Wadley Hospital

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 829 (N.L.R.B. 1978)

WADLEY HOSPITAL
Texarkana Memorial Hospital, Inc., d/b/a Wadley
Hospital and Communications Workers of America,
AFL-CIO. Cases 16-CA-7266 and 16 CA 7330
September 29. 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS MURPHY
ANI) TRL ESDAtI.
On May 26. 1978, Administrative Law Judge Bruce
C. Nasdor issued the attached Decision in this pro-
ceeding. Thereafter. Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings. findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Texarkana Memorial Hospital. Inc., d/b/a Wadley
Hospital, Texarkana, Texas. its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified.
I. Insert the following as paragraph l(b):
"(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Administrative Law Judge inadvertently failed to provide in his
recommended Order and notice that Respondent cease and desist from in
ans like or related manner interfering with, restraining. or coercing its em-
ployees in the exercise of the rights guaranteed them hy Sec 7 of the Act. We
have modified this recommended Order and notice accordingly.
APPENDIX
No'i('i- To EMPLo YEi s
POSriEl) BY ORDER 01: 1IIL
NAIO()NAI. LABOR REI.ATIONS BOARD
An Agency of the United States Government
Wl \ll.l N)I require that any employee take
part in an interview or meeting without union
representation if the employee requests such rep-
resentation and if the employee has reasonable
grounds to believe that the matters to be dis-
cussed at such interview or meeting may result in
his or her being subject to disciplinary action.
WE WIL.L NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under the National
Labor Relations Act, as amended.
TEXARKANA MEMORIAL HOSPITAI, INC.,
D/B /A WADI)IEY HOSPITAI
DECISION
SlArFiMEN1I OiF HIE CASE
BRt ( C. NASDOR, Administrative Law Judge: This case
was heard before me at Texarkana, Texas. on November 10
and II11, 1977. The charge in Case 16 CA 7266 was filed by
the Communications Workers of America, AFL CIO
(herein called the Union), on June 13. 1977. and the origi-
nal and first amended charges in Case 16 CA 7330 were
filed by the Union on July 15 and August 22. 1977. respec-
tively. The order consolidating cases. consolidated com-
plaint, and notice of hearing issued on August 24. 1977.
TIhe complaint alleges that the Respondent-L-mployer vio-
lated Section 8(a)( 1 ) of the Act by requiring two employees
to participate in disciplinary meetings without the benefit of
union representation, after said employees requested same.
The complaint also alleges that Respondent independently
violated Section 8(a)( l)and (3) of the Act by the discipline
of an employee. the discharge of an employee, and the issu-
ance of a written warning to an employee. The Respondent.
in its answer. denies the allegations.
Upon the entire record. including my observation of the
demeanor of the witnesses, and after due consideration on
briefs, I make the following:
FINI)IN(;S OF FA( T
i. JL. RIS)ICI ()ON
The complaint alleges, Respondent admits, and I find
that Respondent is a Texas corporation engaged in the op-
eration of a hospital at Texarkana, Texas. During the pre-
ceding 12 months, which period is representative of all
times material herein, the Respondent in the course and
conduct of its business operations has received goods and
materials valued in excess of '$50,000 directly from suppliers
located outside the State of Texas. During the same period
of time. the Respondent received gross revenues in excess of
$100,000 for its services.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6), and (7) of the Act.
11. ItlE lABOR OR(ANIz/A lIiON
The Communications Workers of America. AFL CIO. is
a labor organization within the meaning of Section 2(5) of
the Act.
238 NLRB No. 109
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. rIHE ALL.EGED UNFAIR LABOR PRAC'Il(CiS
The Issues
1. Whether the Respondent terminated the employment
of Donna Culpepper because of her membership in or ac-
tivities on behalf of the Union.
2. Whether the Respondent forced and required Lou
Ann Karr to participate in a disciplinary interview without
the benefit of union representation, after she had requested
same.
3. Whether the Respondent reprimanded employee
Linda Anderson, under its no-solicitation rule, for soliciting
employees to sign union cards during working hours in a
working area, although Anderson contended she had not
been engaged in said solicitation.
