St. Francis Hospital

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Francis Hospital and United Paperworkers Inter- national Union, AFL-CIO. Cases 15-CA-6681, 15-CA-6865, and 15-RC-6231 May 1, 1980 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, PENELI.O, AND TRUESDALE On January 10, 1979,' Administrative Law Judge Richard J. Boyce issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The General Counsel also filed a limited exception and a supporting brief. Subsequently, on August 10, the National Labor Relations Board remanded the proceeding, order- ing that the record be reopened and a further hear- ing held on certain allegations, 2 in light of the Su- preme Court's decision in N.L.R.B. v. Baptist Hos- pital, Inc.3 On September 9, the Charging Party made a motion before the Administrative Law Judge to withdraw the charges which were to be the subject of the new hearing. Administrative Law Judge Boyce denied that motion because it failed to particularize the allegations of the com- plaint which were to be withdrawn, and because he concluded that the motion would more properly be made before the Board. Thereafter, on Novem- ber 8, the Charging Party filed directly with the Board a request for permission to make a special appeal from the Administrative Law Judge's ruling and/or file a motion to withdraw the complaint al- legations which had been remanded by the Board. Respondent filed a brief in opposition to the motion, and the General Counsel filed a response indicating that he did not oppose the motion. The Board, on January 2. 1980, granted the Charging Party's motion to withdraw the remanded allega- tions. 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 briefs and has decided to affirm the rulings, find- All dates herein are in 1979, unless otherwise indicated. 2 These allegations charged that Respondent had violated Sec. 8(a)(I) of the Act by telling employees that anyone signing or caught with union cards, or signing a card on hospital time, would be terminated, and by limiting union activities to its lounge and cafeteria when there were no such restrictions on Respondent's antiunion activities. 3 439 U.S. 1065 (1979) 249 NLRB No. 17 ings, 4 and conclusions5 of the Administrative Law Judge. The General Counsel contends that Respondent violated Section 8(a)(l) of the Act by deliberately attempting noncompliance with the requirements of Excelsior Underwear Inc.6 Three factors are urged in support of this position. First, even though Re- spondent's computer, which was used to prepare the list, contained employees' full names, Respond- ent submitted a list which disclosed only surnames and first and middle initials.7 Second, after provid- ing this list, Respondent discovered that many of the addresses supplied were incorrect, and failed to provide the corrected addresses to the Regional Office. 8 Third, there is testimony that an employee heard one of Respondent's supervisors say that Re- spondent was forced to give the Union a list of ad- dresses, but "no[t] necessarily good ones." The Ad- ministrative Law Judge dismissed the allegation finding that it was "without supporting legal doc- trine and thus devoid of merit." We agree with the Administrative Law Judge's dismissal of this allegation, because the evidence does not support the conclusion that Respondent willfully provided misleading information, or inten- tionally sought to frustrate the Board's processes. However, we do not foreclose the possibility of finding that an employer may violate Section 4 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have carefully examine. the record and find no basis for reversing his findings. The Administrative Law Judge stated that Bessie Horad and Mary Jef- ferson testified that Helen McAlmond proposed the selection of an LPN representative to meet with management A careful review of the record reveals that no such testimony was given by these two witnesses. How- ever, as noted and credited by the Administrative Law Judge, testimony to this effect was given by Linda Reagan s Having granted Charging Party's motion to withdraw the remanded complaint allegations, we make no findings in regard to the Administra- tive Law Judge's conclusions that Respondent violated Sec. 8(a)(1) of the Act by the conduct described in his Decision, Sec. V, subsec. A(d) and B(a), (b), and (d), except as (d) relates to the incident involving Hutson and Robinson, and sec. VI, subsec. G and I In par, I(g) of his recommended Order, the Administrative Law Judge provided that Respondent shall cease and desist from "in any other manner" interfering with, restraining, or coercing its employees in the ex- ercise of the rights guaranteed them by Sec. 7 of the Act. However, the Board's policy is that such an order is warranted only where a respond- ent is shown to have a proclivity to violate the Act, or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights. Hickmorr Foods, Inc., 242 NLRB No. 177 (1979). We find that the broad injunctive order issued against Respondent is not warranted in this case. In addition to the foregoing, the Conclusions of Law hereinreflect the Administrative Law Judge's finding that Respondent violated Sec. 8(a)X1) of the Act by confronting employee Gail Robinson about "rumors" that she had been passing out union cards on hospital time, which the Admin- istrative Law Judge inadvertently omitted from his Conclusions of Law. 8 156 NLRB 1236 (1966). Some employees had no middle initial listed, and many employees shared surnames, and in some instances, surnames and first initials. I There is no proof that corrected addresses were requested. ST. FRANCIS HOSPITAL 181 8(a)(1) where the facts reveal such conduct. The bare fact that a list with surnames and first and middle initials was provided does not show that the list was the product of an intent to frustrate com- munication or impede Board processes. Nor does the fact that Respondent failed to volunteer ad- dresses which had been updated after the list was sent to the Regional Office. 9 The addresses pro- vided by Respondent were not shown to be any- thing other than the most recent ones contained in Respondent's computers at the time the list was drawn up. The only evidence which tends to sup- port the conclusion that Respondent's actions con- stituted willful misconduct is found in the testimo- ny that a supervisor said Respondent was forced to give the Union employees' addresses, but "no[t] necessarily goods ones." We find that this state- ment, standing alone, is insufficient to establish willful or intentional misconduct, given the lack of other evidence indicative of such an intention. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(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. All full-time and regular part-time, hourly em- ployees, including office and plant clerical employ- ees, excluding all professional employees, confiden- tial employees, nuns, guards, and 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. 4. By interrogating employees as to how they felt about the Union; by asking an employee how she intended to vote in the NLRB election, and how she thought other employees felt about the Union; by asking employees to report card solicita- tion and other such activities and developments; by confronting an employee about rumors that she had passed out union cards on hospital time, all as found herein, Respondent in each instance violated Section 8(a)(1) of the Act. 5. By telling employees that Respondent did not have to or would not bargain with the Union, that employee loans would be discontinued "as long as union activity was going on"; by telling an employ- ee that if she were "caught" with union cards or materials, she would be punished "to the maxi- mum"; and by saying to an employee that she could "pass more cards" behind a closed than an open door, and that she should be careful where TIhe updating occurred in the nolrmal course f buiness after nilll W -2 forms mailed out hy Respondent were returned hecause of irorre I addresses she went and what she said because she was being watched and reported upon, thereby creating the impression that her union activities were under sur- veillance, all as found herein, Respondent in each instance further violated Section 8(a)(1). 6. By threatening employees that the respiratory therapy department would or could be contracted out should the Union get in; and by telling an em- ployee that Respondent would not give any money for raises "until the union activities ceased," all as found herein, Respondent in each instance commit- ted additional violations of Section 8(a)(1). 7. By encouraging employees to complain to management about their working conditions and holding out the prospect of remedial action, for the purpose of undermining support of the Union; by promising to hold future employee meetings "so we could all sit down and communicate with each other about our problems and solutions to those problems," to undermine support of the Union; and by promoting the formulation of an in-house com- mittee to represent the LPNs in dealing with man- agement concerning their conditions of employ- ment, and conducting a poll to select members for such a committee, also to undermine the Union, all as found herein, Respondent in each instance com- mitted yet further violations of Section 8(a)(l). 8. By making promises to employees that a wage and salary survey being conducted would result in adjustments of wages and salaries, but only if the Union did not get in, and that "things would be better," etc., under the new hospital leadership; and by threatening that, if the Union were voted in, wages would revert to the statutory minimum, fringe benefits would be "cut out," and bargaining would start "from there," all as found herein, Re- spondent in each instance additionally violated Sec- tion 8(a)(1). 9. By its repeated emphasis on the likelihood of a strike, should the Union get in, and its attendant emphasis on strike violence and job loss through striker replacement, as found herein, Respondent conveyed to employees the impression that their selection of the Union to represent them would be both a futility and a cause of economic harm and physical danger, and in so doing further violated Section 8(a)(l). 10. The unfair labor practices found herein affect commerce within the meaning of Section 2(6) and (7) of the Act. 11. The unfair labor practices found herein war- rant setting the election aside and directing a second election. S T . F R A N C I S H O S P I T A L 1 81~~~~~~~~. