Broad Street Hospital

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Broad Street Hospital and Medical Center and National Organizing Committee of Hospital and Nursing Home Employees , affiliated with Local 1199-RWDSU- AFL-CIO. Case 4-CA-4970 May 4, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On February 11, 1970, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recommended dismissal as to them Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief,' and the General Counsel filed cross-exceptions and an answering brief. Pursuant to provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respond- ent, Broad Street Hospital and Medical Center, Philadel- phia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' The Respondent has requested oral argument This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER, Trial Examiner: This proceeding, with all the parties represented, was heard on November 12 and 13, 1969, in Philadelphia, Pennsylvania, on the complaint of the General Counsel issued on September 19, 1969 ,' as subsequently amended, and the amended answer of Broad Street Hospital and Medical Center, herein called the Respondent . In issue are the questions whether the Respondent , in violation of Section 8(a)(I) and (5 ) of the National Labor Relations Act, as amend- ed,2 refused to bargain with National Organizing Commit- tee of Hospital and Nursing Home Employees , affiliated with Local 1199-RWDSU-AFL-CIO, herein called the Union , as the duly designated representative of the Respondent 's employees in an appropriate unit; uni- laterally granted wage increases and instituted vacation and hospitalization plans without first notifying the Union and discussing the contemplated action with it; and promised benefits to undermine the Union . At the close of the hearing the Union made an oral statement' of its position on which the other parties commented . There- after , the General Counsel and the Respondent submitted briefs. Upon the entire record, and from my observation of the demeanor of the witnesses , and with due consider- ation being given to the arguments advanced by the parties , I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The Respondent , a partnership3 doing business under the trade name and style of Broad Street Hospital and Medical Center, is engaged in the operation of a proprie- tary hospital in Philadelphia , Pennsylvania , During the past year its gross revenues derived from this operation exceeded $250,000. In the same period it purchased, in the course and conduct of its business , goods and products valued in excess of $ 10,000 which originated outside the Commonwealth of Pennsylvania. It is admitted, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED It is conceded that the Union is a labor organization within the meaning of Section 2(5) of the Act. ' The complaint is based on original and amended charges filed on July 8 and August 28, 1969, respectively, copies of which were duly served on the Respondent by registered mail on the dates of filing 2 Sec 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 " Insofar as pertinent, Sec 7 provides that "[e]mployees shall have the right to join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Sec 8(a)(5) makes it an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees," designated by a majority of them in an appropriate unit 9 At all times material herein, the partnership consisted of Doctors Abraham Cohen, Jacob Freedman, Jacob Krause, Harold Lefkoe, Jacob Rosen, Harry Shubin, Edward I Siegel, Raymond Silk, Samuel Sugar- man, Nathan Steinberg, and Stanley Weinstein Until his death on April 26, 1969, David Weissman was also a partner and served as administrator of the hospital 182 NLRB No. 44 BROAD STREET HOSPITAL & MEDICAL CENTER 303 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Recognition of the Union; the card check During the time of these events, the Respondent's hospital was managed by two partners, Dr. Harry Shubin, as medical director, and David Weissman, now deceased, as administrator, both of whom were responsible to a five-man executive committee on which they also served as permanent voting members.' On February 27, 1969,5 the Union notified the Respondent by letter that a majority of the Respondent's service and mainte- nance employees had designated the Union as their collective-bargaining representative and that it requested recognition. The next day, the Union filed with the Board a representation petition for an election (Case 4-RC-8172). On or about March 10, John Black, the Union's area director, and Phillip Baer, its attorney, met with Administrator Weissman and Company Attor- neys Jacob Hart and James Leyden at the latter's law offices. Arrangements were there made for a check of the Union's authorization cards with the understanding that, if the Union thereby proved it enjoyed majority support, Weissman would recognize and bargain collec- tively with it. Accordingly, on March 17, the same individuals again met at the offices of the Respondent's attorneys After the parties agreed upon the composition of the appropriate unit , which is substantially the same as that alleged in the complaint