4. Whether Respondent discriminatorily threatened
Samuel D. Whitaker with discharge because of' his union
membership, activity, and/or affiliation.
5. Whether Respondent forced or required Samuel D.
Whitaker to participate in a disciplinary interview without
the benefit of union representation, after he had requested
same.
Background
The Union began its organizational campaign in April
1976. On April 25. 1976,' T. O. Parsons, International rep-
resentative, advised A. L. McElmurry, Respondent's pres-
ident, that the following named employees and officers were
designated and authorized to represent the Union in mat-
ters affecting the employees: Ann Halter, president: Samuel
D. Whitaker, vice president; and Lou Ann Karr, secretary
treasurer. By letter dated May 21, 1976. Parsons advised
McElmurry that certain employees would comprise an in-
hospital organizing committee. The letter sets forth the
names of some 45 employees. 'The approximate number of
employees in the unit is 666. On June 9. 1976. the Union
filed petitions for two units, one a unit of registered nurses
only and a second involving services and maintenance em-
ployees. The unit involving the services and maintenance
employees is the unit involved in this proceeding. An elec-
tion was held on September 2, 1976, wherein the majority
of votes were cast against the Union. Thereafter, the Union
filed objections, and the rerun election was conducted on
September 9, 1976. On March 22, 1977. the Union was cer-
tified as the exclusive representative of the employees in the
services and maintenance unit. Negotiations for a collec-
tive-bargaining agreement commenced between the parties
on July 13, 1977.
Issue I
Donna Culpepper testified that she began her employ-
ment with Respondent on April 1, 1977. as an administra-
tive control clerk (AC('). 1Her employment application indi-
cates as a relative currently employed by the hospital
Sherrie Hill, her sister. The employment application also
reflects that the first 90 days of employment are probation-
The date on G.C. tixh. 2 appears as April 25. 1977, an obvious error.
ary and that an individual can be released during this pe-
riod without cause. Culpepper, in her testimony, acknowl-
edged that she read this information, which appears above
her signature.
After being hired. Culpepper and five or six other ACC
trainees entered a program consisting of classwork and on-
the-floor training. The classwork was one-haltf day on each
working day and consisted of studies of body functions,
medical abbreviations, and other areas directly related to
the functions an ACC must perform while on the unit. The
class lasted approximately 4 weeks, and, according to the
testimony of Culpepper, examinations were given almost
every day. Culpepper's testimony and the documentary evi-
dence received in the record reflect that she failed each and
every examination.
Culpepper testified that on May 11, 1977, 2 Allen Bur-
bage. supervisor of administrative control clerks, psychiat-
ric attendants, surgical orderlies, and floor orderlies, coun-
seled Culpepper that he had nurses' complaints as to her
performance on the floor in the unit and told her that she
would have to improve her work. Burbage gave Culpepper
a document which the Respondent utilizes, known as a de-
velopment review, wherein her deficiencies are set forth and
she is advised in writing that she will be given time to dem-
onstrate she can perform the duties and learn the classwork
of an ACC. Failing this, upon further review, she will be
terminated. Culpepper read and signed the document on
Mav 6, 1977.
On May 11, 1977, Culpepper was assigned to work with
Supervisor Donna Lovil, whose title was Charge ACC.
They were to work on the fifth floor. a familiar floor to
Culpepper in view of the fact that on May 8, 1976. her
mother, a patient on that floor, had passed away. Accord-
ing to Culpepper's testimony, at the lunchbreak Donna
Lovil advised her that she [Culpepper] must have lunch
with her because Burbage preferred it that way. Culpepper
testified that at lunch Lovil proceeded to ask her personal
questions, among them whether her mother had died on the
fifth floor the year prior, to which Culpepper responded
affirmatively. Culpepper testified further that she was then
asked by Lovil if she (Culpepper) was Ann Halter's 3 niece,
to which Culpepper responded affirmatively. Culpepper
states she was then asked whether Ann Halter was her aunt,
and she acknowledged this to be the fact. On May 13, Cul-
pepper was called in to Burbage's office. according to her
testimony. Burbage advised her that she wasn't showing
accuracy in the completion of her work, that an incident
report had been written about her, and that nurses had
made complaints. Burbage gave her the option of either
being terminated or quitting; she advised him that he could
do whatever he wanted to about the situation. She also told
Burbage she was being treated unfairly. On May 17. Cul-
pepper received a letter advising her that she had been ter-
minated.
