Guyan Valley Hospital, Inc.

GUYAN VALLEY HOSPITAL, INC. 107 Guyan Valley Hospital, Inc. and National Union of Hospital and Nursing Home Employees, Local 1199, W. VA., RWDSU, AFL-CIO Guyan Valley Hospital, Inc. and National Union of Hospital and Nursing Home Employees, Local 1199, W. VA., RWDSU, AFL-CIO, Petitioner. Cases 9-CA-6084 and 9-RC-8753 July 10, 1972 DECISION, ORDER, AND DIRECTION OF SECOND ELECTIONS and Convalescent Home, Inc, 196 NLRB No. 110, Respondent's rule was adopted before, and therefore not in response to, the Union's campaign; and, further, that the rule herein prohibits solicitation only in the hospital's "working area." Chairman Miller dissented from the finding of a violation in Summit, supra, but in any event agrees that the no-solicitation rule in the present case was lawful. Member Fanning dissents from the majority's conclusion that Respondent's broad no-solicitation rule is a valid rule. In his opinion there is no substantial distinction between the rule announced by the Respondent in this case and that considered by the Board in Summit Nursing, supra TRIAL EXAMINER'S DECISION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 31, 1972, Trial Examiner Sydney S. Asher issued the attached Decision in this proceed- ing. Thereafter, Respondent and the General Coun- sel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions 2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Guyan Valley Hospital, Inc., Logan, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. [Direction of Second Elections and Excelsior footnote omitted from publication.] i The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 2 In adopting the Trial Examiner's finding that the no-solicitation rule herein is lawful, we note that, unlike the rule condemned in Summit Nursing SYDNEY S. ASHER, Trial Examiner: This controversy stems from the efforts of National Union of Hospital and Nursing Home Employees, Local 1199, W. Va., RWDSU, AFL-CIO, herein called the Union, to become the statutory bargaining representative of the employees of Guyan Valley Hospital, Inc., Logan, West Virginia, herein called the Respondent. The representation proceeding was initiated by a petition filed by the Union in Case 9-RC-8753 on October 12, 1970. Thereafter, the Regional Director for Region 9 held a hearing at which Licensed Practical Nurses' Association of West Virginia, Inc., herein called the Association, intervened. In a Decision and Direction of Elections issued December 22, 1970, the Regional Director found that two separate units were appropriate for the purposes of collective bargaining: Unit A consisting of licensed practical nurses employed by the Respondent, with certain exclusions; and Unit B consisting of service and maintenance employees employed by the Respondent, with certain exclusions. He directed that two elections be held: in Unit A the employees were to vote on whether they desired to be represented for collective- bargaining purposes by the Union, by the Association, or by neither; in Unit B the employees were to vote on whether or not they desired to be represented for collective-bargaimng purposes by the Union. No party appealed the Regional Director's Decision to the Board. Pursuant to the Decision and Direction of Elections, the elections were conducted on February 4, 1971. In Unit A, a majority of ballots were cast for neither participating organization; in Unit B, a majority of ballots were cast against the Union. Thereafter, the Union filed timely objections to the conduct of the elections. The unfair labor practice case was initiated by a charge filed by the Union in Case 9-CA-6084 on February 10, 1971, and amended on April 20, 1971. The Regional Director issued a complaint on May 13, 1971, and thereafter the Respondent filed an answer. On May 28, 1971, the Regional Director issued his Supplemental Decision in Case 9-RC-8753, in which he concluded that certain of the Union's objections raised substantial questions of fact, which could best be resolved by a hearing. He further ordered that the two cases be consolidated. A consolidated hearing was held before me on Septem- 198 NLRB No. 28 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber 15, 16, and 17 and November 2, 3, and 4, 1971, at Logan, West Virginia. The General Counsel, the Union, and the Respondent were represented and participated fully in the hearing.' During the hearing, the General Counsel amended the complaint by eliminating certain allegations. Also during the hearing, accompanied by representatives of the General Counsel, the Union, and the Respondent, I visited the Respondent's hospital and viewed the premises from inside and outside . At the close of the hearing, the Respondent moved for dismissal of the complaint in Case 9-CA-6084. Ruling on the motion was reserved. For reasons which appear hereafter, the motion is granted in part and denied in part . After the close of the hearing, the General Counsel , the Union, and the Respon- dent filed briefs, which have been duly considered.2 At issue is whether the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act; whether it discriminatorily dis- charged two employees, Mary Harden and Jack Glandon, in violation of Section 8(a)(3) of the Act; and whether it engaged in conduct which warrants setting aside the election. Upon the entire record,3 and from my observation of the witnesses, I make the following: attempted to organize the Respondent's employees. In mid-September the Union began its campaign to organize these employees. On October 9, 1970, the Union by telegram addressed to the Respondent demanded recogni- tion as the collective-bargaining agent for the Respon- dent's employees. The Respondent did not reply and the Union shortly thereafter filed the instant representation petition. After issuance of the Decision and Direction of Elections in December 1970 a campaign ensued in which the Union and the Association sought employee support, and the Respondent, conversely, urged its employees to vote for no or neither in the forthcoming elections. Case 9-CA-6084 C. Interference, Restraint, and Coercion 1. By Dr. Erwin Chillag Dr. Erwin Chillag, a licensed physician, is, and at all material times has been, president and principal stockhold- er of the Respondent. The complaint alleges, the answer admits, and it is found that he is, and at