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, St. Francis Hospital, Monroe, Louisiana, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees as to how they feel about United Paperworkers International Union, AFL-CIO, or any other labor organization, how they intend to vote in an NLRB election, or how they think other employees feel about the Union; asking employees to report card solicitation and other such activities and developments; and con- fronting employees about rumors that they have been passing out union cards on hospital time. (b) Telling employees that it does not have to or will not bargain with the Union, that employee loans will be discontinued as long as union activity is going on, and that employees "caught" with union cards will be punished "to the maximum"; and creating the impression that employees' union activities are under surveillance. (c) Threatening employees that the respiratory therapy department will or may be contracted out should the Union get in, and telling employees that it will not give any money for raises until union ac- tivities cease. (d) Encouraging employees to complain to man- agement about their working conditions and hold- ing out the prospect of remedial action, for the purpose of undermining support of the Unio,,n; promising to hold future employee meetings to dil. cuss "our problems and solutions to those prob- lems," to undermine support of the Union; promot- ing the formation of an in-house committee to rep- resent the LPNs in dealing with management con- cerning their conditions of employment; and con- ducting a poll to select members for such a com- mittee, also to undermine the Union. (e) Making promises to employees that a wage and salary survey being conducted will result in adjustments of wages and salaries, but only if the Union does not get in, stating that "things would be better," etc., under the new hospital leadership; and threatening that, if the Union is voted in, wages will revert to the statutory minimum, fringe benefits will be "cut out," and bargaining will start "from there." (f) Conveying to employees the impression, by its repeated emphasis on the likelihood of a strike should the Union get in, and its attendant emphasis on strike violence and job loss through striker re- placement, that their selection of the Union to rep- resent them would be both a futility and a cause of economic harm and physical danger. (g) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Post at its hospital in Monroe, Louisiana, copies of the attached notice marked "Appen- dix."'o Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's authorized representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election con- ducted on March 17, 1978, among the Employer's employees be, and it hereby is, set aside, and that Case 15-RC-6231 be, and it hereby is, severed and remanded to the Regional Director for Region 15 fox the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] 'O In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of appeals enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees the right: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. --- ---- ST. FRANCIS HOSPITAL 183 WE WILL NOT interrogate employees as to how they feel about the United Paperworkers International Union, AFL-CIO, or any other labor organization, how they intend to vote in an NLRB election, or how they think other employees feel about the Union; nor will we ask employees to report card solicitation and other such activities and developments, or confront them about "rumors" that they have been passing out union cards on hospital time. WE WILL NOT tell employees that we do not have to or will not bargain with the Union, that employee loans will be discontinued as long as union activity is going on, and that employees "caught" with union cards will be punished "to the maximum"; and WE WILL NOT create the impression that employees' union activities are under surveillance. WE WILL NOT threaten employees that the respiratory department will or may be con- tracted out should the Union get in; and WE WILL NOT tell employees that we will not give any money for raises until the union activities cease. WE WILL NOT encourage employees to com- plain to management about their working con- ditions and hold out the prospect of remedial action, for the purpose of undermining support of the Union; nor will we promise to hold future employee meetings to discuss "our problems and solutions to those problems," again to undermine support of the Union; and WE WILL NOT promote the formulation of an in-house committee to represent the LPNs in dealing with management concerning their conditions of employment, nor will we con- duct a poll to select members for such a com- mittee, also to undermine the Union. WE WILL NOT make promises to employees that a wage and salary survey being conducted will result in adjustments of wages and sala- ries, but only if the Union does not get in, and state that "things would be better," etc., under new hospital leadership; nor will we threaten that, if the Union is voted in, wages revert to the statutory minimum, fringe benefits will be "cut out," and bargaining will start "from there." WE WILL NOT emphasize the likelihood of a strike, should the Union get in, nor will we emphasize strike violence and job loss through striker replacement, thereby conveying to em- ployees the impression that their selection of the Union to represent them would be both a futility and a cause of economic and physical harm. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed under Section 7 of the Act. ST. FRANCIS HOSPITAL DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This consolidated matter was heard before me in Monroe, Louisiana, on September 11-15, 1978. The charge in Case 15-CA-6681 was filed on October 25, 1977, and that in Case 15-CA-6856 on April 26, 1978, both by United Paperworkers International Union, AFL-CIO (herein called the Union). The complaint in Case 15-CA-6681 issued on December 7, 1977, was amended at the start of the hearing, and alleges that St. Francis Hospital (herein called the Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The complaint in Case 15-CA-6856 issued on July 7, 1978, was amended on July 13 and August 15, and alleges further violations of Section 8(a)(1) by Respondent. An election in Case 15-RC-6231 was held on March 17, 1978, among Respondent's hourly paid employees. It derived from a petition filed by the Union on January 16, 1978, and a Stipulation for Certification Upon Consent Election approved by the Acting Regional Director for Region 15 on February 14. The final election tally was 303 votes for, and 339 against, the Union, with 32 chal- lenged ballots. The Union filed objections to the conduct of the elec- tion on March 24; and, on July 7, the Acting Regional Attorney issued a Report on Objections in which, con- cluding that some of the objections "raise substantial and material issues which can best be resolved after a hear- ing," he ordered that such hearing be consolidated with that to be held in Case 15-CA-6856 because of the coin- cidence of the issues. Also on July 7, the Acting Region- al Director issued an order consolidating Case 15-CA- 6681 with the then-consolidated Cases 15-CA-6856 and 15-RC-6231 "for the purpose of hearing, ruling, and de- cision by an Administrative Law Judge." I. JURISDICTION Respondent is a nonprofit hospital located in Monroe, Louisiana, owned and operated by the Franciscan Mis- sionaries of Our Lady, a religious organization. Its annual gross revenues exceed $250,000 and it annually purchases directly from outside Louisiana goods and ma- terials worth over $50,000. Respondent is a health care institution within the meaning of Section 2(14) of the Act, engaged in and af- fecting commerce within the meaning of Section 2(6) and (7). 1. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. ST. FRANCIS HOSPITAL 183 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ill. ISSUE S The complaint in Case 15-CA-6681 alleges that Re- spondent committed 15 assorted violations of Section 8(a)(l) from August to November 1977, and that it vio- lated Section 8(a)(3) and (I) in September and November 1977 by imposing certain restrictions upon employees Trudie Wheeler and Shirley Gray. The complaint in Case 15-CA-6856 alleges that Re- spondent violated Section 8(a)(l) in 53 particulars from January to April 1978.1 Respondent's answers deny any wrongdoing. The objections matter raises the additional question whether Respondent's conduct during the pendency of the election interfered with free voter choice, requiring that the election be rerun. IV. RESPONDFNT'S 1977 (PREPETITION) CONDUCI A. The September O'Donovan Meetings Facts: Sister Mary Magdalene O'Donovan was Re- spondent's president and an admitted supervisor at all relevant times until March 1, 1978. She learned of the union campaign on August 29, 1977, while on a trip to Atlanta. Upon her return to Monroe on September 1, and for several days thereafter, she gave substantially the same speech to 15 or 16 different groups of employees. She followed a script provided by a New Orleans labor law firm for the most part, although, as developed below, she did depart from the text on occassion. The script reveals that O'Donovan began each speech by describing the union campaign as "a very serious matter," after which she told of past unsuccessful at- tempts to organize Respondent's employees and those of affiliated health care institutions in Baton Rouge. She spoke of "a lot of big promises" made by the unions in those instances, and of their failure to "follow through" on them. She then advised: "Don't sign a union card. And don't get involved with the Union in any way." Signing a card, she declared, would be like "signing a blank check for the Union," and would "obligate you" to observe the Union's internal rules, and could "subject you to being fined if you do not." She cautioned that "getting involved with the Union can lead you straight into the middle of strikes and other union problems." O'Donovan continued, per the script, that the Union "has all kinds of tricks" to induce employees to sign cards, such as falsely claiming that others have signed, and advised that such claims be met by a request that the organizer "show you the other card." Unions also make "all kinds of big promises" to obtain signatures, she went on, but