Donna Lovil has been employed by Respondent for 2
years and holds the position of Charge AC(', a supervisory
position. As such, she assists in the training of student
ACC's in their on-the-job training in the units.
The correct date was May 6
1 Ann Halter was president of Ihe local and a sister of the deceased.
830
WADLEY HOSPITAL.
Lovil testified that she had received complaints from
nurses and ACC's regarding problems that Culpepper was
encountering both in the classroom and on the unit. In this
regard, she (Lovil) transmitted certain memoranda to Bur-
bage, setting forth Culpepper's various problems and lack
of progress. Lovil testified that she had written other memo-
randa to Burbage regarding other ACC trainees in addition
to Culpepper, and there is documentation in the record of
same.
Lovil testified that no one instructed or asked her to take
Culpepper to lunch: rather. they went to lunch together
because they both happened to be free at the same time.
Lovil testified that she did recall asking Culpepper if she
was related to the woman who had passed away I year
prior and had been a patient on the fifth floor of the hospi-
tal, but she denied asking Culpepper if she was related to
Ann Halter.
Allen Burbage testified that he requested Lovil to put
Culpepper on her schedule for a few days and report back
to him if she was improving. He testified further that during
the 4-week period Culpepper was in training he, on several
occasions. discussed the problems she was having. He fur-
ther testified that Francis Harris, a classmate of Cuipep-
per's and an ACC trainee, tutored C'ulpepper because she
was doing so poorly. Harris, who had superior grades, was
at the top of her class. Additionally. Burbage testified that
other ACC's in the past had been fired for poor classroom
marks, and he specifically named two individuals.
Francis Harris. an ACC for 7 months, testified in cor-
roboration of Burbage's testimony that she did indeed tutor
Culpepper. Harris testified:
When I was studying with her [Culpepper]. I would
think I would be getting it over, but, then I would ask
her questions and it wasn't sinking in. I guess you
would say. She just couldn't seem to understand it.
Paula Stuart, another ACC, had been working for Re-
spondent for approximately 3 years. During the course of
Culpepper's training, Stuart spent time working with her on
the unit. Stuart testified:
She [Culpepper]., didn't grasp everything we tried to
teach her. She was kind of slow in catching on to
everything. We would have to tell her several times
about the same thing, trying to get it right and she
didn't catch on too well.
Stuart then went into specifics -- that Culpepper had prob-
lems filling out requisitions correctly for lab and X-ray
work and had problems answering call lights.
Issue 2
Lou Ann Karr has been employed by the Respondent as
a licensed vocational nurse since January 9, 1976. Karr is
the secretary treasurer of the Union, is on the bargaining
committee, and has served as an in-house union organizer.
On June 13, 1977, at approximately 8:30 p.m., Karr was
requested by her supervisor, Jo Ann Keasler, to report to
the nursing office as soon as possible. When she arrived.
Keasler informed her that she wanted to talk about a situ-
ation which occurred on Wednesday, June 8. 1977. Karr
testified that she specifically asked Keasler if this was a
counseling, because she had never experienced one in the
past, and Keasler responded affirmatively. Karr then re-
quested the presence of a union representative, specifically.
Ann Halter. When Karr and Keasler learned that it would
take Halter a half hour to attend this counseling. Keasler
told Karr to procure someone else who was presently on the
premises. Thes agreed that Frankie Owen, another commit-
tee person, would represent Karr in the meeting. Keasler
instructed Karr to make arrangements for the meeting, re-
turn to her work station, and. after completing her work.
page Keasler. After Karr complied with Keasler's instruc-
tions, she telephoned her to inform her that Frankie Owen
was ready to meet with them. Karr testified that Keasler
responded that it would just be the two of them who would
be present at the counseling. Karr asked if she could not
have a union representative, to which Keasler responded
that it would be just the two of them.