herein and conceded to be appropriate for collective-bargaining purposes," Attor- neys Hart and Baer retired to a separate room where they checked the signatures on the authorization cards against the Respondent's current payroll and the signa- tures on the employees' withholding slips. As a result of the card check, the attorneys determined that the Union did in fact represent a majority of the employees in the appropriate unit and so reported to Weissman and Black. Thereupon, Weissman orally extended recog- nition to the Union and a date was set for the first The partnership agreement provides, in pertinent part 6 Administration of Partnership Affairs The executive functions of the partnership pertaining to medical matters shall be carried out by a medical director The administrative functions of the partnership shall be carried out by an administrator The medical director and the administrator are authorized, jointly, to execute any and all documents on behalf of the partnership in the scope of the normal operations of the partnership business The medical director and administrator shall regularly apprise the executive committee of their mutual activities, and such activities shall be subject to approval or veto by the executive committee Unless otherwise specified, all subsequent dates relate to 1969 Specifically, the unit is described in the complaint as consisting of all kitchen employees, housekeeping employees, nurses aides, practical nurses and pratical nurses licensed through waiver employed by Respondent at its Philadelphia, Pennsylvania, hospital, but excluding the chief cook and assistant cook in the dietary department, registered nurses, licensed practical nurses, administra- tive employees and supervisors as defined in the Act bargaining conference. Although Black requested a writ- ten statement of recognition signed by Weissman, which the Respondent's attorney prepared the next day and submitted to Weissman for signature, it was not signed nor was such a statement ever given to Black. However, as will later be discussed, the parties 2 weeks later opened contract negotiations. On March 18, at the sug- gestion of the Respondent's attorneys, Black withdrew the representation petition he had previously filed. 2 Preliminary discussions; subsequent contract negotiations In anticipation of contract negotiations, and at the request of Administrator Weissman, Union Representa- tive Black conferred with him and Dr. Jacob Freedman, a partner, on March 20, to consider the parties' future relationship. Black was informed of the Respondent's plans to sell the hospital about January 1, 1970, and its hope that the Union would be moderate in its econom- ic demands because the amount of profits earned by the Respondent would determine the hospital 's sales price. Weissman also suggested that the duration of any negotiated contract be limited to 9 months, after which time, when the new owners assumed control, the Union could seek a more favorable agreement. This led to a general discussion of various terms and condi- tions of employment in which the Union was interested, with details to be worked out at subsequent bargaining meetings. The first bargaining session was held at the hospital on March 31 or April 1.7 In attendance were Weissman and Dr. Shubin on behalf of the Respondent and Black and a committee of five employees representing the Union. At the outset, the parties agreed to revise slightly the composition of the bargaining unit in which the card check had been previously conducted so as to include several additional employees whose authorization cards Black produced. After Black submitted a list of demands and a sample collective-bargaining agreement to Weissman, the parties discussed various terms and conditions of employment. Although Shubin did not remain throughout the entire meeting ," a number of the Union's demands were considered in his presence, such as, a nondiscrimination clause, a hiring provision, and overtime. In addition, Shubin raised the question whether the Union would interfere with patient care in the course of settling grievances in the hospital. Negotiations continued after Shubin's departure. Shubin testified that, on leaving the meeting, he told Weissman to gather all the information and that they would talk it over later in the day. However, he further testified, when he asked Weissman after the meeting what had happened, Weissman answered that he was In view of the presence of the employee committee at this meeting, the nature of the discussions, and the sequence of events, I find that Dr Shubin was mistaken in his testimony that this meeting occurred in the middle of February " It is not particularly necessary to determine whether Shubin remained at the meeting about 15 minutes, as he testified, or more, as Black recalled 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tired and was going home but would talk to him some other time. According to Shubin, his subsequent efforts to discuss the meeting with Weissman were equally futile, with Weissman simply indicating that nothing of importance occurred there. Three other bargaining sessions were-thereafter held at the hospital on successive weeks between Weissman and Black and the employee committee. Neither Shubin nor any other management representative participated in those negotiations . At the last meeting,, on April 21, the parties purportedly reached agreement on all terms and conditions of employment but, before reducing their agreement to contract form, Black drafted a memo- randum of the agreed-upon points which he submitted to Weissman the next day. Upon receiving Weissman's approval, Black convened the employees who ratified the agreed-upon points and authorized the Union to execute a formal contract. 