have "no way of guaranteeing" them; indeed, "union promises have a way of turning into union strikes, just like those that have occurred at hospitals all over the country." O'Donovan asserted, according to the script, that, if the Union got in and there were a strike, "you would not get paid, and we Sisters could cut off all of your bene- fits"; "you would not get any unemployment compensa- tion"; and "lastly, and most important, you could lose I No opinion is expressed in this Decision concerning the legality of conduct not specifically alleged to have violated the Act your job in a union strike" because "the Sisters would have the legal right to replace you with new workers" and "would be under no obligation to make room for you even when the strike was over." She then described an I l-week strike of hospital employees in Lake Charles that "cost many of them their jobs and all of the strikers a lot of lost pay and misery." She suggested that the em- ployees ask the Union's organizers about that. O'Donovan stated, as shown by the script, that while the Union "may be fine" for a manufacturing plant, "unions simply have no place in a hospital where . . . we deal with life and death situations"-"the Union has no interest whatsoever in patient care, and has no real in- terest in you except they want a lot of your money." She cautioned against "making a mistake you [will] regret for the rest of your life," and urged the employees to say they are "not interested" if approached. Signing a card, she summarized, "would be the beginning of a series of evils which could end up in an economic strike in which you, your family, and our patients would suffer." O'Donovan testified that she departed from the text only to announce that she "would not continue any per- sonal loans as long as union activity was going on." It had been her frequent practice, using hospital funds and with the knowledge of the board of directors, to loan money to employees "in dire distress," especially those needing money to clothe their children or pay Monroe's "exorbitant" utility bills. The loans were repaid by pay- roll deduction. Two of the employees, Gail Robinson and Patty Thompson, testified that O'Donovan stated to their groups that anyone signing a union card "on hospital time," would be fired. Two others, Christine Degrate and Mary Wilson, testified that O'Donovan declared that anyone signing or "caught" with cards would be "termi- nated immediately" or "automatically terminated." De- grate, Wilson, and Bessie Horad recalled O'Donovan's asking that the employees report card-solicitation activi- ties to her. Robinson and Horad further testified that O'Donovan told their groups that Respondent did not have to or would not bargain with the Union, while Cathy Thompson remembered O'Donovan's saying that Respondent would bargain in good faith should the time come, but would say "no" to all union demands. O'Donovan denied making any discharge threats, asking the employees to report of others' union activities, or saying that Respondent did not have to bargain with the Union. Gerald Foster testified that, in the meeting he attended, O'Donovan made no discharge threats, nor did she ask that the employees inform on one another. The assertions above described, attributed to O'Dono- van by the six named employees, are credited. Each of the six conveyed great testimonial earnestness, together with a seeming ability to recall and relate detail with ac- curacy. On the other hand, while O'Donovan's appear- ance and demeanor were above reproach, her denials of these assertions were of a mechanical nature, carrying little conviction. Foster's corroboration of her was of minimal value, given his limited exposure to her speech- es. ST. FRANCIS OSPITAL 185 Conclusions: It is concluded that O'Donovan violated Section 8(a)(1) substantially as alleged at one or the other or all of the September meetings by: (a) Saying that the loans would be discontinued "as long as union activity was going on." (b) Asking that the employees report card-solicitation activities to her. (c) Saying that Respondent did not have to or would not bargain with the Union, which imparted to the em- ployees a sense that their organizational efforts would be a futility. (d) Saying variously that anyone signing or "caught" with union cards, or signing a card "on hosptial time," would be terminated. 2 B. Restrictions on Solicitation and Movement Facts: Trudie Wheeler, a credit clerk in the business office, perhaps was the Union's foremost advocate among Respondent's employees. She made the initial contact with the Union in July 1977, and was active in the distribution of union cards starting in late August. On the morning of September 1, she made an open declara- tion of her card-soliciting activities and intentions to Gerald Foster, business office manager, who promptly conveyed the information to his superiors. Wheeler's normal work routine up to that time re- quired her to visit various departments of the hospital "several times daily," and she sometimes used those oc- casions to promote the Union. She testified credibly and without refutation that, on September 1, Nadine Odom told her that she no longer was to visit the several de- partments, but rather was to stay at her desk and rely on the telephone. Odom added that she was to be told whenever Wheeler left her work area, and where she was going and when she would be back; and that she would be accompanying Wheeler whenever Wheeler went to the lounge to smoke. Odom further stated that Wheeler was to be careful where she went and what she said in the hospital because people were watching her and reporting back to O'Donovan. Wheeler was not the only one to be restricted in movement. Her officemate, Shirley Gray, testified credi- bly and without refutation that Odom began to escort her to and from the emergency room, where Gray went daily to pick up work, at or about the same time. The restrictive regimen imposed on Wheeler and Gray lasted about 2 weeks. Wheeler additionally testified that Foster told her on September I that she was to have one 15-minute break per day, which was to be treated as hospital time, and I The general rule is that prohibhitons against organizational actis ity "on company time." as distinguished from time in the actual perfolrmance of job duties, unlawfully impinge upon employee rights Eg, Plautvr I1dm Productv Corp., 238 NLRB 135 (1978); Evsvex Inernationalu Inc. 211 NLRB 749. 750 (1974). The Supreme Court. stlating that the Board is under no congressional constraint "to apply different principles :o hospitals because of their p:itient-care functins." has held that "the Board's general approach of requiring health care facilities to permit em- ployee solicitation and distribution during nonworking time in nolslsork- ing areas. where the facilit has not justified the prohihitinls a ncccs',lar to avoid disruption of health care operatilis oir disturhbalce of patients. is consistent with the Act B" eth Israel Hlorpital v L.R B, 437 r S 481. 507 (1978) The present record corntai no showing of such iiti.ition one 30-minute break, which was for lunch and was to be her own time; and that she was to confine her card-solic- iting activities to the 30-minute break and to the lounge area. Mary Wilson, an outpatient insurance clerk, testi- fied that she heard Foster say much the same thing, and that he warned that "anyone caught talking or discussing the Union anytime during hospital time would be auto- matically terminated." Foster concededly told Wheeler that he did not want to see her "engaged in union activi- ty on hospital time," but assertedly elaborated that she could solicit signatures during "breaks and before and after working hours." He testified that the lunch break "was permissible" for soliciting, neglecting specific com- ment on the 15-minute break. Wheeler and Wilson were convincing that he ruled out the shorter break, and are credited. Similarly, Wheeler testified credibly and without refu- tation that Odom told her on September 7 that her 15- minute break was hospital time, that her 30-minute break was her own time, and that she was to distribute cards only on her own time, and only in the lounge or the cafeteria. In addition, Tom Hutson, the chief medical technologist, admittedly "confronted" one of his secre- taries, Gail Robinson, on September 9 about "rumors" that she had been "passing out cards and talking with employees on hospital time." Hutson recalled warning her: "[l]f you are going up there and talk to employees on the hospital's time other than business . . . you don't do that." Respondent's personnel policies manual, in effect at relevant times, prohibits "soliciting for charity, for gam- bling, raffling, commercial selling, or commercial serv- ices . . . either by employees themselves or by persons outside the hospital organization at any time and any- where on the hospital premises, either while on or off duty," unless approved by the hospital administrator. The record is replete with instances in which Respond- ent campaigned openly against the Union throughout the hospital by means of signs and banners, and in which so- liciting took place unrelated to the union situation. On September 7, in a development related to those just described, Respondent closed a second door leading from Wheeler's work area. Explaining, Foster testified that he had "received much information" that Wheeler "was seen in other parts of the hospital . . . distributing union cards and talking about the Union," and, "to pro- tect her from getting fired . . . I had her door closed." After the door had been closed about 20 minutes, how- ever, Odom reopened it with the observation that Wheeler could "pass more union cards" behind a closed door than an open door. On November 10, the door again was closed. A flower arrangement was placed in front of it, and a sign was posted directing people to another door. Shirley Gray, who worked alongside Wheeler, credibly testified that Odom stated at the time that it had been determined that Wheeler and Gray "had to be supervised more closely." Wheeler, having initially testified that Odom said the purpose was to enable her to see Wheeler better, later testified that she could not recall if Odom gave a reason Conclusions: It is concluded that Respondent violated Section 8(a)(l) substantially as alleged by: ST. FRANCIS HOSPTAL 85 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Odom's restricting Wheeler to her desk, requiring that she report whenever leaving, and accompanying her to the lounge to smoke. This plainly was intended to stifle Wheeler's union activities, applied only to Wheeler (and, in part, to Gray), was not in conformity with a valid no-solicitation rule, and was not warranted by any demonstrated business justification. 