When Karr arrived at the office, Keasler presented her
with a "special report" which states, inter alia, that the type
of patient neglect Karr allegedly participated in does not
meet the standards of the hospital and would not be toler-
ated. Furthermore, if there was any reoccurrence of this
type of nursing care, Karr would immediately be termi-
nated.
Karr signed and dated the special report under protest.
Keasler's version of the episode conforms to Karr's.
Keasler also testified that after the initial meeting with
Karr, she called Mr. Boyd, the hospital's vice administra-
tor. informed him of the situation, and asked if she should
allow Karr to be represented. According to Keasler's testi-
mony, Boyd replied that she did not need to allow Karr to
have representation. in view of the fact that there was no
collective-bargaining agreement. Thereafter, by Keasler's
own admission, she denied Karr the right to have union
representation at the meeting.
Issue 3
The parties seemed to be in essential agreement as to
what transpired between Linda Anderson. a licensed voca-
tional nurse also, and her supervisor. Margaret R. White. a
registered nurse.
Anderson testified that she is a member of the Union but
holds no office or position with the Union.
On Mas 18, 1977. Anderson was called into White's of-
fice. When she entered the office. White handed her a coun-
seling form. which reveals, as drafted by White, that it was
brought to her attention that Anderson was actively solicit-
ing union cards during working hours. in a working area, in
violation of the Respondent's no-solicitation policy and
rule. The notes continued that Anderson was called to
White's office and the matter was discussed with her. She
was advised that a further violation of this hospital policy
would result in further disciplinary action, including termi-
nation. The document is signed by White and Anderson.
According to Anderson's testimony. White told her that
she (White) had been told by three different people that
Anderson was handing out green cards (union cards) to
people. There was further discussion that Anderson. ac-
cording to White, was telling employees that the) would get
their insurance tfor nothing if the Union got in the hospital.
Anderson told White she wanted to be confronted with the
831
DECISIONS OF NATIONAL LABOR REL.ATIONS BOARD)
individuals because it was not true. She told White that the
reason she thought she was being counseled was because
she was good friends with Ann Halter and ate lunch with
her each day. According to Anderson's own testimony, she
was also counseled about the manner in which she per-
formed a hospital function which involved a cancer drug.
Apparently, she did not want to perform this function and
had advised an RN that she was not trained to handle this
drug and that it was not in her job description.
Issues 4 and 5
Samuel Whitaker, a psychiatric attendant in the hospi-
tal's psychiatric unit, has worked for Respondent approxi-
mately 3 years. He is supervised by Burbage and worked
the II p.m. to 7 a.m. shift. Whitaker testified that he is
presently the vice president of the Union and serves on the
bargaining committee. He is also supervised by the house
supervisor and the registered nurse in charge of the unit.
Whitaker, who works on the fourth floor, testified that on
June 2, 1977. at approximately 6:30 a.m., he was instructed
by Staff Nurse Lenore Brosius to take a urine specimen to
the laboratory on the first floor. While returning from the
laboratory, he passed near the personnel office, where he
saw Ann Halter. According to Whitaker, he went over to
her and spoke to her: they then walked back to the elevator
together and took it, she to the third floor, and he back to
the fourth floor. He stated that he had been gone from his
work station fobr 10 minutes.
When Whitaker reported for work on his regular shift
that night, he was called to the office by Burbage. When
Whitaker arrived at the office, Burbage handed him a spe-
cial report and told him to read the document. According
to Whitaker's testimony, he did not complete a reading of
the document but stopped in the middle of the page. Bur-
bage tried to get Whitaker to sign the form, but Whitaker
refused. Burbage then called in the house supervisor,
Eleanor Pyle, and read the report to Pyle. Whitaker contin-
ued to refuse to sign the special report, and when Burbage
again read it to him, Whitaker interrupted and stated that
he wanted union representation.