3. Weissman's death; the Respondent's withdrawal of union recognition; alleged loss of majority On April 26, before the final draft of the parties' agreement could be presented to Weissman for execu- tion , Weissman died suddenly. Upon learning this, Black called the hospital and was advised that Dr. Shubin and Dr. Raymond Silk, another partner, temporarily assumed Weissman's functions until a successor was found. On the following Monday, April 28, Black com- municated with Shubin and informed him that an agree- ment had previously been reached with Weissman and that wage increases were about due to go' into effect Shubin replied that the hospital was in a state of confu- sion and requested 2 weeks to secure a new administra- tor. In the meantime, Shubin suggested, that a copy of the asserted contract be furnished to Silk and the Respondent's attorneys.' Approximately 2 weeks later, Black personally deliv- ered a copy of the putative agreement to Silk,10 who stated that he would have company attorneys review the document, although he did not anticipate any prob- lems. Black urged prompt action because of the effective date of the wage increases therein provided Subsequent- ly, Black telephoned one of the Company: s attorneys regarding the contract and was informed that an associate in his firm specializing in hospital matters would review it. In a later telephone conversation, Company Attorney Hart told Black that there were several questions of language he would like to discuss with him. Accordingly, a meeting was arranged for May 26 to be attended by John H. Docktor, the newly hired administrator who had assumed his duties in the middle of May. However, before the date of the scheduled meeting, Hart called Black and canceled it on instructions from Docktor. He told Black that Docktor had advised him that another union , not otherwise identified, had Black apparently had a similar conversation with Silk " Shubin claimed at the hearing that he had never seen a copy of the purported agreement nor was one submitted to the executive committee for approval appeared in Docktor's office, claiming to have a collec- tive-bargaining agreement which had previously been consummated with Weissman Hart further commented that, under these circumstances, it would be best if the Labor Board adjudicated this matter." Concerning his reason for canceling the May 26 meet- ing, Docktor testified that Dr. Silk" told him that he had heard from Weissman that a Teamsters union was interested in representing the Respondent's employees and had made "some overtures." Docktor further tes- tified that he thereupon conveyed this information to Attorney Hart and requested him to call off the meeting to enable him (Docktor) to investigate this rival union situation. Significantly, no probative evidence was adduced at the hearing that any rival labor organization, at any relevant time , had made a claim to represent the Respondent's employees here involved, much less that it had entered into a collective-bargaining agreement with Weissman There can be no doubt that, following his employment as administrator, Docktor learned from company counsel and other sources that the Union claimed to represent the hospital employees; that a card check had been conducted establishing the Union's majority status; and that the Union maintained it had negotiated a contract with Weissman. In addition, it is conceded that since about May 26, although requested, the Respondent has continuously refused to bargain with the Union. When asked at the hearing for an explanation for his refusal, Docktor answered that he was confused and needed more information because there were other unions on the scene-an assertion undeniably unsubstantiated On July 8, the Union filed a charge in this proceeding alleging , among other things, an unlawful refusal to bargain since on or about May 26. In response, company counsel sent a letter to a Board agent on July 18 which stated that the Respondent refused to bargain with the Union "solely because, on the basis of reliable informa- tion, the hospital does not believe that the union repre- sents a majority of its employees." Amplifying its rea- son, the letter explained that the Respondent's "current belief that the charging union represents very few of the employees" was derived from information furnished by Virginia Ross who, on the basis of conversations with employees in early June, estimated that approxi- mately 80 percent of the hospital's 104 employees no longer wished the Union to represent them. Moreover, the letter stated, Ross, on her own initiative, prepared and circulated a petition