounge and
locker areas" was not supported by the experience of
Connie Gallo-Malik, a registered nurse employed by the
Hospital She testified that during her luncheon with sev-
eral other employees, including Connie Gower, Sandy
had warned them that the Hospital's solicitation policy
applied to the cafeteria. Accordingly, although some em-
ployees may have been told that solicitation in the cafe-
teria and the lounge was permitted, the policy was not
uniformly applied. For the foregoing reasons, II find, that
Respondent's no-solicitation policy, as it applied to the
main lobby, the cafeteria, and the gift shop, unlawfully
interfered with the Section 7 rights of the employees in
violation of Section 8(a)(1) of the Act.
Threats of Disciplinary Action for Violations of this
Policy
The Hospital reminded its employees on several occa-
sions to comply with its no-solicitation rule. For exam-
ple, during at least one of three meetings in June 1979 of
housekeeping employees, Dolores Petlevich, acting coor-
dinator for housekeeping, told the employees that if they
solicited in the halls, or places other than the cafeteria,
or the employees' lounges, they could be sent home.
On another occasion, on June 27, three employees,
Viola Swetz, Renee Kovach, and Leslie Giachetti were
leafletting at the main entrance of the Hospital. Dolores
Petlevich initially told them that they were not allowed
to solicit in the lobby. When the employee refused to
leave, she contacted Executive Director Robert Mullen
who also informed them to leave because they were not
allowed to solicit in that area.
Finally, in late June, Thelma Sandy, director, of nurs-
ing, told two nurses, Connie Malik and Connie Gower,
while they ate their lunch in the cafeteria, that their so-
licitation in the gift shop was not permitted under the
Hospital's solicitation policy, and that such conduct was
grounds for dismissal.
Because these incidents show that the Hospital threat-
ened employees with disciplinary action for violation of
an unlawfully broad no-solicitation policy, Respondent
violated Section 8(a)(1) of the Act.
Discriminatory Enforcement of the Dress Code
Through the efforts of Thelma Sandy, the Hospital
had established a dress code for its employees . It is con-
tained in the personnel policies handbook (G,C. Exh. 98)
and provides as follows:
All employees shall wear such identification badges
as may be required'by the hospital. Watches, wed-
ding rings , engagement rings, school ' rings, profes-
sional service pins, and small stud -type earrings may
be worn by employees. Other clips, bows, ribbons,
badges, buttons , insignias , jewelry or other decora-
tion shall not be worn or displayed by any hospital
employee at anytime while in appropriate uniform
or on hospital premises.
In accordance with the hospital's policy and pur-
pose to maintain a professional appearance in keep-
ing with hospital work, hospital staff members must
dress in a manner and custom which establishes in
the minds of patients , visitors , and the public a con-
fidence and respect for the institution and its
people.
In departments where specific uniforms or a specific
manner of dress is prescribed , such uniforms must
conform to the 'established type, color, etc., as set
forth in departmental policy.
In the form of testimony, and stipulations between
counsel, the record is undisputed that in December 1979
management frequently ordered its employees who wore
union buttons to remove them because the wearing of
such buttons violated the dress code referred to above.
Many employees nevertheless continued to wear them,
but several employees removed the buttons. Several of
Respondent 's supervisors also reminded the nurses that
the dress code provided for disciplinary action for infrac-
tions of the code
Because the Hospital tolerated the wearing of other in-
signia, it stands accused of discriminatory enforcement of
the dress code. For example, the testimony shows that
some employees before December 1979 and thereafter
have routinely worn Christmas or Easter pins and deco-
rations. At the time of the Super Bowl they frequently
wore football insignia.
From the foregoing, it is clear that Respondent unlaw-
fully discriminated in the enforcement of the dress code
by prohibiting the wearing of union buttons while toler-
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ating the wearing of other insignias . Accordingly, I find
that Respondent violated Section 8(a)(1) of the Act.
Threats of Disciplinary Action for Violation of
Dress Code
Not only was the dress code enforced in a disparate
manner,, Respondent threatened its employees with disci-
plinary action if they refused to remove the union insig-
nia. For example, on December 12, Helen Rutter, clinical
nursing supervisor, delivered a short lecture to employ-
ees Viola Swetz, Renee Kovach, and Debbie Mihalko
about the wearing of "any buttons or paraphenalia" on
their uniforms. She referred them to the policy book and
said that it provided for disciplinary action. The employ-
ees retorted that they had a right to wear these buttons
and generally refused to follow the request. She then
closed the argument by stating; "If you girls do not
remove those buttons you will be subject to disciplinary
action " A similar incident occurred between Supervisor
Arlene Komar and Debbie Bartok.
Although Respondent did not in fact take any discipli-
nary action, these statements were clearly made in a co-
ercive environment and therefore violated Section 8(a)(1)
of the Act.
Surveillance of Union Activities
The record is clear, and Respondent does not really
dispute that certain members of management openly ob-
served the Union's leafletting activities on several days in
June and December 1979. For example, on June 18, early
in the morning, employees Giachetti, Johnson, Polkabla,
and Bungard were distributing union literature in front of
the main entrance of the Hospital, and saw Administra-
tor Mullen in front of the building walking back and
forth. He remained there for the entire 2 hours Also ob-
serving the leafletting for at least 1 hour that day were
Charles Ramage, Delores Petlevich, and James Mat-
thews, all supervisors in Respondent's housekeeping de-
partment. Furthermore, Supervisors Mary Bittinger and
Margaret R ishel were seen inside the building looking
out at the leafletting activities of these employees.
During the afternoon of the same day, Lawrence Rossi,
assistant executive director, as well as Thelma Sandy, di-
rector of nursing, watched as 2 employees were on the
sidewalk and about 10 employees were distributing union
literature in the parking lot.
On June 27, three employees who were leafletting
inside the Hospital at its main entrance were observed by
Mullen and Petlevich and told to leave the building.
Again, on December 12 and 13, when the Union was en-
gaged in leafletting at the outside of the main entrance to
the Hospital, Mullen and Supervisors Jane Shuck and
Althea Spaw watched the activity at various times.
The General Counsel submits that this conduct
amounts to unlawful surveillance, particularly when it is
considered that Respondent was not a casual observer of
these activities but fully intended to be present during
the employees' union activities. I agree with Respondent,
however, that this conduct was not tantamount to un-
lawful surveillance, even though Respondent's presence
was not necessarily the result of its normal business ac-
tivity. The union activity at issue was conducted openly
and on Respondent's premises. G. C. Murphy Co., 216
NLRB 785 (1975); Larand Leisurelies, 213 NLRB 197
(1974).
The General Counsel argues further that Respondent
was observed taking notes while watching the leafletting
activities and that supervisors were seen accompanying
employees to their cars or redirecting them to other
exists within the Hospital. However, the record does not
show that the taking of notes by supervisors was in any
way related to the leafletting activities; moreover, as
long as the union activities were conducted openly, the
taking of notes cannot be regarded as coercive or intimi-
dating. Neither can I find any evidence of coercion or
interference when Respondent directed employees to
certain exists within the Hospital or accompanied several
to their parked cars. There is no reliable evidence that
Respondent thereby intended to insulate these employees
from the union activity. Accordingly, I dismiss the alle-
gation that Respondent thereby violated Section 8(a)(1)
of the Act.
Creating the Impression of Surveillance
On the basis of a variety of incidents, the General
Counsel alleges that Respondent unlawfully created the
impression that it had engaged in surveillance of the em-
ployees' union activities. For instance, Michele Rankin
testified about a conversation with Charlotte Frank-
houser, a supervisor, who was standing near the nurses
station in late June with other employees, including
Maxine Goodwin a unit clerk. Frankhouser indicated
that she knew that Rankin had signed a union card and
that she could have it returned from the Union by writ-
ing a letter. Frankhouser did not deny that such a con-
versation took place, and Goodwin, although testifying
that she did not hear it, may not have been able to over-
hear it. In any case, Rankin's testimony impressed me as
forthright and credible.
In November 1979, Kristie Cipcic, a nurse, was called
to the office of Betty Coppolino concerning her work
schedule. Coppolino informed Cipcic at that time that
the Hospital was worried about her and her sister be-
cause they believed that they had been wined and dined
by the Union. In fact, however, Cipcic had been out to
dinner the previous night with several friends. This
remark conveyed the notion that management was keep-
ing an eye on employees' union activity.4
In the latter part of October, Irene Adams, a regis-
tered nurse, entered the anesthesia office. Several nurses
were discussing the Union with Chief Nurse Bernadette
Gabadlo and asked whether the Hospital maintained a
list of those who had signed union cards. Gabadlo re-
plied that those who had signed cards could be dismissed
at any time simply by finding fault with them. During a
subsequent conversation in November 1979, at an inserv-
ice meeting with the nurse anesthetists, Dr Arthur
Varga, chief anesthesiologist, remarked that the signing
of union cards became a matter of record. The evidence
° Although Coppohno denied having made this remark, I credit the
forthright testimony of Cipcic
UNIONTOWN HOSPITAL' ASSN. 1307
does not show the context in which Dr. Varga's remark,
or Gabadlo's statement were made. I, accordingly, find
that these incidents were too vague and uncertain to
draw any conclusions of impropriety.
In June 1979, Supervisor Linda Hess told several em-
ployees, including Richard Myers, that they were not al-
lowed to solicit at the nurses station, and that coordina-
tors had been instructed to watch for anyone who was
soliciting or who was involved with union activities.