Burbage testified that after Pyle left the office, Whitaker
started to walk out and turned and asked him if he (Bur-
bage) was refusing Whitaker union representation. to which
Burbage stated that he didn't know anything about the
policies of the hospital regarding union representation.
Whitaker repeated his request twice, and Burbage repeated
that he knew nothing about the policies of the hospital re-
garding union representation.
Burbage testified that the nursing coordinator, McDon-
ald, was an individual who observed Whitaker socializing
near the personnel office rather than remaining in his unit.
He testified further that when told of this situation by Mc-
Donald (he wasn't sure if she wrote a memorandum to
him), he talked to a supervisor, Dorsett. and an orderly who
confirmed the report.
It is clear from Whitaker's own testimony that the unit he
worked in is locked because some of the patients become
violent and could be potentially dangerous. Furthermore,
the primary reason for Whitaker's presence in that unit is to
provide a male presence to help protect patients and em-
ployees, particularly female employees, who work there.
Whitaker testified that when he takes his half-hour lunch
he has been instructed to call an orderly to take over his
station but that he has no such instructions when he takes
urine specimens to the laboratory. The evidence as a whole
reveals that he has been instructed to take a urine sample to
the laboratory only on this one occasion. The evidence re-
veals that generally taking urine specimens to the lab would
be performed by patient-care aides. In addition, this was
not an emergency. and the sample could have remained on
the fourth floor until the next morning (lab technicians do
not work on the night shift).
According to Burbage. the policy of the hospital is that
when a psychiatric attendant leaves a closed unit, he is to
get permission from a supervisor or charge nurse, and he is
to get a replacement. Furthermore, according to the testi-
mony and the documentary evidence. Roy Moore, a charge
orderly, in an evaluation on May 12, 1977. counseled Whit-
aker specifically about leaving his station unattended. The
"Developmental Review" reveals that "he has been told not
to do this (leave his station), unless the house supervisor has
given specific permission." According to Moore's testi-
mony, Whitaker read this evaluation in its entirety, and
Moore went over each and every item with him. Moore
testified that Whitaker. upon reading the evaluation, com-
mented that it wasn't fair and he wasn't going to sign it.
Analysis and ('onclusion
Issue I
'Ihe record. in toro, contains no evidence of any hostility
towards the Union. Nor is there a scintilla of evidence that
the Respondent was attempting to set up or find some pre-
text to rid itself of Culpepper.i To the contrary. the uncon-
tradicted testimony discloses gestures on the part of Re-
spondent and its agents to encourage and aid Culpepper to
improve.
General Counsel's theory is that ('ulpepper was termi-
nated solely because she wsas the niece of Ann Halter, pres-
ident of the local. In my view, the weight of' the probative
evidence does not support this theory.
Culpepper, by her own admission, never apprised man-
agement of her union sentiments or the fact that she was a
union member. 1There is no evidence whatsoever to estab-
lish that management had knowledge of these factors. In-
deed, Culpepper did not even state on her employment ap-
plication that she was related to Ann Halter.
It is clear that an ACC occupies a rather sensitive posi-
tion. An ACC keeps all patients' records, transcribes the
physicians' orders, requisitions medicines, tests, and treat-
ments, and in some cases prepares patients' surgery records.
Culpepper's testimony reflects that her classwork was di-
rectly related to the everyday duties of an AC('('. Paula Stu-
art confirms this fact and stated additionally that she didn't
think she (Stuart) would have been able to do the work had
she ftailed all of' the tests in class. It is clear that ('ulpepper
failed each and every test and even after receiving special
tutoring was unable to improve. At the end of the 4 weeks
of training, C('ulpepper was counseled by Burbage and told
' Culpepper's sister worked at the hospital and was not fired
832
WADLEY IOSPITAI.
that she would he terminated if' she did not show improve-
ment.
Donna Lovil, who made no bones about her antiunion
sentiments and the fact that she participated in an anti-
union rally. impressed me as being a completely credible
witness. She and Burbage testified that she had been in-
structed to carry Culpepper on her schedule and report her
progress or lack of same back to Burbage. In this regard.
she did just that: wrote various memoranda to Burbage
indicating Culpepper's difficulties with the work. I do not
view the fact that Lovil and Culpepper ate lunch together
on one occasion as anything significant to the issue.