3 (b) Closing the second door leading from Wheeler's and Gray's work area. The purpose again, as Foster ad- mitted, was to stifle Wheeler's and perhaps Gray's union activities, without convincing showing of an overriding business justification. 4 (c) Odom's creating the impression that Wheeler's union activities were under surveillance by stating that she could "pass more cards" behind a closed door than an open door, and that she should be careful where she went and what she said because she was being watched and reported on to O'Donovan. (d) Foster's and Odom's ruling out the 15-minute break period for union solicitation, and limiting such activities to the lounge and the cafeteria, when there was no such territorial limitation upon Respondent's antiunion activi- ties; and Hutson's confronting Gail Robinson about "rumors" that she had been "passing out cards . . . on hospital time." 5 C. Other Incidents-Gerald Foster Facts: Trudie Wheeler testified that, during the after- noon of August 31, 1977, while she was in Foster's office checking on an account, he stated: I know about the union meeting y'all are attending tonight, so I want you to know that Sister Magda- lene [O'Donovan] does not have to negotiate, she doesn't have to bargain, she does not have to honor a union contract. Foster explained, according to Wheeler, that Respondent did not have to bargain because it was a nonprofit orga- nization run by a religious order. The next day, according to Wheeler, when she told Foster of her role in the organizational effort, he an- nounced that if he ever caught her with union cards or other materials, he would punish her "to the maximum." It was in this same conversation that Foster defined Wheeler's break situation as previously described. Regarding the August 31 conversation, Foster testified that Wheeler, not he, broached the subject of a union meeting, telling him "in strict confidence" that there was to be one. Foster denied having said that Respondent could refuse to bargain, testifying that he instead said that it would have to agree to the Union's demands. : Stein Seal Company, 237 NLRB 996 (1978). It is unnecessary to pass on the contention that this conduct also vioidted Sec 8(a)(3) inasmuch as such a finding would not affect the remedy. See the preceding footnote. See fn. 2, supra. The General Counsel's contention is rejected that the no-solicitation rule set forth in Respondent's personnel policies manual violates Sec. 8(a)(1). This is not alleged in either complaint, and was not litigated. Moreover, the rule by its terms does not apply to union activity, and there is no evidence that restrictions imposed on that activi- ty derived from Respondent's construction of the rule. The next day, according to Foster, Wheeler came to him "very upset and mad" because she had learned that he had violated her confidence of the day before. Foster recalled defending that he had acted within his responsi- bilities as a member of management, comparing Re- spondent's situation to that of a burning house. Foster is credited that Wheeler, and not he, first men- tioned the union meeting. His version seems the more credible in that respect, particularly in light of his de- tailed and plausible description of Wheeler's displeasure the next day at having had her confidence breached. Otherwise, however, Wheeler is credited to the extent that their versions differ. Her recital was convincingly detailed and rendered with assurance, while Foster's den- ials or qualifications lacked conviction. Conclusions: It is concluded that Foster violated Sec- tion 8(a)(l) substantially as alleged by: (a) Saying that, because the hospital is run by a reli- gious order, O'Donovan "does not have to negotiate," etc., which necessarily conveyed to Wheeler a sense that her organizational efforts would be futile. (b) Saying that he would punish Wheeler "to the maxi- mum" if he ever caught her with union cards or other materials. It is further concluded, crediting Foster that he did not bring up the subject of the union meeting, that he did not unlawfully create the impression of surveillance as alleged. D. Other Incidents-James Donaldson Facts: James Donaldson is an admitted supervisor in linen service. Marvin McMurray, a laundry employee, testified credibly and without refutation that he asked Donaldson in late September why he had not received a 5-cent hourly raise inasmuch as he no longer worked overtime. Such a raise evidently had been withheld from McMurray the previous May because his income was being augmented by regular overtime. Donaldson's answer was that O'Donovan "is not going to give any money until the union activities ceased." Conclusion: It is concluded that Donaldson violated Section 8(a)(l) substantially as alleged by saying that O'Donovan "is not going to give any money until the union activities ceased." Respondent's argument is reject- ed that Donaldson's utterance was a permissible state- ment of the legal strictures imposed upon Respondent in the circumstances. There is no evidence that this was Donaldson's intent; and, even if it were, his statement was a gross and inaccurate oversimplification bearing an inherent union-chilling effect. E. Other Incidents-Nadine Odom and Benny Paschall Facts: Mary Wilson testified that, in September 1977, Odom said something to her about a union card and going to O'Donovan. The transcript is too garbled at this point, however, to enable a determination of what was said or intended.6 Wilsn' testimony was, as it appears in the transcript: Continued ST. FRANCIS HOSPITAL 187 Counsel for the General Counsel conceded during the hearing that there is no evidence of certain alleged mis- conduct by Benny Paschall. Conclusions: It is concluded that the record is not suffi- ciently clear to warrant the conclusion that Odom violat- ed Section 8(a)(l) vis-a-vis Wilson, as alleged; and that the allegation concerning Paschall likewise is without merit for want of record support. V. RESPONDENT'S 1978 (CRITICAL PERIOD) CONDUCT A. The February 7-8 O'Donovan Meetings Facts: As she had the previous September, O'Donovan gave a number of speeches to different groups of em- ployees on February 7 and 8, 1978. She credibly testified that she adhered in each instance and without exception to a script provided by the same New Orleans labor law firm that had furnished the September script. Indeed, the script reveals that she stated early in her presentation that she would be confining herself to it "so that no one will be able to misquote me."' O'Donovan declared, per the script, that Respondent was "100% against the Union," and was "convinced beyond a shadow of a doubt that the Union would be bad for the Hospital, for the patients, and for the em- ployees." She continued that the Hospital had been es- tablished 63 years ago to serve the Monroe area, and that it was not going to let the Union "with their history of strikes and trouble come in here now and break our record of service to the public." O'Donovan stated that, should the Union win the elec- tion, "the only thing it would mean is that the Hospital and the Union would sit down and bargain," and that, while Respondent would bargain in good faith, that "does not mean we have to agree with any union demand or proposal." She expanded that "the law" gives an "absolute, legal right to say no to any union demand," and that, if Respondent were to do that, "it could lead to a lot of trouble" for the employees because: "The only weapon the Union has to try and force the Hospital to agree if we say No is to call you out on strike." "The minute" a strike began, she went on, "your pay and benefits stop"; "you would not even be entitled to col- lect unemployment compensation"; and "you could lose your job." Building on the job-loss theme, O'Donovan stated that "the Hospital would have the legal right to hire new workers" to replace those going on strike, and that it "would be under no obligation whatsoever to get rid of the replacements . . . to make room" for the strikers "Nadine [Odom] came io m desk and told me that she had did all she could do that there as nothing else she could do, that she'd been to Sr Magdalene [O'Donovanl and she also gone o Ms Dowd that had gisen me a union card at her desk a;nd that I had received it" 7 Loi Slaten, an office clerk. lestiied that in the speech she heard O()'Dono an depart from the text to assert that Respondent would not have t hargain with the Union "because it as owned by he Sisters" As just mentlloned. ()i)onovan is credited that she adhered to the text, shich c ntain ls r, passage, of this character Inasmuch as ()'Dontosan did mak. tlltemenll t this effect in at least soIme of her September speeches,. as preiously foirllnd by discrediting her denials, there vould senm a likelihood that Siaten hd confused the Seplember aid Fchruar) speec hes "after the strike was over." She added that, "to guaran- tee the continued welfare of our patients . . . we would be left no choice but to replace everyone who went on a strike"; and that, the Union being "famous for calling strikes all over the country," there would be no reason to think things "would be any different here at St. Fran- cis Hospital." Brief mention was then made of union fees and dues, of the possibility of assessments "over and above your monthly dues," and of fines "that could be hundreds or even thousands of dollars." O'Donovan mentioned that Delta Management Com- pany had been brought in "a couple of years ago" to run a survey of "all our systems, wages, benefits, and every- thing else"; that some of Delta's suggestions already had been implemented; and that "we're continuing to work with Delta Management and others to find out what else we can do to make this hospital a better place for every- one." The speeches closed with O'Donovan saying there would be more meetings in the next few weeks to give the employees "the facts on this union," after which she was sure that they "too will be convinced that the last thing ay of us need in this Hospital is a union with a lonig history of strikes and other troubles." Conclusion: The complaint alleges that O'Donovan violated Section 8(a)(1) during the