This remark by Supervisor Hess clearly conveys to the
employees the impression that their union activities were
under surveillance. I, therefore, find that Respondent
violated Section 8(a)(1) of the Act by creating the im-
pression among some employees , such as Rankin, Cipcic,
and Myers, that their union activities were under surveil-
lance.
Physical Interference with Leafletting
On June 18, when several employees were leafletting,
Respondent's security guard, Frank Adams, attempted to
prevent employee Vanessa Wilson from passing out leaf-
lets to employees. She testified as follows about the inci-
dent (Tr. 303-304):
Okay, I was on the ramp area leading into the
hospital and he approached me and said, you're not
allowed to be here, you shouldn't get any closer to
the hospital, don't you see the sign, you'll get in a
lot of trouble to be here, and I informed him I
knew my rights, I was allowed to be there and at
which point, I was walking closer to the hospital
and he stepped in front of me, like bodily barring
my way from getting any closer.
And at anytime would try to leaflet to try to
hand somebody a leaflet, I was eight months preg-
nant at the time, it was a little bit awkward, and he
would step right in front of me and I kept telling
him, you know, I'm allowed to be here and he said
well, no, you're going to get in trouble, don't be
here, you better get out of here right now.
Although the security guard was adamant in stopping
this activity, Wilson persisted and continued the leaflet-
ting. Adams also told other employees, including Con-
setta Polkabla and Leslie Grachetti, not to cross a certain
line in the sidewalk so as to keep the sidewalk open and
provide easy access to the Hospital. Although he may
generally have intended no more than to keep the ramp
entrance open for the free passage of the employees, he
clearly went beyond that intention in the case of employ-
ee Wilson. He physically attempted to bar her from her
leafletting activity in violation of Section 8(a)(1) of the
Act
Revocation of Union Cards
Supervisors Suzanne Rogish, Dolores Petlevich, and
Charlotte Frankhouser are alleged to have urged the em-
ployees to retrieve their signed union cards. The record
shows that Rogish met frequently with several employ-
ees to discuss the Union. Among the employees were
Sandra Rotharmel who, with employee Debra Harper,
had signed a union card. The record shows that both
employees subsequently informed Thelma Sandy that
they wanted to have their union cards returned. The evi-
dence does not show, however, whether Rogish in any
way had urged these employees to request the return of
their cards.
Dolores Petlevich similarly had numerous meetings
with her employees about the Union. Employee Larry
Johnson recalled that during one of those meetings, Pet-
levich told the employees that they could lose existing
benefits if the Union got into the Hospital, and that if
they had signed a union card and the Union would lose,
they could be fired . At a second meeting about the
Union, Petlevich again mentioned the adverse conse-
quences of union representation such as the loss of bene-
fits and further asked Johnson whether he was for the
Union. When he replied in the affirmative, she said that,
nevertheless , he could get his union card back if he
wanted to. Employee Larry Johnson also recalled that
Petlevich explained to the assembled employees in house-
keeping that their benefits would change and "that if the
hospital found out who had signed cards and the ones
that asked for them back , it couldn't be held against
them if they ask for them back."
Employee Michele Rankin testified as follows about a
conversation with her supervisor, Frankhouser, had with
her in June (Tr. 599):
Mrs. Frankhouser told me that she knew that I
signed a card and that if I wanted to get my card
back that I could write a letter to the Local Board
or to the hospital. I think I said I would. And she
said good for me because I wouldn't get fired like
the rest of them if they found out who all signed
the cards.
From the foregoing , it cannot be gainsaid that Super-
visors Frankhouser and Petlevich used considerable pres-
sure in suggesting to their employees to retrieve their
signed union cards, lest they wanted to jeopardize their
jobs. Under these circumstances, Respondent did more
than advise employees that they could revoke signed
union cards, they pressured the employees to do so. Such
conduct is violative of Section 8(a)(1) of the Act.
Unlawful Interrogation
The complaint alleges that Respondent's - employees
were subjected to unlawful interrogation by more than a
dozen supervisors. Respondent argues that the particular
hospital personnel against whom these allegations were
made had received detailed instructions from manage-
ment that they could not interrogate any employee re-
garding their union sentiments and, that in any case, the
Hospital could lawfully ask employees about the Union,
so long as there was no coercion or retaliatory motive.
Representative examples of record evidence on this issue
are as follows: In December 1979, Mary Ellen Bittinger,
a supervisor in the emergency department, pulled aside
Lisa Carozza, a staff nurse, as she walked into the utility
room. Bittinger asked her how she would be voting, to
which Carozza replied that she would be voting for the
Hospital This was the end of the conversation.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In November, `Betty Coppolino, assistant director of
nursing, had called employee Christy Cipcic into her
office to discuss her work schedule. During that conver-
sation Coppolinb asked whether Cipcic had received in-
formation concerning the Union and whether she had
any" questions concerning the Union. Cipcic simply an-
swered, "No."
Towards the end of November, Helen Komar , a super-
visor, had a conversation with Debbie Bartok, a staff
nurse, during a change in shifts. Komar stated that she
was surprised about Bartok's prounion sentiments and,
had she 'known about it before, she would not have
given her a reference to the nursing school . Lomar also
asked Bartok what she expected to gain from the Union
and why she wouldn't simply permit Sandy to decide
which improvements were necessary at the Hospital.
In late June or early July employee Janet Gates
Payton was at her duty station in the pharmacy when
she overheard Loretta L'Attrellit, Respondent's chief
pharmacist , converse with several employees , including
Sharon Strickler. L'Attrellit called Strickler into the
office to discuss a bill and then asked Strickler whether
her sister, a nurse's aide at the Hospital, "was for the
union, if she had joined , if she went to, any meetings, if
she knew anything about the meetings, and what. hap-
pened." Strickler said that she did not know whether her
sister was for the Union, but that she had attended sever-
al meetings . L'Attrellit also asked another employee,
Barb Bacha, if she knew anything about picket lines or
heard any rumors.
In June, Supervisor Dolores Petlevich asked employee
Larry Johnson, during one of the numerous meetings
which she had conducted with her employees about the
Union, whether he was for or against the Union. When
he replied that he was for the Union, she asked him to
reconsider his opinion.
In November, Helen Rutter, a supervisor, called
Debbie Sadosky into her office and gave her some litera-
ture concerning the Union. Rutter asked her if she was
for or against the Union. Sadosky replied that she was
neutral. Rutter instructed her to read the literature and
reminded her that even with the Union the employees
would not get what they wanted but that they had to
bargain for the benefits. Rutter had a similar conversa-
tion with employee Cipcic. She supplied Cipcic with
written material dealing with the Union and then asked
her how she felt about the Union.
Similar incidents in which supervisors inquired about
their employees' union sentiments occurred involving Su-
pervisor Elizabeth Selep with employees Garnet Wood-
ward, Arendes Budinsky, and Joyce Walters, Supervisor
Althea Spaw with employee Marie Medvitz, and Super-
visor Mary Ann Williams with employees Viola Swetz
and Renee Kovach.5
To determine whether these incidents of interrogation
rose to the level of unlawfulness under Section 8(a)(1) of
the Act, it is necessary to weigh the surrounding circum-
stances , including time, place , personnel , and information
sought for any degree of coercion.
5 Detailed findings concerning their interrogations of employees would
be repetitious
In the instances just summarized , it is clear that the in-
terrogation was usually conducted by the employees' im-
mediate supervisors. Moreover, the conversation oc-
curred during the height of the Union's campaign, and
the place of interrogation was the Hospital, often the
office of the supervisors The information sought during
these inquiries was the particular employee 's union senti-
ment. Considering that Respondent interfered with the
Section 7 rights of employees in other respects during
the crucial time of the union campaign , there is little
doubt that these interrogations were coercive and, there-
fore, violative of Section 8(a)(1) of the Act.
Threats of Discharge
The complaint next alleges that Respondent threatened
its employees with discharge because of their union ac-
tivities . Respondent , characterizing the record testimony
as "sketchy" on this issue , also points to instructions
issued to employees . The instructions stated in substance
that Federal law prohibits an employer to mistreat any
employee for their union feelings.
The relevant record evidence can be summarized as
follows: In late October or early November 1979, Marjo-
rie Omatick, a registered nurse, spoke with Trudy Eden-
field, a supervisor, about the Union. In that connection
Edenfield pointed out that unionization at the Hospital
might have adverse consequences for the employees. She
cited as an example a former employee by the name of
Tony, who had signed a union card during a previous
union campaign. Edenfield told her that this employee
now worked elsewhere.
In July 1979, Consetta Andrea Polkabla, employed as
a nursing assistant at the Hospital, had a telephone con-
versation with her friend, Frankhouser's daughter.
Frankhouser interrupted the conversation between her
daughter and Polkabla and told the latter that if she
"didn't want to get into any kind of trouble or being
fired," she should go to Sandy and request the return of
her signed union card Polkabla replied that she was enti-
tled to her own opinion, that she had made the right de-
cision and that she would not change her mind. Another
incident involved Frankhouser and employee Rankin.
Frankhouser told Rankin that, she knew of her signed
union card and urged her to write a letter to the Hospi-
tal to retrieve the card. Rankin indicated her cooperation
and Frankhouser assured her that she would not be fired.