Respondent submits that the hospital would have been
derelict in its duties had it retained Culpepper in this posi-
tion although she was unable to properly perform the job,
thus possibly endangering patients' treatments and medica-
tions. I am in complete accord with Respondent's position
in this regard and will recommend that the allegations in
the complaint involving Culpepper be dismissed
Issues 2 and 5
'Ihe Respondent and the ;Union met for the first time on
July 13. 1977. in an effort to negotiate the terms of a collec-
tive-bargaining agreement. Prior to this time, Respondent's
wages, benefits. and working conditions remained un-
changed, including the conditions of employment set forth
in Respondent's handbook. "'Personnel Policies."
It is the position of Respondent that it had difficulties
and problems with the mechanics of representation at the
employee interviews. In this regard. Respondent points to
testimony by union representatives that there were no stew-
ards appointed to represent employees. Moreover, accord-
ing to the testimony,. one of the first agreements reached in
the initial bargaining session was an interim method for
employees to utilize with respect to grievances.
There is a section in the Employer's Policies Handbook
captioned "Appeal Procedure." It provides a rather de-
tailed four-step procedure for processing complaints or
grievances, similar to the kind of grievance procedures con-
tained in negotiated collective-bargaining agreements save
for one element. i.e.. the presence of a union. The Respon-
dent contends that there was no way. prior to July 13, that
it could have responded to a request by an employee for
union representation during a disciplinary interview. It con-
tends further that on July 13 that conundrum was remedied
by an agreement between the Uinion and the Respondent
that the Parties and employees would follow the grievance
or appeal procedure set forth in said handbook. Further-
more, if that procedure didn't work, then, according to the
testimony of a union representative, as agreed to by the
Respondent, the problem would be taken up at the bargain-
ing table.
Respondent does not concede that there were actually
requests for union representation during these disciplinary
interviews and questions whether such representation was
actually requested. I think it clear that representation was
requested.
In my opinion, the case (tI' N .1.RB. . 1. W'eingarten,
Inc.. 420 UI.S. 251 (1]975. is controlling in this area. T'here.
the Supreme Court affirmed the Board in finding a violation
of Section 8(a)( I) of the Act b) denying an employee's re-
quest that a union representative be present at an investiga-
tory interview. which the employee reasonably believed
might result in disciplinary action. Although initially Whit-
aker and Karr may not have known the reason they were
called to the office, they did learn from the supervisors in-
volved otf impending potential discipline when their super-
visors read the documents to them and had them read said
documents. Although the testimony of Whitaker was rather
confused and evasive, I am convinced that he was well into
the intersiew and had read at least part oft the document
when he asked tor representation. I see no evidence to indi-
cate that Whitaker or Karr waived their rights to union
representation.
The tact that the Union had not actually designated indi-
viduals as shop stewards, in my view. does not save the
Respondent harmless or relieve it of the affirmative duty to
allow the employees representation. The record is clear, and
Respondent was aware,. that the Union had designated per-
haps 45 individuals as officers and committee members. In-
deed. the letter from Parsons, the union representative. to
1cElmurrN. president of the hospital, specifically states:
To help you understand our intent and meaning, we
beliese the management must permit employees the
right to consult with their union representatives prior
to an employee's disciplinary interviewv. In addition,
upon request b, an employee, management must per-
mit a union representative to be present during any
disciplinary interview.
'Ihis letter is dated April 25. 1977.' TIhe record contains
nothing to reflect that the Union abrogated this intention as
set forth in said letter.
In my opinion the Respondent, bh refusing the employ-
ees representation, was not engaging in any flagrant anti-
union act but rather was misreading and misapplying the
law. AccordinglN, I find and conclude that Respondent. by
its refusal to allohw Whitaker and Karr to has-e union repre-
sentation during the disciplinary interview s. violated Sec-
tion Xia)( l ) of, the Act.
Issue 3
The General Counsel bases his theorN in three of the five
issues herein on the fact that individuals were related to, a
friend of, or seen talking to Halter, president of the local.