all relevant times has been, a supervisor and/or agent of the Respondent within the meaning of the Act. FINDINGS OF FACT A. Preliminary Matters The complaint alleges, the answer admits, the Regional Director in his Decision and Direction of Elections dated December 22, 1970, has found, and it is now found that the Respondent is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards; 4 and that the Union is, and at all material times has been, a labor organization within the meaning of the Act. B. The Setting The Respondent's hospital operates around the clock and is never closed. The employees, of which there are approximately 75, work in three shifts: 7 a.m. to 3 p.m.; 3 p.m. to 11 p.m.; and I1 p.m. to 7 a.m. Prior to mid-September 1970, no union had ever 1 The Association was duly served with a copy of the order directing a consolidated hearing which was originally set for July 20, 1971 Subsequent- ly, the hearing was postponed until August 24, 1971, and again until September 15, 1971. Copies of the two orders postponing the consolidated hearing were not served on the Association The Association was not represented at the consolidated hearing Accordingly , it is found that the Association was denied an opportunity to be present and participate in the consolidated hearing However, in view of the ultimate disposition which I make herein of the Union's objections, the Association has not been prejudiced by having been deprived of the opportunity to participate in the consolidated hearing As I hereafter direct that new elections be conducted in both units, the Association will again be placed on the ballot in Unit A 2 In his brief, the General Counsel moved to reinstate a certain allegation of the complaint which he had withdrawn at the beginning of the consolidated hearing The motion is denied as untimely. 3 On the unopposed motion of the Union , I have taken official notice of a. Threats to and interrogation of Harden In mid-September or October 1970 Larry Harless, an agent of the Union, visited the Respondent's hopsital and there spoke to a number of employees, including Mary Harden, a licensed practical nurse (LPN).5 A few days later Chillag summoned Harden to his office. In the presence of Wilma Cook, the Respondent's manager, Chillag asked Harden if she had seen "a strange man or someone that looked like a union man" in the hospital; Harden replied in the negative. Next, Chillag inquired whether Harden had seen "any cards passed out" or had signed one. Again, Harden answered, "No." Chillag stated that "there had been a man there" and cards had been distributed. He added that he "would shut the hospital down before he would let a union come in there," and 'pointed out that "he could set up a private practice out in town, that he didn't have to run that hospital." Once more, he asked Harden if she was sure she "hadn't seen one of those parts of the transcript of proceedings at the preelection hearing in Case 9-RC-8753 which concern the status of Sterling Henderson 4 The Respondent is, and at all material times has been , a West Virginia corporation operating a proprietary hospital providing medical care services in Logan, West Virginia. During the 12 months prior to May 13, 1971, the Respondent's gross revenues from the operation of its hospital exceeded $250,000. During the same period the Respondent received at its hospital in Logan, West Virginia, goods valued at more than $50,000, which were shipped to it directly from sources outside the State of West Virginia See Extendicare, Inc, d/b/a St Joseph Infirmary, 194 NLRB No 51 5 Harless set this visit as occurring in mid-September 1970 Harden testified with regard thereto "I don't know if it was in September or 'October [19701.1 think it was September I'm not sure ." I am convinced that the visit took place either in mid-September 1970 or in October 1970 In my opinion, the record does not warrant any more specificity than that GUYAN VALLEY HOSPITAL, INC. the cards"; once more she denied it. This ended the conversation .6 Harden's responses to Chillag's questions during this conversation were admittedly false. It is found that Chillag's remarks upon this occasion constituted a threat of reprisal against the employees should they choose the Union as their bargaining repre- sentative. In this context, Chillag's questioning of Harden as to the circulation of union cards, and whether she had signed one, constituted illegal, coercive interrogation of an employee regarding activities protected by Section 7 of the Act. Such conduct is proscribed by Section 8(a)(1) of the Act. b. Threats to Glandon One of the employees who was active on behalf of the Union was Jack Glandon, an orderly. On January 8, 1971, while he was working, Glandon was called to Cook's office. There he found Chillag, Cook, Jenira Solchik, head nurse on the third floor, and Christine Rollins, the Respondent's office manager. According to Glandon: Mrs. Cook . . . kept saying something I didn't understand at all. Dr. Chillag was talking too. . . . He said before there'd be a G-D union, he'd close the hospital down, and he wasn't scared of no union officials, and as for me as spokesman for the union, he wasn't scared of me neither. So if I fooled with him one minute, he'd throw my G-D-A out of the hospital... . I didn't have a chance to say anything because Dr. Chillag and Wilma Cook were both talking at the same time and shaking their finger in my face, too. Although Chillag denied that the Union was mentioned in this discussion, I do not credit his denial.? In this outburst of temper, Chillag illegally threatened reprisals against the employees if they selected the Union to represent them and also threatened Glandon, whom he termed "spokesman for the Union," with discharge. In addition, by so describing Glandon to his face, he led Glandon to believe that he (Chillag) was aware of Glandon's role in the Union's campaign. Such actions interfere with the employees' protected rights. The Respondent's posted rules severely limit its employ- ees in remaining on the hospital premises when they are off duty. Glandon was not on duty on February 4, 1971, the day of the Board elections. That day, he acted as the Union's observer at the polls, which were open from 6:45 to 7:15 a.m., and from 2:15 to 3:15 p.m. About 1 p.m. (between the times the polls were open), Chillag