Near the end of the summer, Supervisor Grace Ro-
baugh had a conversation about the Union with Janet
Scerba, a registered nurse. According to Scerba, there
were frequent discussions with Robaugh, when she dis-
tributed leaflets about the Union. During one of these
conversations, which occurred after Robaugh had just
returned from a meeting, she told her that Mrs. Sandy
had said that the girls who had supported the Union
would no longer have a job after the election was over.
During one of several meetings which Supervisors
Petlevich, Matthews, and Ramage had conducted with
employees in the housekeeping department of the Hospi-
tal in June 1979, they told the approximately 30 assem-
bled employees that those who had signed union cards
would be fired after the Union lost the election. When
UNIONTOWN HOSPITAL ASSN.
one of the employees suggested that such action was ille-
gal, Matthews replied that an employer would always be
able to find a reason to fire an employee.
In most of the incidents , summarized above, threats to
discharge employees for their union support are readily
apparent . Moreover , I find it implausible that the em-
ployees had simply received an erroneous impression
from the campaign literature which had explained the
right of an employer to replace an economic striker. The
record is clear that threatening statements were made by
supervisors which had a coercive effect on the employ-
ees. Respondent thereby violated Section 8 (a)(1) of the
Act.
Threats of Loss of Benefits
According to the complaint , more than a dozen super-
visors threatened their bargaining representative. Re-
spondent does not really dispute that supervisors had
conversations with the employees in which they dis-
cussed the Union and the possible loss of benefits , But, it
is Respondent 's position that supervisors legitimately ex-
plained to the employees the realities of the bargaining
process in which no one , neither the Union nor the Hos-
pital, could predict what a contract might ultimately
contain . It could, according to the Hospital , contain pro-
visions in which their "wages, benefits and working con-
ditions could be the same , higher or lower than what
they are now" (G.C. Exh. 135 , R. Exhs. 11 , 14). The
issue therefore is whether the Hospital conveyed to its
employees this message or one which threatened a loss
of benefits.
In this connection Carolyn Scheggia , a registered
nurse , testified that, in mid-November, she had separate
conversations about the Union with several supervisors,
including Mary Ellen Biittinger , an administrative super-
visor . Scheggia, who had been called into Bittinger's
office, testified as follows about the conversations (Tr.
341):
She called me into her office, I suppose it was
mid-November towards the end of November and
ask me to sit down. She wanted to discuss the union
with me and she expressed her opinion that she
thought the union was not a good idea, that we
could solve the problems at Uniontown Hospital
without involving the union and that did I realize
that if the union did come in that we would lose all
of our now existing benefits and had to start back
over-start back at the bottom-at square one and
start over again trying to reach the benefits that we
now had at the hospital.
When asked during her cross-examination whether Bit-
tinger had talked with her with the help of hospital liter-
ature or otherwise explained the process of negotiations,
Scheggia replied that during a one-to-one conversation
without any paper Bittinger had said that they would
lose their existing benefits and that they would "have to
start from square one, all over again." (Tr. 348.) Bit-
tinger made similar statements to Faith Elaine Thomas,
also a nurse. Specifically, she said to Thomas that, if the
Union came in, their raises and benefits would be discon-
1309
tinned until the Union could negotiate a contract, a proc-
ess which could take months or years.
Sometime in October, Supervisor Loretta DeBord told
employees Viola Swetz and Doreen Kukan on separate
occasions that if the Union came in they would lose all
of their benefits and that the employees would have to
pay for their own insurance.
Garnet Woodward testified that 3 or 4 weeks before
the election, Supervisor Agnes Domaracki asked her
what she hoped to gain by getting the union, and if she
knew, "that if the union got in that [they] would lose all
[their] benefits and start with zero." She further said that
they would lose the Blue Cross insurance coverage and
until they were able to obtain a new contract; even then,
their insurance would not be as good as what they had.
Similarly, Trudy Endenfield and Althea Spaw told
employees Suzanne Schuellar at various meetings, prior
to the election, that she could lose benefits such as her
Blue Cross and Blue Shield insurance, and that she
would have to accept inferior insurance provided
through the Union.
In early December, Chief Nurse Anesthetist Berna-
dette Gebadlo had a conversation with several nurse an-
esthetists, including Dorothy Discovich and Carol Pa-
laisa, and stated that they would lose all insurance bene-
fits and start out like new employees if the Union were
selected by the nurses.
Similar conversations in which supervisors told their
staff that they would lose benefits if the Union were se-
lected by them were held by the following supervisor:
Arlene Komar in early November with employees Viola
Swetz and Doreen Kukan; Dorlores Petlevich in June
with about 30 housekeeping employees, including Larry
Johnson, Randy Leichliter, and Keith Robbins; Grace
Robaugh in December with employees Elaine Mesaros
and Janet Doman; Suzanne Rogish in November or De-
cember with employees in her unit, including Sandra
Rotharmel, Connie Malik, and Lanna Kapalko; Helen
Rutter in October with employees Debbie Mihalko and
Debbie Bartok and in November with Joyce Bungard
and Renee Kovach; Elizabeth Selep in December with
employees Garnet Woodward; Olive Semans in Decem-
ber with employees Viola Swetz, Susan Carbonara,
Renee Kovach, Leane Grote, Debbie Mihalko, and
Joyce Bungard; and Althea Spaw in November with
Janet Doman.
At first blush, Respondent's argument appears plausi-
ble, because some of Respondent's campaign literature
adequately presented the notion that a union would have
to bargain with the Hospital and the result of which
could be better, worse, or the same. However, all em-
ployee witnesses, in spite of vigorous cross-examination
by counsel, unequivocally recalled the same statements
made by their supervisors, i.e., that the advent of a union
would deprive them of existing benefits-at least tempo-
rarily during the period of negotiations. The consistent
and credible testimony clearly established that manage-
ment had conveyed to the employees a distorted and
false message of the consequences of unionization at the
Hospital. Such conduct created a coercive atmosphere
and violated Section 8(a)(1) of the Act.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Threats to Withhold Benefits
Of the four supervisors alleged to have violated Sec-
tion 8(a)(1) of the Act by threats to withhold benefits,
the General Counsel and Respondent agree that Betty
Coppolino was not involved in such conduct. However,
Grace Robaugh, a supervisory coordinator, had a con-
versation with Elaine Meseros, an employee, in early De-
cember which is alleged as unlawful. Robaugh stated
that a pay raise had already been "approved by the
Board, but if the union won the election, the union was
to be in hospital, that that raise would be frozen."
Similarly, Supervisor Helen Rutter told employees
Diane Oravets in November at •a meeting with two or
three staff nurses "that if the union got in, that the six
month wage increase would be frozen until a contract
could be agreed upon." And sometime in the fall of 1979,
Chief Anesthesiologist Dr. Varga was alleged to live
made-similar statement to a group-of nurses. However, in
view of his illness at that time and the lack of corrobora-
tive testimony of others in that group, I have not cred-
ited the testimony on this incident.
In any case, on the basis of the two incidents above, I
find that Respondent violated Section 8(a)(1) of the Act.
Whether or not the Hospital actually had or did not
have any plans for any pay raises is not relevant to the
consideration of the coercive nature of these statements,
for any statement threatening reprisals for an employee's
union activities is objectionable.
Threats of More Onerous Working Conditions
The only evidence in the record on this issue are state-
ments made to employees in November by Supervisory
Mary Ellen Bittinger. She had said that if the Union
came in, the employees could no longer enjoy the same
relationship with her, that they could no longer come to
her with their problems, and would have to go through
other channels or to the Union with their problems.
Such statements, even considering all the surrounding
circumstances, did not amount to any threats and certain-
ly not any threats of more onerous working conditions.
I, therefore, dismiss this issue.
Threats to Blackball Employees
According to the testimony of Julia Town, a former
staff nurse at the Hospital, Trudy Edenfield, the night su-
pervisor, talked to her one night in November. Town
had told Edenfield that she was concerned about a
rumor that any nurse involved with the Union would be
laid off. Edenfield replied, "Judy, if you plan on staying
in this area do not vote for the union, or sign a union
card." Town further indicated that she had moved away
from the Uniontown area because of this incident. Eden-
field testified that she did not recall any specific conver-
sation with Town, except that in reply to her expressed
concern about the rumor, she simply replied that she
could not be fired under the law. Edenfield, however,
did not deny having made the statement attributed to
her. Accordingly, I credit Town's testimony.
In the absence of any evidence of actual "blackball-
ing" by the Respondent or other surrounding circum-
stances, this statement by Edenfield is too vague and am-
biguous to raise a violation of Section 8(a)(1) of the Act.
Threats of Layoff
Employee Judith VanKirk testified as follows about a
conversation with Supervisor Grace Robaugh (Tr 495):
Miss Robaugh was given a hand out from the ad-
ministrator and during the conversation she said
that if anyone would go out on strike for the union,
the hospital could say that they didn't need you at
that time and lay you off for at least a year.
The General Counsel, relying on this testimony,
argues that Respondent threatened layoffs because of the
union activity of its employees. Respondent questions the
testimony and asserts that the witness must have been re-
ferring to a "fact sheet on the effects of strikes" distribut-
ed by the Hospital to supervisors as campaign material.
(R. Exh. 12.) I agree with Respondent. The witness re-
membered little else of the contents of the conversation.
Moreover, she recalled that Robaugh had a handout
given to her by the administator. In the literature, Re-
spondent refers to strikes and that in the event of a
strike, an employee "can be permanently replaced. Fed-
eral law allows an employer to permanently replace any
economic striker. The striker can return to work only if
there is an opening." It is therefore plausible that the
witness erroneously recalled the substance of that hand-
out.