among the employees canceling their authorization cards and withdrawing their designa- tion of the Union to represent them, which petition was also signed by approximately 80 percent of the employees. Docktor testified that he conveyed the above informa- tion which he had obtained from three employees Speci- " On May 21, the Union filed a charge in Case 4-CA-4921 , alleging a refusal by the Respondent to execute a negotiated agreement, in violation of Sec 8(a)(5) and (1) of the Act This charge was withdrawn on July 8 when the one in the present case was filed " Silk was not called as a witness BROAD STREET HOSPITAL & MEDICAL CENTER fically, • he related that Margaret Murrell, 'a licensed practical nurse, and Francis Redman, a maintenance worker, had told him that they did not want a' union and that Ross had informed him that she had a number of signed petitions to the same effect Docktor further testified that he did not examine the petitions because he was "afraid" to do so. Admittedly, the three named individuals are not included in the bargaining unit 4. Docktor's meetings with employees Docktor held two meetings with employees in the hospital dining room. The first was within 2 weeks after he became administrator and the second several weeks later. When Union Representative Black learned from employees of the first scheduled' meeting, he appeared there but was asked to leave by Docktor because he was not an employee 13 Docktor utilized these occasions'" to introduce himself as the successor to Weissman, whose sudden death, he observed, created confusion in the hospital. Empha- sizing that everyone's primary consideration should' be to see. that the patients were given proper care and attention, Docktor expressed the desire to establish a friendly, personal relationship with the employees and to follow an open door policy whereby employees would not hesitate to bring their problems to him. He also asked the employees to give him 2 months to familiarize himself with the hospital's conditions and problems and to develop "a program." In the course of the meetings, employees raised the subjects of wage increases and the fact that kitchen employees, unlike others, were not enjoying paid holidays. Docktor commented on these matters, as well as on such matters as hospitalization benefits and uniforms for the men. While I am not persuaded that Docktor made outright promises to increase wages or make other improvements in working conditions, he did indicate that he would investigate the situation to see what could be done. Specifically referring to the uniforms, Docktor noted that it was established company policy for the men to be given uniforms, although he observed that they actually were not wearing complete uniform outfits. When questioned by an employee concerning his union attitude, Docktor replied that he thought management could do more for, the employees than anyone else but that it was the employees' choice whether they wanted a union.'' 13 Within a few days after Docktor became administrator, Black telephoned him for an appointment Doctor told Black that he was too busy to see him at that time Several days later, Black again called and a meeting was arranged for a Friday which was a day after the first employee meeting However, Black did not keep that appointment i" No particularly useful purpose will be served to try to determine what transpired at each meeting 'i The above findings are based on portions of the combined testimony of Docktor and employee Harris which I believe reflect the probable truth 305 5 Unilateral wage increases and institution of new 'hospitalization and vacation programs Some time after Docktor's meetings with the employ- ees, the Respondent granted employees wage increases in the latter part of June; secured Blue Cross and Blue Shield hospitalization benefits for the employees at no cost to them; and instituted a formal vacation program. It is undisputed that this action was unilaterally taken without notifying the Union or affording it an opportunity to discuss these matters with the Respond- ent. ' - According to Administrator Docktor, he granted the wage increases on the basis of merit in accordance with the Company's established policy, after personally observing the employees' work performance, consulting with departmental heads, and reviewing each individual's record with the bookkeeper. As a result, all but 8 out of the Respondent's total employee roster of 122 (which apparently included nonunit employees) received raises. Of the eight employees, it appears that several were accidentally overlooked. In addition, Docktor tes- tified', he decided, in the interest of uniform administra- tion, to fix the end of June as the only date for considering employees for wage increases.'6 With respect to hospitalization benefits, it appears that previously the Respondent had an informal practice, evidently not'known to all employees, whereby employ- ees could get free medical treatment at the hospital, if they so desired, and. be hospitalized without charge if they did not have hospitalization insurance. According to',Dr Shubin, two..employees were hospitalized free at the Respondent's facility in 1969. In