observed 6 The findings regarding this incident are based on the testimony of Harden, who impressed me as a forthright , sincere, and candid witness. In my opinion, the fact that she hed to Chillag does not render her testimony at the hearing unreliable Chillag denied generally that he had ever threatened to close down the hospital . I do not credit his denial in this respect . Chillag is somewhat impulsive and admittedly a man of "many moods" and admittedly the possessor of a poor memory. He was at times uncooperative and hostile For example, when asked a question by the General Counsel's attorney, he responded "I don't know why I should have to tell you the facts of the case " r Chillag's memory of this event was hazy He described it as "a disciplinary meeting " He denied generally that he had ever discussed the Union with Glandon, or that he had ever told Glandon that he "would throw his God-damned ass out of the hospital " Although Cook, Solchik, and Rollins testified as witnesses for the Respondent, they were not questioned about this incident For these reasons, although generally 109 Glandon on the third floor of the hospital speaking to John McCoy, another orderly employed by the Respondent. Chillag directed Glandon to go into the operating room or the scrub room. There, in the presence of Margaret Hinkle, a registered nurse in the Respondent's employ, the following conversation took place, according to Glandon: He (Chillag) told me I wasn't nothing but a G-D troublemaker and he also said, if I didn't vote against the G-D union that I wouldn't have no job. . . . Then he up and said: "You see the door?" and I said "Yes," He said: "Hit it," and I went out... . Although Chillag related a somewhat different version of this conversation, I credit the above-described version of Glandon as more accurate.8 In this second instance of exhibiting anger toward Glandon, Chillag illegally threatened Glandon with dis- charge should he fail to vote "No" in the election, in violation of Section 8(a)(1) of the Act .9 2. By Wilma Cook Wilma Cook is, and at all relevant times has been, the Respondent's manager. The complaint alleges, the answer admits, and it is found that she is, and at all material times has been, a supervisor and/or agent of the Respondent within the meaning of the Act. The complaint alleges, and the answer denies, that "on three separate occasions during the months of September and October 1970" Cook interrogated "an employee" about her attendance at a meeting of the Union, and the identity of other employees who attended. These allega- tions were supported only by the testimony of Sterling Henderson, who related that, after attending a union meeting, she had been questioned by Cook at a time when no rank-and-file employee was present. Cook denied that she questioned Henderson. At the outset, it must be determined whether Henderson was then an "employee" as defined in the Act. At the representation hearing, the Union maintained that Hender- son was a rank-and-file employee, while the Respondent contended that she was a supervisor. Testimony on her status was taken, and in his Decision and Direction of Elections the Regional Director decided that she was an employee and, consequently, eligible to vote in the election. However, that determination is not binding in the instant complaint case.10 In the instant consolidated hearing the General Counsel and the Union took the Glandon did not impress me as a reliable witness, I credit his version of this particular conversation. B Neither side called Hinkle as a witness I do not draw any inference from the parties' failure to do so. Although the Union, in its brief, refers to Hinkle as a supervisor, the record does not indicate her supervisory status 9 The General Counsel in his brief maintains that Chillag on this occasion "threatened Glandon with bodily harm." I do not so interpret Glandon's testimony io Amalgamated Clothing Workers of America, AFL-CIO v N L R B, 365 F.2d 898, 905 (C A D.C.), Heights Funeral Home v. N LR B, 385 F 2d 879, 882 (C A. 5), N LR B v Smoky Mountain Stages, Inc, 447 F 2d 925, 927 (C A 4), Stanley Air Tools, Division of the Stanley Works, 171 NLRB No 48, and Dryden Manufacturing Company, Inc d/b/a Atlas Truck Body Manufacturing Company, 174 NLRB No. 46, In 2, enfd in pertinent part 421 F 2d 267 (C A. 5) 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position that Henderson was an employee; the Respondent did not take a position on the matter. Glandon, a witness for the General Counsel at the instant consolidated hearing, described Henderson as "over the housekeeping department." Henderson testified in the instant consolidated hearing as a witness for the General Counsel. On examination by the Union's attorney, she testified: Q. (By Mr. Kircher) Do you hire employees, Mrs. Henderson? A. No, I recommend. Q. Do you fire them? A. No, I don't, sometimes I have to recommend. Q. To whom do you recommend? A. To Mrs. Cook just one time I can remember, really. f i i Q. (By Mr. Kircher) What were your duties at Guyan Valley from September '70 through at least March of 1971? A. I check all the linen in. I keep it with the supplies, make a list of the supplies that the hospital needs in the cleaning line. I clean and I tell the boys what to do and I check the rooms and check the halls and when they don't do their work I report them and I work too. Q. What work do you do? A. I check on all linens- Q. You said you worked too. What work is that that you do? A. Well, I clean the floors, clean the windows and the blmds, stuff like that. Q. Do you make any decisions on your own, Mrs. Henderson? A. Sometimes I do. Q. What kind of decisions? A. Like what is best to do on the cleaning, what we should do first, like what would need cleaning, floors need stripping and stuff like that. Q. On those occasions when employees are going to be absent from work, who do they usually call in to? A. Most of the time they call Mrs. Rollins and sometimes they call me. I had a call the other night. Q. When they call you, what do you do? A. I usually check with' Mrs. Cook or Mrs. Rollins and see who we get to come in and take their place. Q. When you said you tell the boys what to do, what boys are these? A. Our orderlies. Q. How many of them are there? A. Well, we've got one, two, three, four, five, and one part time. Q. Now