Threats Not to Grant References
In late November or early December, Arlene Komar,
a supervisor, talked to Debbie Bartok, a nurse, about the
Union while Bartok and another nurse, Debbie Mihalko,
were signing a letter in support of the Union. Komar
stated that had she known that Bartok was for the
Union, she would not have given her a reference to the
Uniontown Hospital School of Nursing. Both employees
recalled the substance of that conversation. It was an ob-
vious indication to the employees that Bartok would
have withheld such references in the future on the basis
of their union sentiment. Such a threat violates Section
8(a)(1) of the Act.
Threats of Unspecified Reprisals
The record contains the testimony of Mary Ellen Di-
Mario on this issue. She testified that a few days before
the election, Supervisor Lois Monahan had confronted
her and another employee and said that Mrs Bittinger
was upset and angry with the employees for wearing
union buttons; therefore, Monahan had asked them to
remove the buttons at least in her presence. Both em-
ployees had a brief discussion and decided to remove the
buttons for, as long as_ Bittinger was in their presence and
to put them back on when she was absent
This evidence is plainly insufficient upon which to
base a finding of violation of Section 8(a)(1) of the Act.
UNIONTOWN HOSPITAL ASSN.
Futility of Soliciting the Union
According to the complaint, several supervisors in-
formed the employees that it would be futile for them to
select the Union, since the Hospital had no obligation to
bargain with the Union. Respondent argues that the testi-
mony of these employees inaccurately reflects the actual
discussions which supervisors had with them and in
which hospital personnel simply discussed with the em-
ployees the process of collective bargaining.
The records contains the testimony of Carolyn Scheg-
gia who recalled that Supervisor Mary Ellen Bittinger
had a conversation with her in November. During the
half-hour-long conversation Bittinger explained the proc-
ess of negotion and said she did not feel that the Union
could represent them, and that there was no guarantee
that the Hospital would have to bargain with them or
would have to sit down and negotiate with them. Bit-
tenger's recollection of the conversation was that she
talked to the employees about the various possibilities
which could result from negotiations with the Union; for
example the employees could keep the benefits which
they had , or they could obtain more benefits or even lose
some However, Bittinger did not deny having made the
statement attributed to her. I accordingly credit Scheg-
gia's account of the conversation.
A similar conversation took place between Supervisor
Dolores Petlevich and an assembly of housekeeping em-
ployees. Employee Larry Johnson who had attended
that meeting testified Petlevich told the assembly that
even if the Union won the election, the Hospital did not
have to bargain with the Union. Although other employ-
ees who had attended the meeting testified in this pro-
ceeding, only Johnson recalled this remark. In view of
the absence of any corroborative evidence, and because
Petlevich denied having made this remark, I discredit
Johnson's testimony on this issue.
However, several employees testified that Supervisor
Helen Rutter informed them that even if the Union won
the election, the Hospital was under no obligation to bar-
gain. Doreen Kukan and Leane Grote testified that in
November Rutter told them that the Hospital was under
no obligation to bargain. Renee Kovach also recalled
during her testimony Rutter's statement that the Hospital
would not have to bargain with the Union even if it won
the election. Employee Debbie Mihalko testified that
Rutter talked to her in a conference room and, among
other things, said that the Hospital did not have to bar-
gain with the Union.' Although alleged, there is no evi-
dence that Dr. Varga made any such statement to em-
ployees.
On the basis of the foregoing testimony, it is clear that
Supervisors Bittinger and Rutter informed the employees
that it would be futile; for them to select the Union as
their bargaining representative. Accordingly, I find that
Respondent violated Section 8(a)(1) of the Act.
Soliciting Complaints and Grievances
To the charges that Respondent unlawfully solicited
the grievances of its employees, Respondent asserts that
employee meetings occurred prior to the commencement
of the Union's organizational drive and that no such em-
1311
ployee meetings occurred thereafter. The record shows
as follows: During November and December, Supervisor
Agnes Domaracki and Betty Zawlensky "met with the
employees to discuss the union on a daily basis. Regis-
tered nurse Coretta Veil recalled in her testimony that
they would ask the employees what their problems were,
and what they were unhappy about.` In response, Veil
suggested that the Hospital should pay "time and a half
for holidays," grant more weekends off, and better vaca-
tion times . Domaracki promised that "she would take
them to Mrs. Sandy and that right now they couldn't
promise [them] anything but . . . depending on how it
comes out they would try to settle our problems." Zaw-
lensky replied that she would take their "problems to
Mrs. Sandy and they would try to do something after
the election was over."
In December 1979, Linda Hess, a supervisor, called
nurse Frances Jones into Mrs. Selep's office and talked
to her about the Union for approximately 1 hour. Hess
asked her what some of her "complaints or gripes" were
concerning the Hospital. Jones replied that she was dis-
satisfied with the vacation time and sick leave policies.
Asking whether she really felt that a union would help
solve these problems , Hess said that she could not make
any promises , but that Mrs . Sandy had become aware
that the nurses had problems and that after the election
she might look at these problems to see what could be
done about them
In late November or early December, Debbie Bartok,
staff nurse , had a conversation with Arlene Komar, a su-
pervisor . She initially expressed surprise at Bartok for
her union support, and then asked what Bartok expected
the Union to accomplish for her and why she could not
let Sandy make the decisions and improvements for the
Hospital. Bartok replied that she had been there for over
a year and that "things were still the same , things were
still pretty bad."
Helen Rutter called employee Debbie Sadosky ' into
her office in late November and talked about the Union.
Sadosky told her that the Hospital had some problems,
mainly with staffing and if these problems could not be
solved, she would vote for the Union. Rutter replied that
the employees should "give the hospital a chance to
work out its problems."
Thelma Sandy had several encounters with employees
According to the testimony of Sonja Domen, a regis-
tered nurse , Sandy met with the nurses about 1 o'clock
in the morning and for more than an hour talked about
the Union. she stated that she had been unaware of their
problems, and that she was sorry about it. She assured
them that her door was always open, and that they
should feel, free to "go to her with any gripes," or if they
wanted to get off the night shift for any reason. Janet
Kremposky, another nurse, testified that the in October
Sandy met with a group of 25 nurses and asked them if
they had any complaints or gripes. The employees listed
certain problems with staffing, lockers, parking, and the
lack of a refrigerator for their sandwiches. Although she
did not respond specifically to each of the problems,
Sandy stated that she wanted their suggestions on how
these problems could be solved without involving a third
1312 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
party, and that she was disappointed that they turned to
somebody else without giving the Hospital a chance, On
Thanksgiving Day, Sandy met with four or five employ-
ees for about 30 or 40 minutes. Again, Sandy asked them
what particular problems they had. The group men-
tioned problems concerning vacation time, sick leave,
and the lack of adequate parking. Sandy responded that
the Hospital was unable to correct these problems imme-
diately, but that it could go to work on these problems
to solve them after the union campaign.
Mary Ann Williams, a supervisor, had a conversation
about the Union in late November with Carolyn Scheg-
gia, for about an hour. Williams asked Scheggia what the
employees expected from the Union and what the Union
could accomplish for them that the Hospital could not.
Scheggia mentioned several topics such as pay, benefits,
and tuition reimbursement. Williams replied that the em-
ployees should -give the Hospital another chance, because
it was trying to remedy the situation.
From the foregoing, particularly the discussions initiat-
ed by Supervisors Domaracki, Zawlensky, Hess, and
Sandy, it is clear that Respondent went to considerable
efforts to provide a forum in which the employees were
able to vent their concerns and discontent. In some in-
stances, management made implied promises to correct
any existing problems following the union election. Re-
spondent's conduct was not a mere continuation of a
longstanding practice of grievance discussions between
management and employees. I, accordingly, find that Re-
spondent violated Section 8(a)(1) of the Act.
The Granting of a Pay Raise
During the hearing, the General Counsel amended the
complaint to allege that a wage increase, effective July 1,
1980, for all hospital employees constituted a violation of
Section 8(a)(1) and (5) of the Act, on the theory that it
was designed to dissuade the employees from any further
union activity and because it was unilaterally granted at
a time when Respondent was under an obligation to bar-
gain.
Testimony convincingly established that this pay raise
amounted to approximately 18 percent. Employees Susan
Carbonara and Renee Kovach testified that on July 1,
1980, they received an 8-percent pay increase and a 10-
percent cost-of-living increase. Indeed, Respondent con-
cedes that the Hospital decided to grant a cost-of-living
increase of 10 percent of the entry rate and a general
wage increase of 8 percent of the entry rate which aver-
aged 14.83 percent for all hospital employees. The size of
such a pay raise was unprecedented, for the record
shows that prior raises were substantially smaller. For
example, the 18-percent raise amounted to $1.04 per hour
for a general duty nurse, whereas raises in prior years
generally ranged from 15 cents to 30 cents an hour.
Moreover, the employees were informed that this wage
supplement should not be understood to bind the Hospi-
tal to pay similar increases in the future. Respondent,
however, was able to show through the testimony of the
director of human resources for the Hospital Council of
Western Pennsylvania that nurses' salaries in that area
had generally increased by $1 per hour or more since
January 1, 1980. The General Counsel's witness, Kay
Tillow, who testified about the wage rates at the Ali-
quippa Hospital, a similar institution as the Respondent,
conceded that the hourly pay for nurses, pursuant to a
union contract, provided for pay increases for 80 cents
between January 1 and August 24. Moreover, at another
hospital, the Community Mental Health Center in Beaver
County, Pennsylvania, the nurses and therapists were ex-
pected to obtain a raise in pay of $1.20 per hour within a
2-year period.