February 7 and 8 meetings by saying that, "if the Union won the election, Respondent would refuse all union demands, thereby causing the Union to call the employees out on strike, during which they would lose their jobs." While the remarks to which the General Counsel ob- jects may have been technically correct, and probably could not be found to have violated the law if standing alone, they were-as will be seen-but the first of a mas- sive bombardment of references to an emoloyer's right to say "no," to the Union's proclivity to strike, to employee job-loss and other detriment in the event of a strike, etc., the plain intent and effect of which was to impress upon the employees the inevitability of a strike and attendant job loss. It therefore is concluded that O'Donovan's re- marks, as part of the orchestrated whole, violated Sec- tion 8(a)(l) as alleged.8 B. The February LPN Meetings and Poll Facts: In February 1978, Respondent convened two meetings of its licensed practical nurses, the first on or about the 14th and the second a week or so later. Those present for management were Helen McAlmond, direc- tor of nursing services, James Meade, executive vice president, and Cynthia Rogers, director of the social services department. No script was used. Explaining the meetings' purpose, Meade testified that the LPNs were "attempting to find an alternate or a better source of communication" with management, "and wanted to dis- cuss that method." Or, as Rogers put it, she and McAI- rnond "set up" the meetings after some of the LPNs had complained that they were not "getting the recognition " We.x-e, of Hleadland. Inc., 23t NLRB 1001, 1002 (1978): Four Wind Induitrii. Ir . 211 NLRH 542 (1974): 7bmmn'ry Spanish Fo)ds. Inc., 18 NLRB 235 (197(). ST. FRANCIS HOSPITAL 187 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . [and] wanted a committee of representatives to meet with nursing services on a monthly basis as the RNs do." There had been no prior meetings for this purpose, al- though this had been a recurrent complaint of the LPNs for several years, according to Rogers. During one or the other or both of the meetings, someone asked why there had been no previous meetings, to which Rogers replied that the Union had awakened Respondent to the need, and that they were "better late than never." In keeping with the meetings' purpose, McAlmond proposed that the LPNs select a representative from each department to meet with management once a month regarding job-related problems, and asked how they liked that idea. 9 Other matters were discussed, as well. McAlmond an- nounced that the LPNs no longer would be required to save narcotics cartridges,'° and that "there's going to be a lot more improvements." She acknowledged that the LPNs "are not making the kind of money you should be making," asserting that "we're going to take care of this, too." She mentioned that O'Donovan was being replaced by James Hice as head of the hospital, and asked that the employees give the new leadership a chance--"things will be better." Rogers also held out the prospect of sala- ries being "adjusted," explaining that Delta Management Company was then in the process of doing a salary eval- uation. Rogers cautioned, however, that "if the Union comes in, all of that is thrown out."'' Complaints and suggestions were made from the floor, notes of which were taken by Rogers. McAlmond en- couraged this sort of participation, saying such things as "we need to know this," that she would look into it, or that a suggestion was a "good idea." Rogers said that, while no promises could be made, "everything would be given every consideration." At or about the time of these meetings, Stephanie Cou- sans prepared and distributed ballots to the LPNs in ob- stetrics. Each ballot contained the names of all the LPNs in the department, one cf whom was to be chosen the departmental representative. Among those receiving a ballot was Linda Reagan, an LPN in obstetrics. Cousans told her at the time: "Linda, I have a ballot for you. I want you to vote for your representative for our OB sec- tion. Be sure and do it and put it on my desk, because you are one of the last ones to vote." Cousans comment- ed that Shirley Pettis "would be good because she always speaks her mind." . I inda Reagan Itessic Hlorad, and Mary Jefferson ire credited that McAlmond soiced such a proposal McAlmond admitted that an in-house grievance committee was discussed, but asserted that the idea was not pursued after she told the eniploees that not acltion could he taken be- cause of the pe'dcenc) of the election (;ien the undisputed purpose f the meetings. and the undisputed fact. feound below, that at least soni of the LTPNs were polled at or about this lime concering heir choice (of representatives, the overwhelming weight of, plausibility is ,n t ile side f,1 Reagan. Horad, and Jefferson Ai Until February 14, expended narcotics cartridges were to he re- turned to the pharmacy Linda Reagan described this as "a lol f Itrou- ble-if we lost one they made us dig it out of the garbage or we stayed until we found it." I ' Reagan is credited that McAlmonld anld Rogers iradle stateriillts of the sort described Rogers testified tIhat rioney as lnot dliscussed, the "biggest comerplaint" being professionlil recognition Neither McAlnmiid nor Mead testified on the point Reagal conrveed testittial iicerily and good recall, while Rogers' contrary tstimo!y was not convincing Cousans testified that she placed the completed ballots in her desk drawer, and that no action was taken con- cerning them. Conclusions: It is concluded that McAlmond, Mead, and Rogers violated Section 8(a)(l) substantially as al- leged by holding these meetings, because the Union had awakened them to the need, for the purpose of discuss- ing the formation of an LPN committee to meet with management;'2 that they also violated Section 8(a)(l) as alleged by encouraging complaints and suggestions from the floor and indicating that they would "look into" them;' and that Rogers further violated Section 8(a)(l) as alleged by promising that salaries would be "adjusted" upward, then threatening that "all that is thrown out . . .if the Union comes in." Finally, it is concluded that Cousans violated Section 8(a)(1) as alleged by polling the LPNs in her department to select a representative for the LPN committee that was to meet with management. C. The Small Group Meetings in February and March Facts: In anticipation of the election, Respondent formed four teams of two management officials, called "moderators," who conducted two series of small group employee meetings. The first series was held the week of February 20, 1978, and the second week of March 6. The teams first underwent training from the New Or- leans law firm previously referred to, and used scripts prepared by that firm in their presentations. The teams were Gerald Foster, the manager of the business office, and Helen McAlmond, director of nursing services; Ingrid Finch, public relations director, and Bill Wilson, whose capacity is not revealed on the record; Hazel Dowd, personnel director, and Douglas Shaw, mainte- nance supervisor; and James Meade, executive vice presi- dent, and Cynthia Rogers, director of social services. The moderators admittedly did not follow the scripts to the letter, particularly as they gained familiarity with the subject matter through repetition, instead using them as guidelines. It nevertheless must be presumed that the scripts were adhered to in substance, and that they, coupled with the testimony of the several witnesses con- cerning the meetings, convey a true picture of what hap- pened. One of the first points made by the moderators in the meetings of the first series was that the Hospital had the legal right to reject any union bargaining demand; that, while it would bargain with the Union in good faith should the Union win the election, this did not necessar- ily mean that wages and benefits would improve. One of the moderators would raise a blank sheet of paper, ex- plaining that it was what a labor contract looked like at the outset of bargaining. Mary Wilson credibly testified that Foster said at this point in the meeting she attended that wages would revert to the minimum wage of $2.65 per hour, that various fringe benefits would be "cut out," and that bargaining would start "from there." Lou Pearl Major credibly attributed much the same statment to ' g, l. I a 'i Iron ,,, .Si eel (, . 224 N lR I hh6. 875 (117h) : g Re lii- IltEri ( ,rpir. ailidon Plant ,-ihan,iiu l Drivers )iwen. 191 NI R 44, 4 (l')71) S. F~RANCIS HOSPITAL 189 McAlmond in the meeting she attended, as did Laura Simmons. 4 The next point was that, if the Hospital were to reject the Union's demands, the Union's only "weapon" to compel agreement would be a strike. Foster, by his own admission, went so far as to say that a strike was the "only tool that the Union had to make the Hospital ne- gotiate with them." The potential consequences of a strike were then explored. The employees were told they could be "hurt and hurt badly" by a strike-that they would receive no pay and no unemployment compensa- tion, and that they could even lose their jobs altogether because of an employer's right to replace strikers. Stress- ing job loss, the moderators characterized the Union as one of the more strike prone unions in the country, adding that Respondent would have "no choice" but to try to replace every striker. This portion of the presenta- tions was augmented by the circulation of leaflets telling of specific instances in which strikers had lost their jobs through replacement. The subject then turned to strike violence. The script termed this one of the "saddest things" about strikes, noting that violence "is definitely possible" should there be a strike at the Hospital. Della Jones credibly recalled McAlmond's being asked about crossing picket lines, and that McAlmond advised against it, saying that "people have gotten killed." Some of the moderators spoke at or about this point of union violence to compel employees to become members. Barbara Trezevant credibly testified that, in one of the meetings, McAlmond stated that unions burned cars and beat people up to make them join, while Florence Burchfield credibly recalled McAl- mond's saying that unions bring in people from out of town to "threaten and harass" nonjoiners and to "beat up" employees and their families. Similarly, Linda Reagan credibly testified that Cynthia Rogers said