you testified that you recommended that an employee be hired? A. Yes, I have. Q. To whom did you make that recommendation? A. To Mrs. Cook. Q. tion? And what was the result of that recommenda- A. Some have been hired. Q. Who? A. Frank Hairston. s s s s • Q. How many other maids . . . or housekeeping employees are there working with you other than orderlies? A. One. t # R i • Q. All right. Did you say you tell orderlies what to do? A. Most of the time I do. Q. Did you ever tell Jack Glandon what to do? A. Yes, I have. In the representation proceeding, Henderson was called as a witness for the Respondent. When asked to describe her duties, she testified: "Well, I tell the orderlies what to do, the maids, I recommend for hiring. I recommend for firing." She further testified that she interviewed applicants for orderlies' jobs. In view of this testimony, it appears that Henderson may have possessed authority responsibly to direct other employees in the housekeeping department, the exercise of which was not of a merely routine nature. Further, she may have possessed authority effectively to recommend the hiring and discharging of employees under her. In the light of the entire record, including the transcript of the representation hearing, I conclude-with due respect to the Regional Director's determination- that, while the matter is not entirely free from doubt, the General Counsel has failed to prove by a preponderance of the evidence that at the time in question Henderson was an employee, as defined in the Act. Accordingly, this portion of the complaint (par. 5(b)) must be dismissed. 3. By Janira Solchik Janira Solchik, an LPN, is, and at all relevant times has been, head nurse on the third floor of the Respondent's hospital. The complaint alleges, the answer admits, and it is found that she is, and at all material times has been, a supervisor and/or agent of the Respondent within the meaning of the Act. She was a member of the Association and wore its emblem on her nurse's cap. It is undemed that she campaigned on behalf of the Association after it began its campaign for recognition in November 1970. Solchik's actions described below took place before the Association began its campaign, and the Respondent must be held liable therefor. a. Solicitation to sign the affirmation of support Probably in October 1970, while Harden was working, Solchik asked Harden to sign a paper reading: I DO SOLEMNLY AFFIRM 100% SUPPORT TO GUYAN VALLEY HOSPITAL AND DR. E. R. CHILLAG. WE FEEL THAT WE CAN WORK OUT GUYAN VALLEY HOSPITAL, INC. OUR PROBLEMS WITHOUT THE HELP OF OUTSIDERS. I Solchik told Harden that Chillag "had been good to all of us." Harden agreed. Solchik added that "we had four paid holidays and we had insurance and vacations and he [Chillag] was going to give us - a raise." Harden, however, did not sign the paper. On three or four other occasions, Solchik sought to persuade Harden to sign, without success.[[ Solchik's insistent pressuring Harden to sign the affirma- tion of support-especially in the context of a promise that Chillag was going to give the employees a pay increase- -was tantamount to subtle interrogation regarding Hard- en's union sentiments. Indeed, Solchik, by this ploy, tried to embarrass Harden into revealing where she stood, vis-a- vis union representation. Moreover, Solchik's promise that the employees would receive a pay raise was designed to undermine the employees' support of the Union. Such exertion of pressure upon an employee and the promise of a pay increase amount, in my opinion to violations of Section 8(a)(1) of the Act.12 b. Threats that the hospital might close In September or October 197013 Henderson, Solchik, and employees, Vivian Franklin and Christine Hairston "were just talking in general about the Union getting started." According to Henderson, Solchik remarked: That Dr. Chillag had been so good to us and he had been good to her and her family and [had] . . . taken care of them when they were sick and if it wasn't for Dr. Chillag we wouldn't have ajob and if the union got in he might close the hospital down. Henderson agreed that Chillag had been good to her too.14 This threat that Chillag might close the hospital if the Union got in, uttered in the presence of two rank-and-file employees, violated Section 8(a)(1) of the Act. 4. The no-solicitation rule The complaint alleges that since November 1970 the Respondent "unlawfully enforc[ed] and maintain[ed ]" the following rule: There is to be no soliciting in working areas during working hours at this hospital. Anyone caught solicit- ing will be ordered to leave the hospital. The answer admits that such a rule existed. The record shows that continuously since June 1970 this rule has been posted on the hospital's bulletin boards and on its doors,is because the hospital has been "plagued with drummers of every kind." On its face, this might perhaps be considered ii The findings regarding the affirmation of support incidents are based on Harden's undenied testimony Although Solchik was called as a witness by the Respondent, she was not asked about the affirmation of support. 12 Kawneer Company, a Division of American Metal Climax, Inc., Appliance Products Division, 164 NLRB 983, 994-945, enfd. in pertinent part 413 F 2d 191 (C.A 6), and Garland Knitting Mills of Beaufort, South Carolina, 170 NLRB 821 See also Sunbeam Plastics Corporation, 144 NLRB 1010, 1011, and Bannon Mills, Inc., 146 NLRB 611, 622, 630. 