June, the Respondent' instituted a Blue Cross- Blue Shield insur- ance program for its employees with coverage rights for their families if the employees paid an additional premium. The Respondent asserts that it made the change at the instance of several insurance carriers who claimed that the Respondent's practice of free treatment resulted in higher charges to paying patients insured by their companies., As indicated above, the Respondent also instituted a uniform vacation policy. Previously, vacations were handled on a departmental basis, varied from department to department, and caused uncertainty, as to employee rights. Under the new formalized program, some employ- ees benefited while others were disadvantaged " " The record indicates that wage increases were previously given to a number of employees in January and March 1969 Docktor testified that he was informed that they were merit increases The nature of those increases, however, was not substantiated Docktor also admitted that he was not familiar with the nature of wage increases given in 1967 or 1968 '7 The General Counsel does not contend that the Respondent unilater- ally instituted a new paid-holiday program In fact, the record indicates that the Respondent always had such a policy, although it was not followed for kitchen employees, and that Administrator Docktor appar- ently rectified this situation Similarly, there was an established policy regarding the wearing of uniforms by male employees which Docktor simply effectuated Here too no contention of unlawful unilateral action is made 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B Concluding Findings 1. With respect to the refusal to recognize and bargain As discussed above, following a card check conducted by the attorneys for the Respondent and the Union, Administrator Weissman recognized the Union as its employees' bargaining representative in an appropriate unit and engaged in contract negotiations over a 3- week period which the Respondent refused to resume after Weissman's sudden death. It is the General Coun- sel's position that the Respondent thereby breached its statutory obligation in violation of Section 8(a)(5) and (1) of the Act. It is well settled that, absent conflicting union claims," an employer may lawfully recognize a labor organization as the exclusive representative of his employees in an appropriate unit on a card-based majority.'' Once recog- nition is thus validly accorded the union, the Board has held that, as in the case of certifications, refusal- to-bargain orders, and settlement agreements, the parties are entitled to a reasonable time to negotiate a collective- bargaining agreement, regardless of an interim loss of majority or an intervening representation claim of anoth- er union.20 Accordingly, the Board has found that an employer defaulted in his bargaining obligation in viola- tion of Section 8(a)(5) of the Act where after the first bargaining session the employer withdrew recognition on the gound that the union, which had previously been lawfully recognized, no longer represented a majori- ty of the employees as a result of a substantial employee turnover,21 or employee disaffection.22 Conversely, the Board has upheld a union security agreement concluded by an employer with a voluntarily recognized majority representative within a reasonable time after recognition, even though at the time of the execution of the contract the union had lost the support of a majority of the employees.23 There is no question that the Union herein had demon- strated its majority status in an appropriate unit by a fair, accurate, and honest check of the Union's authori- zation cards by the attorneys for the Respondent and the Union It is also perfectly clear that no probative evidence was adduced that at the time of the card check or, indeed, at any subsequent time, any rival union made any conflicting claim to represent the unit employees. While initially the Respondent refused to meet with the Union after Administrator Weissman's " See Midttest Piping and Suppl) Co . Inc , 63 NLRB 1060, where the Board established the principle that an employer should not himself resolve a question of representation resulting from conflicting claims by rival unions but should leave the issue to be resolved by the process of a Board election " N L R B v Gissel Packing Co .395 U S 575, 595-600 sn Keller Pastics Eastern, Inc , 157 NLRB 583, Ozella Harrington, dlbla Kimbrough Trucking Co , 160 NLRB 954, San Clemente Publishing Corporation 167 NLRB 6, cf Allied Supermarkets, Inc , 169 NLRB 927 21 Kimbrough Trucking Co , supra 22 San Clemente Publishing Corporation, supra, see also Universal Gear Service Corporation 157 NLRB 1169 11 KellerPlastics, supra death because of such supposed-and certainly unproved-rival union claims, it apparently no longer relies on this ground. Nor does the Respondent now rest on its challenge to the Union's continuing majority status which it first advanced in its July 18 letter to a Board agent as the sole justification for its refusal to resume bargaining. Plainly, such a challenge would not only be legally untenable but also would be factually unsupported by the record. From the