unions put sugar in the gas tanks and burned the houses of non- joiners. Further on the subject of strikes, the moderators spoke of patient hardship and even death in the case of an infant in London because of hospital strikes, circulating documenting leaflets; and Mead and Rogers asserted, ac- cording to the credible testimony of Cora Wiley and Linda Reagan, respectively, that the employees would have to strike should the employees of Olinkraft Paper Mill in Monroe, who were represented by the Union, go on strike. The script for the meetings of the first series also speaks of a wage survey then being performed by Delta Management Company, stating that the process had been forced "to slow down . . . because of the Union." The script continues: "If the Union loses the election then we can get back to that part of the program . . . however, if the Union wins, then we will be required to bargain with them and not be able to do anything we had planned." Meade, who concededly followed the scripts "very closely" in general, explicitly did so in this area. He testi- fied that he told the employees in his meetings that Delta 4 Foster denied thrcatcing a )loss of wages and beniefits, while McAI- mond's testimony did not address he cotmments attributed to her bh Major and Simmons. Wilson seemed more believable than Foster on the point, and is credited. Management was doing a correlation survey between wages and responsibilities, the object being "to arrive at a fair competitive wage and salary program that would suit everybody," inserting the qualification that it all "goes for nothing" if the Union wins. The meetings of the first series ended with mention that O'Donovan had been replaced by James Hice as chief executive officer, and an entreaty that the employ- ees give the new leadership a chance to show what it could do before resorting to the Union. Rogers told one of the groups, according to Linda Reagan's credible tes- timony, that O'Donovan had been replaced ahead of time because of the "union business"; and Meade assured the employees, as Catherine Thompson credibly recalled, that he knew O'Donovan had made everyone mad, but that "things would be better since she was going." To much the same effect, Rogers said to at least one of the groups, as Reagan credibly testified, that she could not make promises, "but things were going to get better"; and Della Jones credibly related Dowd's urging that the new administration be given "about two months and they'll straighten everything out." The meetings of the second series were much like those of the first, strikes again being emphasized. The script depicts the Union as "one of the most strike- happy" in the country, and declares: "In almost every hospital in Louisiana where a union has become in- volved, there has been a strike of some sort or another." Pictures of strikers at a hospital in Lake Charles were circulated, with the script containing the line that "they could just as easily be pictures of you if this union gets in here." The moderators in the meetings of the second series discussed union fees, dues, assessments, and fines, speak- ing of fines of several thousands of dollars; and showed the employees a sample NLRB ballot. The script also raises the prospect of further small group meetings "like this so we could all sit down and communicate with each other about our problems and solutions to those problems," and it is evident from the testimony of Doro- thy Claunch, Catherine Thompson, and Vera Tribble, re- spectively, that McAlmond, Mead, and Rogers in fact spoke in those terms. During the meetings in both series, the employees were encouraged to speak out. Numerous complaints were voiced. Meade testified: "[I]f somebody had a com- plaint or wanted me to look into something, I took the name and a small couple of sentences on what the com- plaint was, and I said I will take a look and see what we can do." Mead commented to the employees during this process: "See, there, we can talk about these things; we don't have to have a union." Finch and Wilson advised the employees to take their problems to their supervisors "and see what could be done from there," and Shaw ad- mittedly invited the employees "to talk and present their problems." Conclusions: It is concluded that the several modera- tors charged with misconduct-i.e., all but Wilson, who was unaccountably left out of the pleadings-violated Section 8(a)(1) substantially as alleged by: (a) Encouraging complaints from the employees, as for example Meade did by saying "we can talk about thest ST. FRANCIS HOSPITAL 189 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD things; we don't have to have a union"; and holding out the prospect of remedial action, as for example Meade did by responding to the complaints that he would "take a look and see what we can do." (b) Making generalized promises of improved working conditions, as when Rogers stated that, while she could make no promises, "things were going to get better"; and Dowd proposed that the new leadership be given "about two months and they'll straighten everything out"; and Meade assured that "things would be better" now that O'Donovan was gone. (c) Making specific promises and threats, explicitly or implicitly contingent upon election outcome, as when Foster and McAlmond stated that wages would revert to the statutory minimum, that fringe benefits would be "cut out," and that bargaining would start "from there"; when it was indicated that the Delta Management wage survey would result in a "fair" wage and salary program if the Union lost, but "goes for nothing" otherwise; and when the prospect was raised of further such meetings "so we could all sit down and communicate with each other about our problems and solutions to those prob- lems." (d) Impressing upon the employees the virtual certain- ty of a strike, and attendant violence and job loss, should the Union get in by stressing the Union's reputed strike proneness and depicting the strike "weapon" as its only recourse to compel agreement-or, as Foster put it, "to make the Hospital negotiate"; by deploring strike vio- lence, yet asserting that violence "is definitely possible" should there be a strike; by observing that pictures of strikers "could just as easily be pictures or' Respondent's employees were the Union voted in; by declaring that Respondent would have "no choice" but to replace strik- ers, etc. 15 D. The March 2-3 Hice Meetings Facts: As earlier mentioned, James Hice replaced O'Donovan as president effective March 1, 1978, report- edly because of the "union business." A series of meet- ings were held on March I and 2 to acquaint the em- ployees with Hice. Meade opened each meeting with a brief statement of introduction, after which Hice spoke from a script again prepared by the New Orleans law firm. Hice stated, as revealed by the text: [Y]ou do have my 100% commitment to work with you and everyone else in this Hospital to make St. Francis the best possible medical care facility for both patients and employees. . . I will work with everyone and do whatever is necessary to solve whatever problems we might have. When I say work with everyone I mean everyone. . . I intend to have an open door policy . . . and if any of you want to see me about anything all you have to do is walk through that open door. Hice expressed an impatience to conclude the services for which Delta Management Company had been con- '5 See cases cited in fn. 8, supra. tracted, saying that its only remaining function "is to supply the Hospital with a complete wage and benefits survey . . . so we could . . . make sure we were treating everyone correctly." Hice also said that "one of the first things" his administration would "look into" would be staffing to "make sure we have enough people ... to do the work correctly." Only toward the end did he refer to the union situa- tion. He said that, although he did not "know a lot about this particular union," he had seen what unions had done at other hospitals in Louisiana- "there has been vio- lence, strikes, and patients have even died as a direct result of union strikes." He closed with this appeal: (G]ive me and Mr. Meade a chance to show you what we can do to make this hospital the best possi- ble place to work before you risk everything you have with the Union. Let us work with you to solve whatever problems we have before you risk strikes and commit yourself to pay a lot of money to the Union.... I believe, no, I know that a union will not help us work together, but will only split us up and make our goal of making St. Francis the best possible medical care facility for everyone even harder to achieve. Conclusion: There being no allegation of misconduct in these meetings, no conclusions are reached in that regard. E. The March 15-16 Preelection Meetings Facts: On March 15 and 16, 1978, meetings were held in which Hice, Meade, and Sister Brendan Mary, identi- fied as the head of all franciscan nuns in the United States, spoke to the employees about the now imminent election. Each spoke from a script prepared by the New Orleans law firm, which was followed "very closely" ac- cording to Meade. Sister Laura Gavin "filled in" for Sister Brendan Mary in one of the meetings, reading her part of the script. The script discloses that Hice opened each meeting by mentioning that the election was to be March 17, and de- claring that "allowing the Union into this hospital would be bad for you, bad for our patients, and bad for our future." He said that, because "the majority of you have told me of your own free will that you are goinig to vote 'NO' union," he could report "that it is now clear the Union will be beaten." Hice added that he took "this fine show of support as a personal endorsement of the programs we have already started," and pledged "that when the Union is beaten on Friday, we will continue to move forward to make St. Francis the best medical-care facility in this area and the best possible place to work." Sister Brendan Mary-or, in the one instance, Gavin- then spoke. She stated, per the script, that the Sisters felt "exactly the same as those of the hospital administra- tion-we do not want the Paperworkers Union in this Hospital." She continued that she had "personally talked with many" of the employees and was "pleased and gratified to find that almost everyone reaffirmed" her belief that a majority would vote against the Union. She voiced her appreciation for "this warm show of sup- --- ST. FRANCIS