13 Henderson testified that this event occurred in September. The Respondent's records show that she was on vacation from September 5 to 28, 1970 She testified "when I came back off of vacation they [the employees ] were whispering around about it [the Union ]. No one wanted me to know about it at first." In view of this testimony, there is some doubt Ill as presumptively invalid because it could be interpreted as limiting the right of employees on their off-duty time to solicit in behalf of the Union in working areas, rather than merely prohibiting such activities during the employees' working hours .16 But even accepting this reading for argument's sake, it must be recalled that the Respondent's facility is not a manufacturing plant, it is a hospital. And it is in the nature of hospitals that certain of the working areas (hallways, elevators, stairs, patients' rooms, gift shops, etc.) are necessarily open to the use of patients and to visitors. Further, the hospital services ill individuals who, in their weakened condition, may readily be upset if they overhear antiunion-prounion arguments among em- ployees while they (the patients) are in their rooms or in the halls or elevators. And a hospital need not wait until an untoward incident actually takes place before undertaking reasonable measures to anticipate and forestall such an occurrence. Thus a hospital's right to ban union solicita- tion in working areas where patients and visitors are likely to be present is somewhat akin to that of retail department stores. Taking into consideration the nature of the institution, and the necessity for protecting patients, any presumption of illegality is overcome. Accordingly, as the quoted rule by its terms is limited to working areas, I do not find it to be invalid on its face. The General Counsel urges that the rule has not been uniformly enforced, pointing out numerous instances where employees have sold items (cosmetics, chicken dinners, hot dogs, etc.) to fellow workers. However, in some instances these transactions were shown to have taken place in nonworking areas, such as the hospital's parking lot, and in others the fact that such sales were consummated in working areas was not clearly shown to have been brought to management's attention. In addition, it is undisputed that in a number of instances Chillag has asked insurance agents and even ministers to leave the hospital, and Chillag testified that solicitation was freely permitted in the waiting room, in the employees' dining room, and on the parking lot. The General Counsel, to further demonstrate disparate application of the rule, apparently relies on Chillag's action at 1 p.m. on February 4 in expelling Glandon from the hospital. I do not agree. As pointed out above, the Respondent maintains a rule restricting its employees in remaining on. the hospital premises when off duty. As also mentioned previously, Glandon was not on duty on February 4 and therefore was violating the Respondent's rule by remaining on the premises long after the polls had closed. Chillag's expulsion of Glandon from the hospital on February 4 was simply an enforcement of the rule whether the discussions she described among herself, Franklin, Hairston, and Solchik occurred in September rather than in October. 14 The findings regarding this conversation are based on Henderson's testimony. Solchik admitted that she had conversations with Henderson in October 1970 during which the Union "could have been mentioned " She denied generally that she ever told any employee that if the Union came in Chillag would close down the hospital. I do not credit her denial . Neither side called either Franklin or Hairston as a witness. I do not draw any inference from the parties' failure to do so. 15 Sometimes an underlined sentence was added reading "THIS INCLUDES INSURANCE AGENTS." 16 See Stoddard-Quirk Manufacturing Co, 138 NLRB 615, 617. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which limits the employees remaining on the premises. As the General Counsel does not attack the legality of the Respondent's rule,17 it must be treated as a valid rule and conduct designed to enforce it must likewise be assumed to be proper. The General Counsel emphasizes one other incident. Sometime between the distribution of union cards and the election,18 McCoy and Nevada Walker, an aide, were standing on the stairs between the second and third floors of the hospital. They were talking about a matter unrelated to the Union, representation, or working conditions. Solchik, who was in the third floor corridor, opened the door leading to the stairs and saw them. According to Henderson, who overheard the remark, Solchik said: "no congregation and no talking about the Union [was permitted] at any time while they were on the hospital premises." According to Solchik, she told McCoy: "John- ny, they need you in the kitchen to help with the trays. You can discuss the Union some other time." On direct examination McCoy testified that Solchik stated to him: "Johnnie, Mrs. Cook said ... no one [is ] to talk or have anything to say on the stairways or the landing or hallways." On cross-examination he first described Sol- chik's remark as: "Johnnie, Mrs. Cook said no one is to discuss anything on the stairways or the hallways other than the Union" but later testified that she said : "no one is to have any conversation in the stairways or out [in] the hallways about the Union." Regardless of which version is credited, it is clear from the testimony of all three witnesses who testified on the subject that Solchik put an immediate end to the Walker-McCoy conversation. McCoy, a witness for the General Counsel, testified that he was not on duty, but was due to go on duty in about 15 minutes, and that Walker was on duty at the time. Henderson, also a witness for the General Counsel, testified, and it is found, that when she asked Solchik "what was going on" Solchik answered that "no one was allowed to talk about the union or discuss [it] while we were there on the job." (Emphasis supplied.) As it is undenied that Walker was then on duty,19 and Solchik explained that union solicitation was forbidden while "on the job," it was not improper for Solchik to break up the tete-a-tete. As the Board has frequently pointed nut with court approval, working time is for work.20 On the record before me, I conclude that the General Counsel has failed to prove by a preponderance of the evidence that the Respondent posted a no-solicitation rule unlawful on its face, or maintained such a rule for discriminatory or illegal reasons, or enforced the rule in a disparate manner or in such a way as would unduly or illegally interfere with its employees' rights. This portion of the complaint (par. 5(d)(i)) must therefore be dismissed. 