Considering that the rate of inflation was high during
that time, that the pay raise was announced in June,
almost 6 months after the election, and that pay raises
granted to nurses in other hospital in that area were
comparable, I cannot draw an inference that the 18-per-
cent pay raise at Uniontown Hospital was motivated by
union considerations. Accordingly, I cannot find that the
pay raise violated Section 8(a)(1) of the Act. As to
whether the pay raise was granted in violation of Section
8(a)(5) of the Act, it is necessary to determine the propri-
ety of a bargaining order under the circumstances of this
case.
The Union's Status Among the Employees
The Union had initiated its organizing campaign in an
attempt to be recognized as the bargaining representative
for all hospital employees, but it quickly perceived that
its greatest support was among the Hospital's registered
nurses. On October 3, 1979, it sent a mailgram to the
Hospital stating that it represented "a substantial majori-
ty of registered nurses" and requested a meeting for the
purpose of collective bargaining. On October 5, 1979, the
Union filed its petition with the NLRB's Region 6. The
appropriate unit was stipulated by the parties to be as
follows!
All full-time and regular part-time registered nurses,
including nurse practitioners, employed by Union-
town Hospital at its Uniontown, Pennsylvania, loca-
tion; excluding all othe employees, business office
clerical employees, instructors and other registered
nurses assigned to the School of Nursing, utilization
review nurses, certified nurse anesthetists, clinical
coordinators and guards, other professional employ-
ees and other supervisors as defined in the Act.
Relying on a stipulated exhibit of all nurses employed
at the Hospital on October 3, the General Counsel sub-
mits that the number of employees in the stipulated unit
totaled 176 (G.C. Exh. 101, Tr. 125). Respondent, rely-
ing on the order directing hearing on objections pursuant
to a Stipulation for Certification Upon Consent Election,
states that the number of eligible votes within the unit
was 171. I find that the stipulated list is an accurate ac-
count of the nurses employed at the Hospital and con-
clude that the unit composed of 176 employees.
The General Counsel further submits that on October
3, 1979, the Union had achieved majority status and ob-
tained 92 valid cards, and that during the period after
October 3, the number increased, reaching 98 on Nov-
meber 30, 1979. Insisting that the Union's bargaining re-
quest of October 3 constituted a continuing request
thereafter, especially since the Respondent had failed to
UNIONTOWN HOSPITAL ASSN. 1313
respond to the request, the General Counsel maintains
that a majority status after October 3 would still be valid
for purposes of a bargaining order.
Respondent has challenged the number of valid cards
based on the following four categories: cards whose sig-
natures were obtained by misrepresentation, cards which
had been revoked by their signatories, cards which were
executed after October 3, the date on which the demand
for recognition was made, and one card because it is not
in evidence More specifically, Respondent has chal-
lenged: 6 cards because they were signed after October
3, additional 6 cards because they had been revoked, 24
cards on the ground that signatures were obtained by
misrepresentation, and I card which is not in evidence.
With the exception of the "lost" card, Respondent has
not disputed the authenticity of the 97 cards in evidence:
Indeed, it had stipulated to the authenticity of 93 cards
(G.C Exhs. 6-97, 120; Tr. 117, 207), and the record con-
tains the undisputed testimony, of the signatures of the 4
remaining cards (G.C. Exh. 103, Tr. 209; G.C. Exh. 104,
Tr. 1096, G.C. Exh. 105, Tr. 355; G.C. Exh. 108, Tr.
993).
Alleged Misrepresentation of Purpose of Cards
Both sides agree that the standards governing the va-
lidity of union cards are stated in NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969), and Cumberland Shoe Corp,
144 NLRB 1268 (1963). According to the established
case law, cards are valid if the evidence shows that the
employees signed them on the -basis of clear and valid
language printed on the cards. If, however, a card solici-
tor has deliberately and clearly represented to the signa-
tory that he should disregard or forget the language on
the card, it will be invalidated. For example, if the repre-
sentation is made that, irrespective of the cards' lan-
guage, the only purpose of the card is for an election, it
cannot be counted as a valid card. In this regard, the to-
tality of circumstances surrounding the card solicitation
must convey the assurance to the card signer that this
card will be used for no purpose other than to get an
election. Otherwise, if in the course of solicitation ^an em-
ployee is usually told that an election is contemplated or
possible, then the evidence is insufficient to vitiate an un-
ambiguously worded card.
Prior to challenging each of the 24 cards, Respondent
has challenged the validity of 51 cards as a group be-
cause their purpose was misrepresented to the employees
on the first days of the campaign, beginning June 6,
1979. According to Respondent, union organizers Kay
Tillow and Jack Hustwit told the employees at the first
meeting that the union cards were not membership cards,
and that they would be used as a survey to see whether
it was worthwhile to continue with the organizational at-
tempt Testimony in this regard was offered by'employ-
ees Bertha Sproul and Linda Pecora. Pecora recalled
that Kay Tillow had told the assembled employees not
to worry about the cards "they're just for a survey to see
if it's worth it for the union to come in." Sproul testified
that Tillow and HustWit stated that cards were not mem-
bership cards but "they were just to see how many were
interested in the union, so that they could go on with the
campaign, or see if it was worthwhile." (Tr 1090, 1100.)
Kay Tillow denied ever having mad€ the statement
that union cards were not membership earls.- The sub-
stance of what the union organizers, Hustwi( and Tillow,
told the assembled employees appears in Tillow's testi-
mony as follows (Tr. 1297-1298):
Okay, well, Jack and I both spoke at that meet-
ing, at this point, because we had .such a large 'turn-
out, we decided that and because people were very,'
very enthusiastic that we would go^ further then
then to just discuss organizing committee , although
we did that too and go ahead and putout the cards
and let people begin a card campaign . So we dis-
cussed, we were seeking majority, we were seeking
sixty-five percent which was the figure that was
always used, we'd tell people we're building a union
and we're seeking to make it as strong as possible.
This is going to affect your ability to negotiate a
good contract, that we want sixty-five percent of
the people signed up, we wil then make a demand
for recognition to the hospital, should the hospital
refuse to recognize us, we would have the' right to
petition the Labor Board for an election.
If there was a majority in that election the man-
agement would have to recognize the union.
This testimony explains the employees' recollection of -
a "survey" and the significance of a union card in rela
tion to an election . Moreover , in considering this testi-
mony as well as the subsequent testimony by other card
signers, I am admonished of the, Court's statement in
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), "that
employees are more likely than not, many months after a
card drive and in response to questions by company
counsel to give testimony damaging to the union ." 'Fur-
ther considering that union organizers , such as Tillow
and Hustwit, were experienced and would not lightly
misrepresent the significance of a union card for fear of
thereby destroying their entire organizing effort ,' I reject
Respondent 's suggestion that the signatures on 51 cards
had been procured by misrepresentation during The first
few days of the campaign
The Individual Cards
General Counsel's Exhibit 12-Maxia Bartorona. This
witness testified that Susan Carbonara solicited her signa-
ture with the following explanation (Tr. 1126): "She said
that this card would ask management to have a vote for
an election, to have a vote for a'unton to "come in to sig-
nify that we wanted to vote fdr a union." When asked
whether she read the card , Bartorona said that she did,
but that Carbonara told her to disregard it.
In her testimony, Carbonara denied having made these -
representations, She testified as follows (Tr. 1287-1288):
"I told her too that this was showing interest for` the
union and that she had been, in signing the card, she was
showing that she was for the union and she supported
the activities that we were doing that it wasn't an appli-
cation for membership, if we showed enough support by
the majority of the cards."
I credit Bartorona's testimony and agree with Re-
spondent that Carbonara may have provided Bartorona
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with certain misinformation in obtaining her signature.
This invalidates the card.
General Counsel's Exhibit 13-Donna Benzio. The testi-
mony of this witness was somewhat uncertain about
what was said when her signature was solicited. She
stated that either Joan Bailes or Becky Nicewarmer ex-
plained the purpose of the card as follows (Tr. 1083):
"Yes when I received the card they had told me that it
meant that the union would come in and we would hear
what they had to say. They told me that the bottom line
on the card, to just disregard that or not to pay any at-
tention to it, but all my signature meant was that the
union would come in and we could hear what they had
to say."
In her testimony Becky Nicewarmer recalled soliciting
Benzio's signature . She recalled telling Benzio: "That she
couldn't get in trouble for signing it, and that the reason
for signing the card is to see if a majority of the people
wanted the union to represent them in an election."
Nicewarmer did not deny having made the statement to
Benzio, that she should disregard the card's language.
On the basis of the representation that she should dis-
regard the printed material on the card, as well as the
vague statement explaining the purpose of the card, I
conclude that Benzio signed the card on the basis of mis-
leading information, invalidating the card.
General Counsel's Exhibit 14-Patricia Bilan. Bilan tes-
tified that Kay Tillow and Mary Ellen DiMarco went to
her apartment to solicit her signature. At that time they
told her that she could "receive information from the
union and this would entitle an election to be held." She
further stated that she read the card, and that they gave
a few reasons to sign the card. She could not remember
any other details of what was said, but she was not told
to ignore the printed language on the card, nor that the
only purpose of the card was for an election or the infor-
mation. Tillow testified that she had represented to Bilan
the purpose of the Union, what it was about and that she
asked Bilan to join them and sign the card.