Thus, Respondent is alleged to have engaged in violations
of Section 8(a)( I ) and (3) when it reprimanded Anderson
for engaging in the solicitation of union cards during pro-
hihited periods of time because she ate lunch with Halter.
General Counsel does not attack the validity of the rule
itself, although he indicates that the written reprimand rep-
resented an overls broad application of the rule.
I conclude that the General Counsel's theory and alter-
nate theory are both tenuous and without merit. The evi-
dence reeals that certain individuals reported to manage-
ment that Anderson had been soliciting union cards in a
work area during worktime. Supers ision investigated the
charges. although perhaps not making an in-depth investi-
'As 'tated ea.rher. the date should he 1976
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gation, and concluded that Anderson should be counseled
by a supervisor. When White, her supervisor, discussed the
matter with Anderson, she denied that she had solicited
union cards. White reviewed with her the hospital's no-dis-
tribution and no-solicitation rule and further stated that a
future violation of the rule could result in disciplinary ac-
tion.
I will recommend that this allegation of the complaint be
dismissed.
Issue 4
The evidence is unrefuted that there was a written rule
stating that psychiatric attendants must remain on the
closed unit and that Whitaker was specifically made aware
of this rule. Furthermore, there is a procedure to be fol-
lowed if it becomes necessary for a psychiatric attendant to
leave the closed unit. The evidence indicates that Whitaker
violated this rule, but assuming, arguendo. that Whitaker
was simply following the instructions of a superior, and re-
turned to his duty station in a reasonable period of time,
there is nothing to suggest a pretext or a contrived effort to
harass or discriminate against Whitaker because of any
union activity or because of the fact that he holds a union
office. I would have to view Whitaker's case in a complete
vacuum to find merit to this allegation. As stated hereto-
fore, there is absolutely no evidence of an)y antiunion ani-
mus, nor is there evidence of any independent violations of
Section 8(a)( 1) of the Act other than what I would consider
the technical violations discussed infra.
In addition, it should be mentioned that pursuant to writ-
ten hospital policy, Whitaker's conduct could have resulted
in immediate discharge, rather than the disciplinary warn-
ing. Had Respondent wanted to seize upon an incident to
rid itself of Whitaker, this was its opportunity.
Accordingly, I will recommend that this allegation of the
complaint be dismissed.
CON( I USIONS ()F LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By denying Karr's and Whitaker's requests for union
representation in interviews from which they could reason-
ably conclude that their job security was in jeopardy, Re-
spondent interfered with, coerced, and restrained employ-
ees in the exercise of rights guaranteed by Section 7 of the
Act and thereby engaged in. and is engaging in, unfair la-
bor practices proscribed by Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent did not terminate the employment of
Culpepper in violation of Section 8(a)(1) and (3) of the Act.
6. The Respondent did not engage in violation of Section
8(a)(1) and (3) of the Act by its reprimand to Anderson.
7. The Respondent did not engage in violations of Sec-
tion 8(a)(1 ) and (3) of the Act by issuing Whitaker a written
warning.
THF. REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be required to cease
and desist therefrom and to take certain affirmative action
designed and found necessary to effectuate the policies of
the Act:
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER'
The Respondent, Texarkana Memorial Hospital, Inc.,
d/b/a Wadley Hospital, Texarkana. Texas, its officers.
agents. successors, and assigns, shall:
1. Cease and desist from:
(a) Requiring any employee to take part in an interview
or meeting without union representation, if such representa-
tion has been requested by the employee and if the em-
ployee has reasonable grounds to believe that the matters to
be discussed may result in his or her being subject to disci-
plinary action.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Post at its hospital, in Texarkana, Texas, copies of
the attached notice marked "Appendix."7 Copies of said
notice, to be provided by the Regional Director for Region
16, after being signed by an authorized representative, shall
be posted by it immediately upon receipt thereof, and be
maintained by it fbr 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
IT IS ALSO ORDEREDI) that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
6
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
I In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order oif the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
L abor Relations Board."
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