5. Surveillance The Respondent's hospital faces directly on Dingess Street. The main entrance on Dingess Street is entered by a flight of steps approximately 3- or 4-feet high leading to a landing; the front door leads off the landing into the building itself. The landing overlooks the public sidewalk along Dingess Street. At various times in November and December 1970 and in January 1971, usually at change of shift, Harless stationed himself on the public sidewalk in front of the hospital building in plain view of people on the landing. From time to time while standing there he engaged in brief conversations with employees entering or leaving the premises. When Harless stood there, whether he was conversing with an employee or not, representatives of the Respondent's management (specifically Chillag, Cook, and Solchik) stood on the landing looking at Harless. No words were exchanged between Harless on the one hand and the management representatives on the other. According to Harless' credited testimony: each time I was at the hospital [the management representatives would] stand in front of the door and then the moment I leave they'd go back inside. The moment I reappear again, they come back out- side. . . . I came uptown a couple of times to get a cup of coffee and go back down, then someone within thirty seconds or a minute would be back and I'd leave again and they'd go back; and . . . I would come in the morning . . . and I'd be there for a little while and someone would come out. The complaint alleges that in October, November, and December, 1970 the Respondent engaged "in surveillance of its employees' union activities by watching them as they talked to a representative of [the Union] when they approached and entered Respondent's hospital." I am of the opinion that the record amply supports this allegation. It is true that, when a union chooses to carry on its organizing activities in plain view of the employer, the law does not require the employer to look the other way. Here, however, the Respondent's representatives went far be- yond permissible conduct, for they deliberately set out to keep Harless' activities under their observation from the time he arrived until he departed. Such continuous and obvious surveillance made it virtually impossible for Harless "to have had anything more than a mumbling or whispering conversation." The actions of the Respondent's representatives created, in Harless' words, "a tense, fearful atmosphere" which inhibited his "having a meaningful conversation with any of the employees." I conclude that such surveillance by the Respondent was designed to interfere with the right of its employees freely to communi- cate with Harless, in violation of Section 8(a)(1) of the Act. 6. Promises and granting of benefits The complaint alleges that on or about October 1, 1970, the Respondent announced to its employees "that a wage increase was granted" effective that date, promised them "further wage increases in the future," granted "two ten- minute breaks for each shift," and increased "the number 17 Compare McDonnell Douglas Corporation, 194 NLRB No. 75. 19 Neither side produced Walker as a witness. I draw no inference from 18 Henderson placed this episode as having taken place in September the parties' failure to call her. 1970. Solchik testified that it occurred in early 1971, prior to February 4. 20 Peyton Packing Company, Inc, 49 NLRB 828, 843, enfd 142 F.2d McCoy was vague as to the month or year but testified that it was sometime 1009 (C A. 5), cert. denied 323 U.S 730 after union cards had been passed out. GUYAN VALLEY HOSPITAL, INC. of paid holidays" in order "to discourage its employees' sympathies for, activities on behalf of and/or membership" in the Union. The answer admits that on or about that date the Respondent announced "wage increases, etc." and promised "further wage increases in the future," but denies that this was intended "to discourage the employees' interest in the Union." The record shows that prior to October 1, 1970, the employees had not been entitled to 10-minute breaks during their shifts, nor had they all been granted four paid holidays. On or about October 1, 1970, the Respondent sent to each employee a copy of a letter which read, in pertinent part: The minimum wage raises to $1.60 effective February 1, 1971. In view of the above changes in the law we have decided to do the following: 1. Effective October 1, 1970 all hourly employ- ees will be raised .08 per hour plus another .07 on February 1, 1971. This will place our minimum to $1.60 per hour by February 1, 1971, plus maintain the present difference in our wage structure. 2. A ten minute break will be granted in the first half of each shift plus a ten minute break in the second half of each shift. This is in line with all hospitals in this area. 3. All employees will enjoy the same four paid holidays. These changes were put into effect in accordance with the letter. The granting or promising of economic benefits during a union's organization campaign is not in itself violative of the Act. The Board said years ago: What is unlawful under the Act is the employer's granting or announcing such benefits (although previ- ously determined upon bona fide) for the purpose of causing the employees to accept or reject a representa- tive for collective bargammg.2i More recently the Board reasserted that principle as follows: The proper test under Section 8(a)(1) ... requires a finding that the employer's conferral of employee benefits while a representation election was pending was for the purpose of inducing employees to vote against the union.22 Let us apply this principle to the above-quoted letter of October 1, 1970. Chillag testified that he first became aware of the Union's organizing attempt on October 9, 1971, when the Respondent received the Union's tele- graphic demand for recognition, and that 9 days earlier, when the above-quoted letter was sent out, he had no knowledge of the employees' union activities. The General Counsel seeks to contradict this by pointing to Harden's testimony that Chillag interrogated her about the Union as early as mid-September. But Harden's uncertainty about the exact date of this event (see fn. 5, above) leads me to 21 Hudson Hosiery Company, 72 NLRB 1434, 1437 22 Tonkawa Refining Co,175 NLRB 619, enfd 434 F 2d 1318 (C A. 10) 23 The tallies of ballots show approximately 17 eligible voters in Unit A and approximately 33 eligible voters in Unit B, a total of 50 eligible voters in both units. 