foregoing it inesca- pably follows that the Union was the employees' lawfully recognized representative entitled to a reasonable time within which to bargain for a contract and, since the Respondent refused after Weissman's death to resume negotiations in which the parties had engaged over a period of only some 3 weeks, the Respondent, under controlling percedent'24 defaulted in its statutory obliga- tion, unless there is merit in its latest defense urged for the first time at the hearing. The Respondent contends that Weissman's acts in agreeing to the card check, recognizing the Union, and engaging in contract negotiations were not authorized or ratified by the Respondent and therefore were not binding on it. From this, the Respondent's argument continues, it is under no obligation to bargain with the Union until the Union established its majority status in a Board-conducted election under the principle of the Gissel case I find the Respondent's position unsup- ported by the facts or the law As shown above, Weissman was a partner, serving until has death as the top administrative official of the hospital and as a permanent member of the executive committee of the partnership. Both in connection with the card and the consequent recognition of the Union, he was represented on behalf of the Respondent by the Respondent's attorneys, one of whom verified the Union's card-based majority status. Preceding contract negotiations, Dr. Freedman, another partner, participat- ed with Weissman in preliminary discussions with Union Representative Black concerning the Union's general economic demands and their potential effect on the Respondent's contemplated sale of the hospital. There- after, Dr. Shubin, the Respondent's medical director and permanent member of its executive committee, attended part of the first bargaining session with Weiss- man, during which time several of the Union's proposed terms and conditions of employment were considered. Significantly, although Weissman was permitted subse- quently to carry on his dealings with the Union by himself, never was the Union alerted to his purported limited authority. It is inconceivable to me that the Respondent was unaware of the card check or the true nature of Weissman's negotiations with the Union. Indeed, it places an unreasonable strain upon credulity to accept Shubin's testimony that Weissman was without authority to engage in collective bargaining with the Union; that he was only authorized to embark on an exploratory "fact-finding mission" with representatives 24 See In 20 , supra , cf Snow & Sons, 134 NLRB 709, enfd 308 F 2d 687 (C A 9), Kellogg's Inc , 147 NLRB 342, enfd 347 F 2d 219 (C A 9), Di von Ford Shoe Co , Inc . 150 NLRB 861 BROAD STREET HOSPIT .L & MEDICAL CENTER of various labor organizations for the purpose of "just finding out what the unions had to offer or what their thoughts were", and that Weissman "simply reported [to the executive committee] very lightly that he was talking to representatives of the unions." It is also not without significance that the Respondent did not produce any probative evidence of any rival union inter- est or activity. Fortifying the view that Weissman was empowered to recognize the Union and engage in contract negotia- tions is the fact that at no time after Weissman's death did Dr. Shubin, Dr. Silk, company attorneys, or Adminis- trator John Docktor, Weissman's successor, question Weissman's authority or disavow his acts when Union Representative Black apprised them that an agreement had been reached on terms and conditions of employment and sought to resume negotiations 25 Not surprisingly, the Respondent's attorneys, in their July 18 letter sent in response to the Union's charge in the present case, did not attribute the Respondent's refusal to bargain to any lack of authority on Weissman's part to establish a bargaining relationship Considering all the facts and circumstances herein, I find it reasonable to infer that Weissman acted within the scope of his authority in recognizing and engaging in contract negotiations with the Union '26 or, at least, that his acts were acquiesced in and ratified by the Respondent.27 In any event, the record persuasively demonstrates that the Respondent cloaked Weissman with apparent authority to deal with the Union as the employees' collective-bargaining representative and that the Union believed and had good reason to believe that Weissman possessed the authority he exercised .21 In sum, I conclude that the Respondent, contrary to its contention, was bound by Weissman's recognition of the Union and that its refusal to resume negotiations after Weissman's death violated Section 8(a)(5) and (1) of the Act,29 whether or not the Union lost majority support.39 I further find that neither his conclusion nor the bargaining order hereinafter recommended is preclud- Z' The fact that the Union's initial charge in Case 4-CA-4921, alleging a refusal to execute this agreement, was subsequently withdrawn and no complaint issued charging such unfair labor practice clearly does not preclude a finding that Weissman's recognition of the Union was valid and binding on the Respondent and that the latter's refusal to