The evidence does not show that Bilan was misled
into signing the card. I, therefore, find the card valid.
General Counsel's Exhibit 15-Elaine Brownfield.
Brownfield received her card at a meeting conducted by
Tillow. According to Brownfield, Tallow said that the
cards were to be used "so that they could obtain a per-
centage, so that they could obtain a vote, that they were
not for membership, as the sentence on the bottom
read." Other union organizers told her that the card's
purpose was to obtain the vote, that it was "not really an
application for membership, that would not be in effect
unless the union won." Brownfield admitted having read
the card and having signed the card sometime after the
meeting.
Although Kovach and Carbonora also testified about
their conservation with Brownfield concerning the sig-
nificance of the union card, I find it of little relevance in
this connection, since Brownfield's testimony itself does
not suggest that she was in any way misled . Essentially
she was told that she did not become a member of the
Union if the Union lost the election and, in retrospect, it
is also clear that she would not have signed the card. In
material misrepresentation. I therefore find the card
valid.
General Counsel's Exhibit 20 Lisa Carozza. Respond-
ent has urged that the card of Carozza is invalid for two
reasons. First, because she was told that the card was not
binding in any way and second, because she wrote a
letter to revoke her signature. Carozza testified that a
former employee, Pam Beckett, who solicited Carozza's
signature, told her "that the purpose was to more or less
obtain information by the union" and that "it was not
binding in any way." However, in her affidavit, she un-
equivocally stated that she had read and signed the card
for the purpose of having the Union represent her. I,
therefore, find that she was not misled when she signed
the card.
With regard to her letter of revocation, the record
does not show that the letter was ever sent or received
by the Union. Struthers-Dunn, 228 NLRB 49 (1977). Ac-
cordingly, I find the card valid.
General Counsel's Exhibit 30-Betty Emerick. Accord-
ing to Emerick's testimony, she had signed a union card
during the June 6 meeting, during which Tillow spoke to
the assembled employees. Tillow allegedly told them
that the union cards were not membership cards, that
they "are for voting" and that "the only purpose was to
have an election, to get a percentage for an election."
However, her testimony was impeached by a prior exe-
cuted affidavit in which she denied ever having been
told that the card's only purpose was for an election.
Her affidavit also showed that she had read the card
prior to signing it. Because Emerick testified that she did
not remember the exact language which Tillow had used
at the meeting, I believe that this witness had only a
vague recollection of what Tillow had actually said6 to
the employees. As already stated above, Tillow did not
misrepresent purpose of the union cards at that meeting,
instead, she mentioned the Union's attempt to obtain a
majority of cards of at least 65 percent and explained the
significance of cards in an election, if a demand for rec-
ognition had been turned down by the Employer. Ac-
cordingly, I conclude that the card of Betty Emerick
was valid.
General Counsel's Exhibit 36-Jill Harding. The union
card of this employee was attacked by Respondent with
the testimony of Thelma Sandy and a letter written by
Harding. The letter, dated June 28, 1979, and addressed
to Thelma Sandy, states:
Without knowledge of the effect of signing a
union card, I did so approximately 2 weeks ago. I
do not wish to be included in the membership of
1199P,
Sandy testified that Harding told her that she wanted
to revoke her card because she had thought that its pur-
pose was to get information and because it would not be
understood as a membership card The record does not
show that the Union ever received the letter, indeed, it
was not addressed to the Union. Accordingly, the card
was not effectively revoked Moreover, I cannot find
any case, she read the card and signed it without any 6 Tiilow's testimony in this regard is quoted above
UNIONTOWN HOSPITAL ASSN
that Harding's signature was obtained by misrepresenta-
tion, for it is not what the employee understood to have
been said , but what was actually said by the solicitor
which is relevant to the instant consideration . I, there-
fore, find the card valid.
General Counsel's Exhibit 37-Debra Harper; General
Counsel's Exhibit 77--Sandra Rotharmel. The record
shows that Harper and Rotharmel had attended the
evening meeting on June 6, 1979 . Union organizers
Tillow and Hustwit had conducted the meeting. Both
employees were given union membership cards at that
time Prior to signing them , Harper and Rotharmel read
the language on the cards . There is no evidence that
there was any misrepresentation involved when they
signed the cards.
However, in July these employees had a conversation
with Suzanne Rogish about the significance of the mem-
bership cards. According to Harper's testimony, Rogish
told them that the effect of signing the card would be to
obligate them to honor a picket line which might be put
up by the Union Rotharmel similarly testified about the
substance of Rogish 's remarks (Tr. 245):
That we had signed union membership cards, she
said that since we had signed those cards , that if it
came to a strike, if the union called a strike that we
would have to go out on strike along with the other
employees , even though we didn't feel that was
right, but that because we had signed that card, we
would automatically be held to go on strike.
On the basis of this information , they decided to
revoke their signed cards. Parenthetically, I discount
Harper's testimony that her conversation with her father
was the prime reason for the decision to revoke her card.
Both employees wrote virtually identical letters, which
they mailed within a few days after their conversation
with Rogish. Rotharmel testified that she revoked her
card (Tr. 262): "Because I didn't want to have to go out
on strike, if it came to a strike, I don't believe in a strike
in a hospital."
The letters of revocation were sent in one envelope
but according to Tillow's testimony, they were not re-
ceived by the Union. The record contains the paid re-
ceipt of a registered letter, but not a return receipt. Nev-
ertheless, in spite of the testimony that the Union had
never received the envelope with the two letters, I dis-
credit that testimony and find that the letters were writ-
ten and sent to the Union. Since, however, the record
shows that both employees sent the letter on the basis of
the statements made by Rogish, their supervisor, I find
that the letters of revocation were invalid. Rogish falsely
represented that union membership automatically re-
quired members to join a strike. Although unions may
impose sanctions , such as the assessment of fines upon
their membership for failure to join a picket line, Section
7 of the Act gives employees the right to refrain from
concerted activities such as a strike. On the basis of the
foregoing, I find that these two cards are valid.
General Counsel's Exhibit 46-Susan Kilgore. The testi-
mony of Susan Kilgore indicates that Renee Kovach and
another employee solicited her signature on the union
1315
card with the representation that it was not a member-
ship card, and that its purpose was to obtain a certain
number of cards so that they would be able to vote. She
recalled that she had read the card prior to signing it.
Her testimony in this regard is at variance with her affi-
davit to the extent that she there quoted Kovach as
saying that signing the card "didn't automatically make
[her] a member that signing it indicated you were inter-
ested in having a union and that the cards also could be
used to get a vote in the union ." The language in the af-
fidavit explains her testimony and shows that she was
not misled into signing the card. She was not told to dis-
regard the written language on the card , nor told that
the purpose of the card was solely for an election. The
testimony of Kovach and Tillow , who recalled soliciting
Kilgore's signature , corroborates this conclusion. I ac-
cordingly find this card valid.
General Counsel's Exhibit 48-Joanne Kolarick. Re-
spondent objects to this card because the testimony of
Joanne Kolarik indicates that she was told that the pur-
pose of the card "was to enable the hospital to get an
election for a union." She also testified that she read the
card before signing it. Moreover she had drafted a letter
addressed to her supervisor Mary Bittinger . The letter
states that she wished to have her card withdrawn be-
cause she acted too hastily in signing it. However, she
did not contact the Union. Employee Deborah Addis
testified that when she solicited Kolarik 's signature, she
"told her that the card was to show you wanted union
representation , that she was interested and supported the
union, and that she wanted union representation by that
union." She also told Kolarik "that if the majority of
them signed a card , it would entitle [them] to file for an
election."
The record evidence does not show that representa-
tions were made that an election was the only purpose of
the card, nor was the card effectively revoked. Accord-
ingly, the card is valid.
General Counsel's Exhibit 49-Patricia Kovach. Ths wit-
ness testified that several union organizers came to their
house on a Friday soliciting her signature . Because she
was very tired, she signed it without realizing that it was
a union card . She did not remember what the union or-
ganizers had told her . She testified that on the following
Monday she wrote a letter to the Union requesting the
return of her card. She also wrote a letter to Thelma
Sandy explaining her attempt to revoke her card. The
letter to Sandy is in evidence, but the only evidence of
the letter to the Union is the testimony of Koavach.
Tillow in her testimony denied receiving any letters of
revocation. I credit Kovach's testimony that she sent a
letter revoking her card and find that the card should
not have been counted.
General Counsel's Exhibit 54-Dona Martin. Martin tes-
tified that at the time she signed her union card she "was
told the purpose of it was to at least receive information
about the union." She also recalled having read the card
before she signed it. There is no suggestion in her testi-
mony that she was misled. The card is valid.
General Counsel's Exhibit 64-Barbara Mulich. Ac-
cording to Mulich's testimony , she signed her card upon
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the representations made by Sandy Samirosano that the
card "was to 'find out more information regarding the
union, it would allow the union to do that by signing a
card and also would allow the union to hold the vote at
the hospital." Mulich also sent a letter to the Hospital,
explaining that she signed the card based upon her erro-
neous understanding of what it meant. In that letter she
expressed her intention to request the return of her card.
The record does not show that a letter of revocation was
sent.
Samirosano testified that she had told Mulich "that the
card shows she was interested in having the union repre-
sent her" and"that she wasn't obligated to vote for the
union, it was not binding, but it showed that she was in-
terested in having it come into the hospital." However,
no one told Mulich to disregard the writing on the card.