24 In so finding, I am aware that the complaint alleges this document was distributed on or about February 3, 1970, whereas the record demonstrates 113 conclude that it could well have taken place in October 1970. It is therefore found that the General Counsel has failed to prove by a preponderance of the evidence that the Respondent had knowledge of the Union's campaign prior to October 1, 1970. It follows that the benefits set forth in that letter were not shown to have been illegally motivated. However, because as described above (sec. C 3(a)) Solchik promised Harden a wage increase in order to discourage her support of the Union, that portion of the complaint which deals with promises of benefits (par. 5(d)(ii)) need not be dismissed. 7. Distribution of list of employees expected to vote favorably About February 2, or 3, 1971, Chillag distributed to many employees, without verbal comment, a document signed by him reading: "I expect the following employees to vote NO or NEITHER!" There follows a list of approximately 40 rank-and-file employees in both units.23 Shortly after this document was handed out Frank Hairston, an employee whose name did not appear on the list, asked Chillag why his (Hairston's name was not on the list. Chillag replied that if Hairston's name had been omitted from the list it was because Chillag "wasn't sure of" Hairston. The General Counsel in his brief contends that, by using the word "expect" in this document, Chillag "impliedly threatened the employees with retaliation if they did not vote `No or Neither.' " I cannot agree that such a reading of the document is reasonable. However, I consider the document coercive because it reasonably conveys the idea that the Respondent has obtained information regarding the union sentiments of many employees, and therefore creates the impression that the Respondent has engaged in surveillance of its employees' protected activities. Moreo- ver, as illustrated by the Hairston incident, the document exerted pressure upon employees not listed thereon to reveal their union sentiments and constituted a subtle form of impermissive interrogation. It is concluded that distrib- ution of the document violated Section 8(a)(1) of the Act 24 D. The Separation of Mary Harden 1. Facts Mary Harden began working for the Respondent's predecessor in 1948 as an aide. She became an LPN in 1954 or 1955. When the Respondent took over the hospital, she continued to work there as an LPN on the day shift (7 a.m. to 3 p.m.). She was a member of the Association and wore its emblem on her nurses' cap. At the start of the Union's campaign, when Harless visited the hospital in September or October 1970, he supplied Harden wtih a number of blank union application cards. Harden signed one of the cards, distributed others to that the correct date on which the distribution took place was approximate- ly a year later However, I am convinced and find that the Respondent was in no way misled by this error The Regional Director's Supplemental Decision in Case 9-RC-8753, issued May 28, 1971, correctly sets forth the date of Chillag's alleged distribution of this document as "on or about February 3, 1971 " (Emphasis supplied ) 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her fellow employees, and urged them to support the Union. As related above, a few days after Harless' visit, Chillag summoned Harden and questioned her about the presence of "a union man" in the hospital, and the distribution of union cards; Harden denied any knowledge of these matters. In addition to the above, the record shows that Harden attended at least one union meeting. As related above, Solchik on several occasions probably in October 1970 pressured Harden to sign an affirmation of support for the Respondent. Harden refused. On November 26, 1970, on her way home from work, Harden was injured in an automobile accident. She was hospitalized until sometime in December and was under her physician's care for an extended period thereafter. Harden returned to the hospital monthly to be examined and treated by her physician, who was on the Respondent's staff. She also returned to the hospital on February 4, 1971, to vote in the Board-conducted election that day. During this period, Solchik telephoned to Harden five or six times, said she needed Harden, and asked her to come back to work. Harden replied that she "wasn't able right then," but would "get back as soon as she was able to come back." On March 6, 1971, Cook hired a new LPN to work on the first floor.25 On March 11, 1971, Harden, at Solchik's suggestion, went to the hospital and asked Cook if she could come back to work. Cook inquired whether Harden's physician had released her. Harden answered that she had asked her physician if she could return to work, and he had replied that she could try it. Cook responded that the Respondent had just hired a new LPN for the day shift and that there were no further vacancies at that time for an LPN on that shift. Cook offered Harden a job on either of the other shifts, 3 to 11 p.m. or 11 p.m. to 7 a.m. Harden declined, explaining that she was unable to drive in the dark and would therefore have no transportation for those shifts. Harden requested that Cook call her when there was a vacancy in a job on the day shift, and then left.26 Not having received any further communication from the Respondent, Harden returned to the hospital on July 22, 1971, and talked to Vivian Pugh, an R.N., then superintendent of nurses.27 Harden said that she would like to return to work. Pugh replied that she would see what she could do.28 Between March 11 and August 1, 1971, the Respondent hired an additional LPN (Ruby Belcher) and five new aides.29 By August 1, 1971, all these new aides had completed the necessary examinations and had become LPN's Harden heard nothing more from the Respondent. On August 23, 1971, she sent the following note to Cook: To Whom It May Concern, I am rendering my resignation as of this date (9-23-71) 25 Cook identified the new LPN as Shirley Shull. However, the Respondent's records show that Shull had worked as a LPN as far back as September 1970 26 The findings regarding this conversation are based on the testimony of Harden, corroborated in substantial part by that of Cook 27 The parties stipulated, and it is found, that on that date Pugh was a supervisor within the Act's definition 28 The findings regarding this interview are based entirely on Harden's [sic]. I have enjoyed my relationship with the staff of Guyan Valley Hospital. Thereafter, Harden applied for, and received, a lump sum of money from the Respondent's retirement fund. At a time not specified in the record, Chillag consulted Harden's physician concerning the state of Harden's health. At the time of the instant hearing , Harden still suffered from backache and found it necessary to take pills to relieve her pain every 8 to 12 hours . She experienced some difficulty lifting. 