HOSPITAL 191 port," and vowed that "we will do everthing in our power to make sure that you never regret your decision to keep the Union out." Sister Brendan Mary (Gavin) went on, according to the script, that "health-care facilities ... where employ- ees deal with life and death situations, are simply no place for a union." Then, to make the oint that the Union would not "be able to come in here and walk right over us" simply because the Hospital is run by a religious order, she told of a strike of cemetery employ- ees in New Orleans because the archdiocese "said 'NO' to the union's unreasonable demands." As she described it, there was "some violence-a building was burned and someone shot a rifle into the cemetery," the union even- tually "gave up" without getting a contract, and "the strikers never got their jobs back because they had been replaced." Sister Brendan Mary (Gavin) asserted that, "with the start of a new administration, we have the opportunity to start anew and work together to solve the problems that face us all." She concluded: [N]one of use can afford to give this union a chance to come in here and cause problems like those at . . .other hospitals in Louisiana where unions have caused trouble.... By voting No, you can put an end once and for all to the unpleasantness that has been associated with the Union. Meade used the remainder of each meeting to describe voting arrangements and procedures. He urged everyone to vote-"You should remember that not voting ... can be the same as voting for the Union"; and, with a sample ballot, explanied how to enter a "No" vote. He finished by declaring "that we will do everything in our power to make sure that you never regret your decision to keep the Union out." Conclusions: It is concluded that Hice, first having characterized the employees' purported antiunion senti- ment "as a personal endorsement of the programs we have already started," made an unlawful promise as al- leged by pledging that "we will continue to move for- ward to make St. Francis . . . the best possible place to work . . . when the Union is beaten." The plain implica- tion was that programs "already started" would be ex- panded, and that new programs would be instituted, if the Union lost. Similarly, in view of the context in which it was uttered, it is concluded that Gavin's remark that "we have the opportunity to start anew and work to- gether to solve the problems that face us all" constituted a further unlawful promise of benefits as alleged.' Finally, it is concluded that neither Hice nor Gavin unlawfully solicited grievances, as alleged, during these meetings. 17 F. The March 17 Yoder Meetings Facts: David Yoder is Respondent's director of respira- tory therapy. At or about 9 a.m. on March 17, 1978, election day, he announced to a group of respiratory 16 E.g., Baker Manufacturing Co.. Inc., 218 NLRB 1295, 1297 (1975). " There being no allegation that Sister Brendan Mary violated the Act, no conclusion is reached in that regard. thereapy technicians in the lounge that he had learned that the department would be contracted out if the Union got in, and that he "would probably" lose his job in the process. He also said that his request for neonatal equipment had been refused, and asked that each techni- cian see him individually in his office. ' During the individual meetings in his office, Yoder handed out paychecks, this being a payday,' 9 and invit- ed questions about the Union and the hospital. He told some of the technicians that the Hospital had been "put- ting pressure" on him to "put more pressure" on them before the election, something he did not want to do be- cause he felt they were intelligent enough to vote prop- erly without being instructed; and he again raised the possibility of the department's being contracted out should the Union win, with attendant job loss for him. 2 0 Yoder emphasized that patient care would be "upper- most in our minds" in the event of a strike, and that strikers consequently would be replaced; told Florence Burchfield that work schedules would change if the Union got in, and would be subject to its approval; told Dorothy Claunch that her benefits would have to be re- negotiated should the Union win; and asked Barbara Tre- zevant how she felt about the Union. 2 1 Conclusions: It is concluded that Yoder violated Sec- tion 8(a)(1) substantially as alleged by referring to the de- partment's being contracted out should the Union win, and by asking Trezevant how she felt about the Union. It is further concluded, however, that his mention of the denial of his request for neonatal equipment was too am- biguous to constitute an unlawful threat of equipment loss, as alleged. G. The Union Jacket Problem Facts: On March 13, 1978, Trudie Wheeler draped a red windbreaker jacket over the microfiche machine in the business office so that the lettering on its back- "Union Committee"- was visible to passers-by. She ad- mittedly wanted other employees to see it. Gerald Foster, the manager of the business office, presently di- rected that she remove the jacket from display; and, at or about the same time, told a gathering of business office employees, Wheeler among them, that they were not to wear such apparel in patient access areas. He told Wheeler, however, that she could wear the jacket at her desk. Also on March 13, James Meade came upon Marvin McMurray wearing such a jacket in a patient access area. He told McMurray that it would be all right to wear the jacket in the laundry room, but not where pa- ls This is Barbara Trezevant's credited version of Yoder's remarks Yoder did not directly refute Trezevant, and admittedly raised the con- tracting out possiblity in the ensuing individual meetings '1 It was not customary for Yoder to distribute the checks in this manner. 10 Yoder is discredited that his only reference to job loss svas in the context of strikers being replaced. Trezevant and Ruth Bell both credibly testified that he raised the possibility of his losing his job if contracting out occurred It is concluded, however, that, when he told Dorothy Claunch that employees "could possibly be replaced," as Claunch testi- fied, he was speaking of the striker replacement situation. 21 Trezevant is credited over Yoder's denial that he asked how she felt about the Union. ST. FRANCIS HOSPITAL 19_ 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tients might be. And, on March 16, Virginia Odom di- rected Lois Staten to remove a pin bearing a legend to the effect that she was for the patients 100 percent and for the Union 200 percent. At or about the time of the election, and despite the prohibitions just described, "Vote No" stickers were posted around the Hospital, including patient access areas, and various personnel wore such stickers on their clothing. Green beanines with "Vote No" legends were commonplace; and, on the day of the election, Foster was seen carrying a "Vote No" billboard. Conclusion: There being no like restrictions upon the wearing of antiunion signs and apparel, it can only be concluded that the restrictions on the wearing of the "Union Committee" jackets and the prounion pins were designed to thwart the Union's organizing campaign and not to meet any legitimate need to protect patients. The restrictions therefore violated Section 8(a)(l) as al- leged. 22 H. The "Excelsior" List Facts: The voter list supplied by Respondent in ad- vance of the election, as required by Excelsior Underwear Inc. and Saluda Knitting, Inc., 23 contained about 700 names and addresses. Intitials were supplied instead of first names, and there is reason to suspect that the last known addresses of some of those listed were not pro- vided. 2 4 The record affords no basis for ascertaining how many addresses were in error whether or not pur- posefully. The day before the election, during a preelec- tion conference, Respondent supplied a supplementary list of 20 names and addresses omitted from the original list. Conclusion: The General Counsel contends that, by using first initials instead of names, by seemingly submit- ting outdated addresses in an unknown number of in- stances, and by neglecting to include 20 employees in the original list, Respondent engaged in a "deliberate attempt to deny the Union meaningful access to its employees," thereby violating Section 8(a)(1). No case is cited for the proposition that Excelsior noncompliance, over and above its possible nullifying effect on an election, vio- lates Section 8(a)(1). In the Excelsior case itself, the Board expressly declined to express a view on the issue. 2 5 Without getting into the questionable adequacy of the General Counsel's evidentiary premise, it is con- cluded that the allegation is without supporting legal doctrine and thus devoid of merit. I. Other Incidents-Marvin McMurray's Schedule2 6 Facts: Until January 21, 1978, Marvin McMurray worked 5 hours each Saturday and 7 hours daily, 22 Baptist Memorial Hospital, 225 NLRB 525 (1976): Ohio Masonic Home, 225 NLRB 509 (1976); St. Joseph's Hospital. 225 NLRB 348 (1976); The Ohio Masonic Ifome. 205 NLRB 357 (1973). 2' 156 N LRB 1236 (1966). 24 Ruth Bell testified credibly and without refutation that she heard McAlmond say that Respondent "was forced to give the list of addresses, but not necessarily good addresses 25 156 NI.RB at 1246. 