She read it prior to signing it. The foregoing does not
show any misrepresentation to invalidate the card.
General Counsel's Exhibit 65-Jane Novak Respondent
objects to this card on the basis that it was effectively
revoked by letter to the Union. Yet the record does not
contain a copy of the letter, nor a receipt for the certi-
fied letter Novak testified that she had sent a certified
letter addressed to the Union, stating that she no longer
wanted them as her bargaining agent. To the best of her
recollection she sent the letter in late November or early
December. When asked whether she sent the letter
before the election, she answered: "Before the election to
the best of my knowledge." Kay Tillow testified that the
Union never received a letter from Novak.
I found the testimony of Novak uncertain and credit
Tillow's specific testimony that the Union did not re-
ceive a letter from this employee. Her card is therefore
valid.
General Counsel's Exhibit 71-Kathy Petrucci. Petrucci
testified that Susan Carbonora solicited her signature.
According to Petrucci, Carbonora told her to disregard
the bottom of the card and represented that the card's
purpose was only for an election. Petrucci was unable to
explain why she had earlier stated in her' affidavit that
"no one told me to ignore the printed language of the
card"; nor was she able to reconcile her testimony with
her prior statement in the affidavit that no one had told
her that the only purpose of the card was to have an
election. As a result, I cannot credit her testimony.
Carbonora testified as follows about her conversation
with Petrucci (Tr. 1286):
Q. And what did you tell her was the purpose of
signing the union card?
A That it was a commitment to the union and in
signing this she was showing interest in the hospital
having a union represent us in collective bargaining.
Q. Did you have any discussion with her about
the card as an application for membership?
A. Yes I did.
Q. And what was said on that subject?
A. In a sense that if we had won the election or
won, you know, by showing support for the union
by the majority of the cards that she was applying
for' membership , but that she was not a member by
simply signing the card.
Q. Did you tell her the only purpose of the card
was for an election
A. No.
Based upon Carbonora's clear and precise testimony, I
find that Petrucci was not misled, and that her card is
valid,
General Counsel's Exhibit, 72-Linda Pecora. Pecora
signed her union card during the evening meeting of
June 6, 1979. Pecora testified that Kay Tillow was pass-
ing out the union cards and said to the employees not to
worry about the cards, they were "just for a survey to
see if it's worth it for the union to come in " Subsequent,
ly, Pecora sent a letter to her supervisor, Mary Bittinger,
stating in substance, that the act of signing her card
should not be interpreted as a vote for the Union.
As already discussed above, the record is clear what
the union organizers had actually stated at the June 6
meeting. Their discussion, telling the employees that the
Union wanted to get 65 percent of the employees', signa-
tures, that the Union could then request recognition and,
if denied, it could then request an election, could easily
have been misinterpreted by the employees. The record'
shows that Pecora read the card, signed it, and was not
misled in doing so. Her letter to the Hospital did not
constitute a valid revocation. Her card is accordingly
valid.
General Counsel's Exhibit 79-Cecilia Sages. Sages tes-
tified that she had written several letters to the Union,
including a certified letter, to withdraw her union card.
In addition, the record contains Sages' letter written to
Thelma Sandy. Respondent has challenged the card of
Sages on the basis -that it had been effectively revoked.
The General Counsel asserts that the revocation was the
result of coercion in an atmosphere of Respondent's
unfair labor practice.
I find the resolution of this difficult. On one hand, it is
clear that Sages sent a letter to the Union. The substance
of the letter is unclear. Presumably, it requested the rev-
ocation of her union card. She testified that her change
of mind came about as a result of a conversation with
her husband. On the other hand, her letter to Sandy dis-
claims and nearly protests any involvement with the
Union. It also assures the Hospital of her attempts to get
her card back. Moreover, her testimony indicates that,
she was apprehensive about the Hospital's knowledge
that she had signed a union card. She repeatedly and,
sometimes nervously, referred to the Hospital's list of
card signers, and stated for example: "If she [Sandy]
knew that I felt that I was signing a union card then she
should know that I was retracting my signed card."
In spite of her own apprehension about the Union and
the Hospital's numerous acts of coercion which generat-
ed such fears, I must conclude that Sages' letter of revo-
cation was an expression of 'her' own preference under'
the existing circumstances. I, therefore, find that her card
was invalid.
General Counsel's Exhibit 80-Georgette Sasko. Sasko
explained in her testimony that she obtained a card at
one of the first union meetings, and that she signed it
about a week later. Tillow and Hustwit had conducted
their meetings and, according to Sasko, had stated that
UNIONTOWN HOSPITAL ASSN.
the purpose of the card was just to get a majority of
cards , so that they could have an election , and that sign-
ers of cards did not become a union member until after
they won the election . She also recalled that she did not
read the card carefully "since they said disregard what it
said."
She was another example of a few employees who
vaguely recalled the substance of what Tillow and
Hustwit actually had told the employees about the
Union's effort to achieve majority status and the possibil-
ity of an election in the event the Hospital refused recog-
nition. I find Sasko 's testimony unreliable in this regard
and find her card valid.
General Counsel's Exhibit 89-Faith Thomas. Thomas
testified that at the time she signed her card , the union
organizers told her that the card was to show interest in
learning about the Union . Subsequently , she changed her
mind about the card and wrote a letter, addressed to
Thelma Sandy, disavowing her interest in the Union.
Although this witness may have felt she was misled,
there is no evidence that this was indeed so. The record
does not show the identity of the card solicitors nor
other representations, if any, made by them. The letter of
revocation may have been written more out of a desire
to impress management than in an earnest effort to re-
trieve her card . In any case, the letter was ineffective as
a revocation , since it was never sent to the Union. I
therefore cannot find that the card was invalid.
General Counsel's Exhibit 93-Wendy Weaver. Re-
spondent objects to this card , because Weaver signed the
card on representations that her card was needed to have
an election, and that she could have it back if she wanted
to. Weaver testified that Kay Tillow and Susan Carbon-
ora told her that the card ) "was to make up a percentage
so that [they] could have an election," and that she
"could have the card back if [she] wanted and it was not
legal." Stating that she did not remember the exact
words, Weaver also recalled that they also told her they
"needed a majority of the nurses to sign this card in
order to have an election." Carbonora testified that she
had told Weaver "that this was an application for mem-
bership and that she was showing support by signing the
card . . . and that she did want the union to come in as
her collective bargaining, agent ." Tillow similarly re-
called talking to Weaver "about the campaign that was
going on . . . what it would mean to get the union and
what collective bargaining would mean in terms of their
ability to deal with their problems." I believe that
Weaver did not fully recall what the union organizers
had told her about the card, and that she was not misled.
Her card is valid.
General Counsel's Exhibit 103-Grace Anderson . Ander-
son explained the circumstances under which she signed
her union card as follows (Tr. 209-210):
There was a meeting of 1199 here at the Holiday
Inn and I came up to the meeting to hear what they
had to say , and they just passed out the card and
told us that we could read them and sign them if
we wanted to.
1317
And I read the card and since I wanted to hear
more about the union , and at the time I was inter-
ested in it and I signed the card.
When asked why she signed the card she further testi-
fied: "I signed the card with the understanding that they
could be used to get an election if the hospital was
against it." The foregoing does not in any way suggest
that Anderson was improperly induced to sign the card.
General Counsel's Exhibit 104-Barbara Rohl(. Carol
Scheggia solicited Rohlfs signature on the union card.
According to Rohlf, Scheggia told her "that the union
had to have a certain percentage of cards signed before
they would even campaign at Union town for a union,
the signing the card didn't mean that you were a
member of the union ." She also testified that she read
the card prior to signing it. Scheggia testified that she
told Rohlf that the card meant "that she was interested
in a union coming into the hospital and once [they]
reached the majority of cards that were signed, then
[they] could file for an election ." When asked whether
she had represented that the only purpose of signing a
card was to have an election , she answered (Tr. 1314-
1315): "Yeah, I mean signing that card meant you were
interested in a union coming into the hospital . . . in
joining the union , you know, interested in holding an
election." I find the card valid.
General Counsel's Exhibit 108-Debra Wilson. Debra
Wilson's card was solicited by Betty Gallo and Deborah
Addis. According to Wilson , she signed the card only
after Gallo and Addis assured her that it was not a mem-
bership card , and that its only purpose was to get infor-
mation . Addis testified , however , that she did not tell
Wilson that the card was for informational purposes
only, but that she told Wilson "that the card showed that
she supported, and wanted to apply for membership to
the union, to want union representation." Addis also tes-
tified that "she told her [Wilson] that after the majority
of the cards were signed that it would give us a right to
file for an election."
Although Wilson steadfastly insisted that the conversa-
tion lasted about 15 minutes, she could not recall any
other remarks made by Addis. I, therefore , discount her
testimony and credit Addis' more precise testimony. Wil-
son's card is therefore valid.
The Lost Card-Joycelyn Walters. The only other card
being contested is the one allegedly executed by Joyce-
lyn Walters. Walters testified that she executed a union
card given to her by Anita Hrutkay . Walters remem-
bered signing the card with her married name , because
she had been married recently. She handed the card back
to Hrutkay . Anita Hrutkay testified that she had received
the signed card from Walters, and that she handed the
card to one of two employees , either Renee Kovack or
Ceane Groti. Kay Tillow, in her testimony , particularly
remembered receiving the union card signed by Walters,
because Walters had previously been known by her
maiden name.