resume negotiations violated Sec 8(a)(5) and (1) of the Act I Restatement of Agency 2d, Sec 7 Id . Sec 82, et seq zN Id , Sec 8 See also Sec 2(13) of the Act which specifically provides that "[i]n determining whether any person is acting as an 'agent ' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling - ' In this connection, I find totally unconvincing Shubm's testimony concerning Weissman's purported physical and mental incapacity to conduct the hospital's business or to deal with the Union It is noteworthy that Shubin admitted that Weissman's alleged condition was not readily apparent to laymen, that the Union was not alerted to Weissman's alleged condition, and that Weissman was permitted to conduct the Respondent's business and deal with the Union '" Ora Skiles, Jr, dl bl a Overhead Door Compans of Modesto 178 NLRB No 67, is plainly distinguishable on its facts 3" It is noted that the alleged loss of majority, if it had occurred at all, was after the Respondent's unlawful refusal to bargain 307 ed by the Supreme Court's decision in Gissel,ui even though, as the Respondent argues, it was not guilty of any serious unfair labor practices which would make impossible the holding of a fair and impartial Board election. The Court specifically pointed out in the cited case (601, fn 18) that it was not there "faced with a situation were an employer, with `good' or `bad' subjective motivation, has rejected a card-based bargain- ing request without good reason and has insisted that the Union go to an election while at the same time refraining from committing unfair labor practices that would tend to disturb the `laboratory conditions' of that election."32 2. With respect to unilateral changes in terms and conditions of employment In view of my determination that the Respondent was under the statutory obligation to bargain with the Union as the exclusive representative of the Respond- ent's employees in an appropriate unit, I find that its failure to notify and discuss with the Union the contem- plated wage increases to employees33 and the institution of the new hospitalization and vacation programs amounted to a refusal to bargain in violation of Section 8(a)(5) of the Act, irrespective of the Respondent's overall good or bad faith.34 As this conduct also tended to undercut the Union's status as the employees' exclu- sive bargaining representative, the Respondent further violated Section 8(a)(1) of the Act However, I find that the record does not sustain the allegations of the complaint that the Respondent unilaterally granted holi- days in violation of the Act and accordingly I recommend dismissal of such allegations. 3. With respect to unlawful promises of benefits I find insufficient evidence to substantiate the allega- tions of the complaint that the Respondent independently violated Section 8(a)(1) of the Act by promising employ- ees better wages, holidays, and hospitalization benefits for the purpose of undermining the Union. Accordingly, dismissal of these allegations is recommended. " NLRB v Gissel Packing Co , Inc , 395 U S 575, 614, 615, where the Supreme Court ruled that the Board is empowered to issue a bargaining order to remedy unfair labor practices "so coercive that, even in the absence of a Section 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those" unfair labor practices In addition, the Court held that where the unlawful conduct is less pervasive the Board may find an 8(a)(5) violation and issue a bargaining order if the possibility of erasing the effects of past [unfair labor] practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and [therefore] employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order " Pertinently, the Supreme Court noted in Gissel, at 594, the Board's adherence to its rule "that an employer could not refuse to bargain if he knee, through a personal poll for instance , that a majority of his employees supported the union Cf Snow & Sons, and list of cases cited in fn 24, supra 3' From a factual point of view, it is perfectly clear that, contrary to Administrator Docktor's characterization, the wage increases were not based on merit 11 N L R B v Benne Katz, et al, 369 U S 736 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF.THE UNFAIR LABOR PRACTICES UPON COMMERCE ., . The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States,,and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, I recommend that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and in any like or related conduct and take certain affirmative action designed to effectuate the poli- cies of the Act. To remedy the Respondent's unlawful refusal to fulfill its statutory obligation, I recommend that it be directed to bargain, on request, with the Union, as the exclusive representative of its employees in the appropriate unit described above and, if any understanding is reached, embody such understanding in a signed agreement. In addition, the posting of a notice is also recommended. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All kitchen employees, housekeeping employees, nurses aides, practical nurses and practical nurses licensed through waiver, employed by the Respondent at its Philadelphia, Pennsylvania, hospital, but excluding the chief cook and assistant cook in the dietary depart- ment, registered nurses, licensed practical nurses, admin- istrative employees, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At- all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing since on or about May 26, 1969, to recognize and bargain collectively with the Union, as the exclusive representative of the employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By unilaterally granting employees wage increases and hospitalization insurance benefits without cost to them and instituting a new, fromalized vacation program, without first notifying the Union and affording it an opportunity to bargain over these matters, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. ,7. By the foregoing conduct the Respondent has inter- fered with, restrained, and coerced employees in the -exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. - 8. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 9. The Respondent has not violated Section 8(a)(1) of the Act by promising employees wage increases or other benefits. RECOMMENDED ORDER Upon the basis of the above-findings of fact, conclu- sions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the Respondent, Broad Street Hospital and Medical Center, Philadelphia, Pennsylvania, its partners, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with National Organizing Committee of Hospital and Nursing Home Employees, affiliated with Local 1199-RWDSU- AFL-CIO, as the exclusive representative of the Compa- ny's employees in the unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employment: All kitchen employees, housekeeping employees, nurses aides, practical nurses and practical nurses licensed through waiver, employed by the Respond- ent at its Philadelphia, Pennsylvania, hospital, but excluding the chief cook and assistant cook in the dietary department, registered nurses, licensed practical nurses, administrative employees, and supervisors as defined in the Act. (b) Making unilateral changes in employee wages, hospital benefits, vacations and other terms and condi- tions of employment, without first notifying and bargain- ing with the -above-named Union as the employees' exclusive bargaining representative. (c) In any. like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union, as the exclusive representative of its employees in the above-described unit, concerning rates of pay, wages, hours of employment, and other condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its hospital in Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix. "as 11 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, BROAD STREET HOSPITAL & MEDICAL CENTER Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representative, 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 mate- rial. (c) Notify the Regional Director for Region 4, 'in writing, within 20 days from the date of the Trial Examin- er's Decision, as to what steps the Respondent has taken to comply herewith.36 IT IS FURTHER ORDERED that the complaint, as amend- ed, be and it hereby is dismissed insofar as it alleges that Administrator Docktor promised employees wage increases and other benefits in violation of Section 8(a)(1) of the Act. be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's 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 be changed to read "Posted Pursuant to a Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 31 In the event that this Recommended Order is adopted by the Board this provision shall be modified to read "Notify the Regional Director for Region 4, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain collectively with National Organizing Committee of Hospital and Nursing Home Employees , affiliated with Local 1199-RWDSU-AFL-CIO, as the exclusive representative of the Company' s employ- ees in the unit described below, concerning rates 309 of pay, wages, hours of employment, and other conditions of employment: All kitchen employees, housekeeping employ- ees, nurses aides, practical nurses and practical nurses licensed through waiver, employed by the Respondent at its Philadelphia, Pennsylva- nia, hosptial, but excluding the chief cook and assistant cook in the dietary department, registered nurses, licensed practical nurses, administrative employees, and supervisors as defined in the Act. WE WILL NOT make unilateral changes in employ- ee wages, hospital benefits, vacations, or other terms and conditions of employment, without first notifying and bargaining with the above-named Union as the employees' exclusive bargaining repre- sentative. WE WILL NOT in any line or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act WE WILL bargain collectively, upon request, with the above-named Union, as the exclusive represent- ative of our employees in the above-described unit concerning rates of pay, wages, hours of employ- ment, and other conditions of employment and, If an understanding is reached, we will embody such understanding in a signed agreement. Dated By BROAD STREET HOSPITAL AND MEDICAL CENTER (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania 19107, Telephone 215-597-7601.