2~ Because of the multiplicity of similar and overlapping allegations concernitg conduct by Respondent during the "critical period," and to expedite the hearing, counsel fr the General Counsel was precluded Monday through Friday. As of January 21, he was as- signed 8 hours, Monday through Friday with no Satur- day work. When McMurray asked James Meade about the change, Meade explained that McMurray had been using his Saturdays on the job to campaign for the Union, and that O'Donovan wanted it to stop. 2 7 Conclusion. It is concluded that the change in McMur- ray's schedule was intended to frustrate his perceived union activities, was not in vindication of a valid no-so- licitation rule, and was not warranted by any demon- strated business justification; and that it consequently violated Section 8(a)(1) as alleged. J. Other Incidents-Melva Martin Facts: McMurray testified to a conversation with Melva Martin, an admitted supervisor in housekeeping, in late January 1978, in which Martin asked: "Marvin, what do you think about the Union?" McMurray replied that he was "for it all the way," as he recalled, to which Martin stated that that was his privilege, but that she did not think "the Hospital is a place for the Union." Martin then asked, according to McMurray, if he had heard about the charges-a presumed reference to the charge in Case 15-CA-6681. McMurray said that he had not, "not really"; and Martin closed the conversation by saying: "Will you keep me informed and I'll keep you in- formed?" Martin admitted that she had talked to McMurray about the Union, and that she had voiced her belief that "a hospital . . . is no place for the Union." She denied ever asking McMurray how he felt about the Union, but admitted saying to him: "Now, Marvin, as far as how you feel about it, I can only give you my feelings about the Union." To the extent that their versions differ, McMurray is credited. His demeanor and recall were im- pressive, while Martin's denials simply lacked conviction. Della Jones, a housekeeper for Respondent, testified credibly and without reputation that, on or about Febru- ary 16, following an employee meeting called by man- agement concerning the Union, Martin asked her what had happened in the meeting and how she felt about the Union. Conclusions: It is concluded that Martin violated Sec- tion 8(a)(1) as alleged by interrogating McMurray and Jones about their union feelings, and by ending her con- versation with McMurray by asking him to keep her in- formed. from offering evidence in support of misconduct allegedly perpetrated by Sister Linda Constantin, Elaine Luther, and Marguerite Franks. 27 This is McMurray's version of Meade's remark. James Jackson, a laundry supervisor, also present, testified that Meade said: "Sister Mary don't want you up here on Saturdays]. She thinks you're doing union activity work.' Meade's version, while different in detail, was basically the same. He testified that it had been reported to him "on too many oc- casions," and especially on Saturdays, that McMurray had been "seen all oiver the Hospital," and that he consequently told McMurray, incidental to the schedule change "We are not going to pay you overtime for so- cializing among the hospital corridors." McMurray in fact had not been receiving overtime pay for his Saturday work, and suffered no loss of inciome because of the change in schedule. ST. FRANCIS HOSPITAL 193 K. Other Incidents-Eileen Corcoran Facts: Alma Reed, a housekeeper, testified that she had a March 10, 1978, conversation with Sister Eileen Corco- ran, an admitted supervisor in the conronary care unit, in which Corcoran said that the Union could do nothing for Reed "except start a strike and then there would be nothing but trouble." Corcoran denied such a conversa- tion. Reed's demeanor and sureness of recall were con- vincing. She is credited. Della Jones testified of a conversation with Corcoran on an unestablished date in which Corcoran asked how she felt about the Union. Jones replied, as she recalled, that it "probably would be good for the hospital," prompting Corcoran to state that it would not because, if one of Jones' children "was to get sick" during union picketing, she would be prevented from crossing the picket line to obtain care for it and it "would probably die." Corcoran admittedly had a conversation with Jones in March 1978 in which she asked Jones if she had seen and understood the campaign posters Respondent had put up around the Hospital. Corcoran testified that she was then called to the telephone, ending the conversation. She denied asking Jones how she felt about the Union-"I was well aware . . . that we could not interrogate them on their feelings about the Union." Jones' version is credited. She came across as the more sincere of the two. Conclusions. It is concluded that Corcoran violated Section 8(a)(1) as alleged by asking Jones how she felt about the Union, and by raising the specter of Jones' children dying for want of treatment during picketing; and by telling Reed, in conjunction with Respondent's heavy emphasis otherwise on strike violence and the Union's inability to accomplish anything without strik- ing, that the Union could do nothing for her except "start a strike" and cause trouble. L. Other Incidents-Sister Mary Cabrini Facts: On March 13, 1978, Catherine Thompson, a file clerk in the business office, was told to see Sister Mary Cabrini in the conference room. Cabrini was an RN and an admitted supervisor. A "very quick conversation" ensued, according to Thompson, in which Cabrini said that, "if the Union comes into the Hospital and you don't join . . . they could find out where you live and how you get to work and who your family was." Thompson, who had just finished "a bad day at work," related that she then told Cabrini "some of the things that had happened to me," and Cabrini responded by expressing sympathy and telling Thompson to look her up if she ever needed her. Cabrini did not testify. Conclusions: It is concluded that the evidence is too ambiguous to sustain the allegations that Cabrini "solicit- ed employee grievances" and "threatened an employee with union retaliation" by her remarks to Thompson. M. Other Incidents-Cynthia Rogers Facts: Cora Wiley, a surgical aide, testified that she had a conversation with Cythia Rogers, apparently in March 1978,28 in which Rogers asked Wiley how she thought the employees felt about the Union. Wiley re- plied, as she recalled, that she thought the employees were "going to put the Union through," whereupon Rogers, first acknowledging that "I'm not supposed to ask you this particular question," asked Wiley how she intended to vote. Rogers, in her testimony, seemed to deny by implica- tion that the conversation went as Wiley described. Rogers admitted, however, that Wiley had denied to her that she and her family were "involved in this union ac- tivity," raising a large probability that a question had been put. For that reason, and because Wiley seemed to be a most earnest witness, her recital is credited. Conclusion. It is concluded that Rogers violated Sec- tion 8(a)(1) substantially as alleged by interrogating Wiley as to how she intended to vote and how she thought the employees felt about the Union. CONCLUSIONS OF LAW 1. By interrogating an employee as to how she felt about the Union, how she intended to vote in the NLRB election, and how she thought other employees felt about the Union; by asking employees to report card so- licitation and other union activities and developments; by changing an employee's work schedule to frustrate his perceived union activities; and by closing an office door, requiring an employee to report whenever leaving her desk, having a supervisor accompany that employee when the employee went to the lounge to smoke, and otherwise imposing restrictions on the employee's move- ments around the Hospital to prevent her engagement in union activity, all as found herein, Respondent in each instance violated Section 8(a)(1) of the Act. 2. By telling employees that Respondent did not have to or would not bargain with the Union, that employee loans would be discontinued "as long as union activity was going on," and that anyone signing or "caught" with union cards or signing a card "on hospital time" would be terminated or punished "to the maximum"; and by saying to an employee that she could "pass more cards" behind a closed door than an open door, and that she should be careful where she went and what she said because she was being watched and reported upon, thereby creating the impression that her union activities were under surveillance, all as found herein, Respondent in each instance further violated Section 8(a)(l). 3. By requiring an employee to remove her union pin, and by disallowing employees to wear union jackets throughout the hospital premises; by issuing and enforc- ing a rule prohibiting employees from soliciting on behalf of the Union even during their nonworktime and even in areas other than immediate patient care areas, and by otherwise prohibiting employees from soliciting for the Union at times and in places where antiunion and other solicitation is permitted; by threatening employees that the respiratory therapy department would or could be contracted out should the Union get in: and by telling an employee that Respondent would not give any money 2' Wile) placed the con'ersation a few da' after n¢ f the mnl.ll group meetings moderated hy Roger, and James Meade ST FRANCIS HOSPITAL 193 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for raises "until the union activities ceased," all as found herein, Respondent in each instance committed addition- al violations of Section 8(a)(l). 4. By encouraging employees to complain to manage- ment about their working conditions and holding out the prospect of remedial action for the purpose of undermin- ing support of the Union; by promising to hold future employee meetings "so we could all sit down and com- municate with each other about our problems and solu- tions to those problems," again to undermine support of the Union; and by promoting the formation of an in- house committee to represent the LPNs in dealing with management concerning their conditions of employment, and conducting a poll to select members for such a com- mittee, also to undermine the Union, all as found herein, Respondent in each instance committed yet further viola- tions of Section 8(a)(l). 5. By making promises to employees that a wage and salary survey being conducted by Delta Management Company would result in adjustments of wages and sala- ries, but only if the Union did not get in, and that "things would be better," etc., under the new hospital leadership; and by threatening that, if the Union were voted in, wages would revert to the statutory minimum, fringe benefits would be "cut out," and bargaining would start "from there," all as found herein, Respondent in each instance additionally violated Section 8(a)(l). 6. By its repeated emphasis on the likelihood of a strike should the Union get in, and its attendant emphasis on strike violence and job-loss through strikers replace- ment, as found herein, Respondent conveyed to employ- ees the impression that their selection of the Union to represent them would be both a futility and a cause of economic harm and physical danger, and in so doing fur- ther violated Section 8(a)(1). The Objections Many instances of misconduct detailed above occurred during the "critical period" after the January 16, 1978, filing of the election petition. It is concluded that this misconduct is sufficient to overturn the election. [Recommended Order omitted from publication.]