On the basis of the testimony of Walters that she had
signed a card and the corroborative testimony of Hrut-
kay and Tillow , I find that Walters had executed a valid
card sometime during June or July 1979.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union's Majority Status
On the basis of'the foregoing, I have found 94 cards
valid, including Walters. This would be a majority in a
unit consisting of 176 employees. However, Respondent
correctly contends that the card majority was not
reached on October 3, 1979, the date upon which the
Union made its demand. The record shows that the fol-
lowing six cards were signed after October 3: General
Counsel's Exhibit 19, Terri Carolla; General Counsel's
Exhibit 21, Kristy Cipcic; General Counsel's Exhibit 46,
Susan Kilgore; General Counsel's Exhibit 60, Carol
Mickens; General Counsel's Exhibit 65, Jane Novak;
General Counsel's Exhibit 76, Joanne Risha. According-
ly, the Union had 88 cards on October 3, which was not
a majority on the date of the demand. However, the
Union did reach majority on October 4 with the addition
of Risha's card, and it increased its majority status there-
after, reaching 94 out of 176 employees on November 30,
1979. The record shows that the size of the unit had not
increased beyond 176 on November 30, 1979.
The Union's request for recognition on October 3 must
be considered to have been a continuing request under
the circumstances of this case. Respondent had failed to
respond to the Union's request. NLRB v. Kostel Corp.,
440 F.2d 347, 350-351 (7th Cir. 1971). Moreover, on Oc-
tober 5, 1979, the Union filed its petition.
The filing of such a petition is also considered to con-
stitute a request for recognition. It is clear, therefore, and
I conclude" that the Union had achieved a valid majority,
while its demand for recognition was in effect.
The Bargaining Order
To be sure, this case does not involve any allegations
of violations of Section 8(a)(3) of the Act. However, the
record shows that Respondent violated Section 8(a)(1) of
the Act in numerous ways and that such practices were
pervasive. In NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), the Supreme Court approved the use of union
cards as an indication of employee sentiment, and further
approved reliance on such cards as a basis for a bargain-
ing order where there is "a showing that at one point the
union had a majority," and the employer has engaged in
unfair labor practices which "have a tendency to under-
mine majority strength and impede the election process-
es." Id. at 615.
In the instant case, Respondent's unfair labor practices
began immediately after, the Union's initial organization
meetings in June and continued throughout the campaign
until the majority status in October and November 1979
was decimated at the election on December 14, 1979,
when the Union lost the election.
Respondent's unfair labor practices included such con-
duct as maintaining and enforcing an unlawfully broad
no-solicitation, no-distribution rule; maintaining and dis-
parately enforcing an unlawful rule prohibiting employ-
ees from wearing, union-related insignia ; creating the im-
pression of surveillance of its employees' union activities;
urging employees to retrieve and revoke their union
membership cards; interfering physically with union lea-
fletting; interrogating employees concerning union mem-
bership, activities, and sympathies; threatening employees
with discharge because of their union activities; threaten-
ing employees with loss of benefits if they selected the
Union as their collective-bagaining representative; threat-
ening to withhold benefits from employees if they select-
ed the Union as their collective-bargaining representa-
tive, informing employees of the futility of selecting the
Union as their collective-bargaining representative; and
soliciting employee complaints and grievances. Not only
was Respondent guilty of a variety of violations of Sec-
tion 8(a)(1) of the Act, but it is also evident that numer-
ous supervisors participated in that conduct. Moreover,
many within Respondent's management hierarchy were
involved ranging from its Executive Director and Ad-
ministrator Robert Mullen to the immediate supervisors
of the nurses. Under these circumstances, I conclude that
the "employee sentiment, once expressed through cards,
would, on balance, be better protected by a bargaining
order." NLRB v. Gissel Packing Co., supra at 614-615.
Since the record establishes that the Union made a
demand for recognition on October 3, when it had not
yet achieved majority status, and that its demand was a
continuing one thereafter, the bargaining obligation exist-
ed at the time it did achieve majority status on October
4, 1979.
Respondent's failure to recognize the Union and bar-
gain with the Union violated Section 8(a)(5) of the Act.
Moreover, Respondent's grant of an 18-percent pay raise,
effective July 1, 1980, without consulting and bargaining
with the Union violated Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. Uniontown Hospital Association is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), (7), and (14) of the Act.
2. District 1199P, National Union of Hospital and
Health Care Employees, A Division of RWDSU, AFL-
CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By maintaining and enforcing an unlawfully broad
no-solicitation, no-distribution rule; maintaining and dis-
parately enforcing an unlawful rule prohibiting employ-
ees from wearing union-related insignia; creating the im-
pression of surveillance of its employees' union activities;
urging employees to retrieve and revoke their union
membership cards; interfering physically with union lea-
fletting; interrogating employees concerning union mem-
bership, activities, and sympathies; threatening employees
with discharge because of their union activities; threaten-
ing employees with loss of benefits if they selected the
Union as their collective-bargaining representatives;
threatening to withhold benefits from employees if they
selected the Union as their collective-bargaining repre-
sentative; threatening not to grant references to employ-
ees because of their union activities; informing employees
of the futility of selecting the Union as their collective-
bargaining representative; and soliciting employee com-
plaints and grievances, Respondent violated Section
8(a)(1) of the Act.
4. All full-time and regular part-time registered nurses,
including nurse practitioners, employed by Uniontown
Hospital at its Uniontown, Pennsylvania location; exclud-
UNIONTOWN HOSPITAL ASSN.
ing all other employees, business office clerical employ-
ees, instructors , and other registered nurses assigned to
the School of Nursing, utilization review nurses, certified
nurses, anesthetists , clinical coordinators and guards,
other professional employees and other supervisors as de-
fined in the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
5. At all times material herein, since October 4, 1979,
the Union has been the exclusive collective -bargaining
representative of the employees in the above-described
unit.
6. By failing and refusing, since October 4, 1979, and
at all times thereafter , to recognize and bargain with the
Union as the exclusive representative of its employees in
the appropriate unit set out above, Respondent has vio-
lated Section 8(a)(5) and (1) of the Act.
7. By unilaterally granting a pay raise, effective July 1,
1980, Respondent violated Section 8(a)(5) and (1) of the
Act.
8. All other allegations of violations have not been
substantiated.
OBJECTIONS
Based on the findings and conclusions above of viola-
tions of Section 8(a)(1) of many of which are identical to
the objections to the election in Case 6-RC- 8611, I rec-
ommend that the objections be sustained in accord with
the finding of violations
REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, I recommend that it be ordered to cease
and desist therefrom and from infringing in any like or
related manner on its employees' exercise of their rights
under Section 7 of the Act I recommend that the Re-
spondent also be ordered to take certain affirmative
action necessary to effectuate the policies of the Act.
Because of the numerous and pervasive violations of
Section 8(a)(1) of the Act which had a tendency to un-
dermine majority strength and impede the election proc-
esses, issuance of a bargaining order is appropriate 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-
ed7
ORDER
The Respondent, Uniontown Hospital Association,
Uniontown, Pennsylvania, its officers, agents, successor,
and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing an unlawfully broad no-
solicitation, no-distribution rule.
7 If 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 to them shall be deemed waived for all pur-
poses-
1319
(b) Threatening employees with disciplinary action for
violating the no-solicitation , no-distribution, rule.
(c) Maintaining and disparately enforcing an unlawful
rule prohibiting employees from wearing union-related
insignia.
(d) Creating the impression of surveillance of its em-
ployees' union activities.
(e) Urging employees to revoke their union cards.
(f) Interfering physically with union leafletting.
(g) Interrogating employees concerning their union ac-
tivities.
(h) Threatening employees with the loss of benefits if
they selected the union as their bargaining representa-
tive.
(i) Threatening to withhold benefits from employees if
they selected the union as their collective -bargaining rep-
resentative.
(j) Threatening not to grant references to employees
because of their union activities.
(k) Informing employees of the futility of selecting the
Union as their collective-bargaining representative.
(1) Soliciting employees complaints and grievances.
(m) Refusing to bargain collectively with District
1199P, National Union of Hospital and Health Care Em-
ployees, AFL-CIO as the collective-bargaining repre-
sentative in the unit described as!
All full-time and regular part-time registered nurses,
including nurse practitioners , employed by Union-
town Hospital at its Uniontown, Pennsylvania, loca-
tion; excluding all other employees , business office
clerical employees , instructors and other registered
nurses assigned to the School of Nursing, utilization
review nurses, certified nurse anesthetists , clinical
coordinators , and guards, other professional em-
ployees and other supervisors as defined in the Act.
(n) Granting pay raises to the employees in the bar-
gaining unit without bargaining with the Union.
(o) 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 designed to ef-
fectuate the policies of the Act.
(a) On request, recognize and bargain with District
1199P, National Union of Hospital and Health Care Em-
ployees, A Division of RWDSU, AFL-CIO as the rep-
resentative of its employees in the appropriate unit and,
if a contract is reached , sign it.
(b) Post at its facilities in Uniontown , Pennsylvania,
copies of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent 's authorized representative , shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
8 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."
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all places where notices to employees are customarily (c) Notify the Regional Director in writing within 20
posted. Reasonable steps shall be taken by the Respond- days from the date of this Order what steps the Re-
ent to ensure that the notices are not altered , defaced, or spondent has taken to comply.
covered by any other material . IT-IS FURTHER ORDERED that the objections filed in
Case 6-RC-8611 be sustained and that the election be set
aside.