2. Contentions of the parties The complaint alleges that on or about March 8, 1971, the Respondent "discriminatorily refus[ed] to permit an employee who had been on an authorized leave of absence ... to return to her former position in order to discourage the employees' sympathies for, activities on behalf of, and/or membership in" the Union. It is also alleged that the Respondent "discharged" Harden on or about March 8, 1971, and has since then "refused and failed . . . to reinstate her . . . because of her interest in, sympathies for, and/or her activities on behalf of" the Union and "in order to discourage membership" in the Union. In his brief the General Counsel contends that, at the time Harden talked to Cook in March 1971, the Respondent "was aware of the fact that she would not drive at night" and "was attempting to make the condition for returning to work so onerous that Harden would have no choice but to refuse." Therefore, argues the General Counsel, Cook's refusal to reinstate Harden on the day shift constituted "a construc- tive discharge." He maintains that the Respondent "seized on Harden's misfortune in having the accident to try to force her out of the Respondent's employ." In this connection, he points to the fact that, at that time, "it was probable that a new election would be conducted based on the objections to conduct of election filed by the Union." The Respondent in its answer denies that Harden was discharged. It alleges instead that "Harden quit because she could not get a ride to work." At the hearing the Respondent maintained that it had never discharged Harden. It contended that Harden voluntarily quit her employment on August 23, 1971, and that, ever since her accident, she has been physically incapable of performing the duties of an LPN. 3. Conclusions There can be little doubt on the record that the Respondent harbored animus against the Union, or that Harden was an early union supporter. It is so found. Evidence is ample that the Respondent soon learned, or at least suspected, that Harden was a union proponent. Chillag interrogated her about the distribution of cards; testimony Although Pugh was called as a witness for the Respondent, she was not asked about this incident. 29 L. Vankovich, B Lambert, M Hall, J Edwards, and Sue Ann Michaloff (Bartoc). During the week of April 25, 1971, Vankovich, Lambert, Hall, and Michaloff worked on the day shift (7 a in. to 3 p.m.) 5 days and Edwards worked on the day shift 4 days and on the 3 to I I p.m. shift I day Vankovich, Lambert, and Edwards left the Respondent's employ before the instant hearing. GUYAN VALLEY HOSPITAL, INC. and Solchik could easily have inferred Harden's prounion sentiments when Harden failed to respond to Solchik's repeated and insistent requests that Harden sign the affirmation of support. In addition, the small size of the Respondent's operation and the employment by the Respondent during the period of Dr. Erwin Chillag's son in a nonsupervisory capacity give rise to an inference that the Respondent had a fairly accurate idea of the identity of those employees who were active in the Union's behalf.30 I conclude that, from about October 1970 on, the Respon- dent knew or suspected that Harden had engaged in prounion activities.31 We turn now to the replacement of Harden by the hiring of a new LPN on March 6, 1971. The General Counsel does not contend that this action was discriminatonly motivated. Indeed, in view of Solchik's iterated and reiterated requests that Harden return to work, and Harden's indefinite response regarding when she expected to come back, it is not surprising that after this length of time the Respondent saw fit to hire a replacement. Absent an applicable contract provision, an employer is not required to hold a position open indefinitely while an injured employee attempts to regain her health. And here the Respondent replaced Harden at a time when, so far as the Respondent knew, Harden was not yet physically ready to return to her former job. As Harden had been replaced on the day shift, and there was no longer any vacancy on that shift when she applied for work on March 11, 1971, I conclude that Cook's refusal to return Harden to that shift was reasonable and not illegally motivated.32 Moreover, there is no convincing proof that, when Cook offered to put Harden to work on either of the other two shifts, she anticipated that Harden would refuse. So far as I am able to ascertain, Cook made this offer in good faith; the General Counsel has failed to prove the contrary. Therefore, this did not constitute a constructive discharge. Nor did Harden quit on this occasion; her request that Cook call her when the next day-shift vacancy appeared indicates her continuing interest in returning to work, albeit on her own terms. I conclude that the interview of March 11, 1971, did not alter Harden's status (except that it indicated that Harden was now willing to return to work). She remained for the time being an employee on authorized leave of absence. Perhaps Harden's status changed thereafter. The record indicates that a new LPN, Belcher, was hired-probably between April 25 and August 1, 1971-and that five aides became LPN's during this period. It may be that these new LPN's were assigned to the day shift, despite Harden's request to be given the next vacancy on the day shift. If so, this in turn may indicate a decision by the Respondent not 30 Mock Road Super Duper, Inc, 156 NLRB 983, 984, enfd in pertinent part 393 F.2d 432 (C.A. 6), and N L R B v Sutherland Lumber Company, Inc, 452 F 2d 67 (C.A. 7) 3i The fact that Harden's name appears on the list of employees who the Respondent expected to vote favorably does not require a contrary finding A Trial Examiner is not "required to be more nail than is a judge" Shattuck-Denn Mining Corporation v N LR B, 361 F.2d 466, 470 (C A. 9) A self-serving declaration that the Respondent expects a particular employee to vote in its favor is not much more than the expression of a pious hope, especially where, as here, it is contained in campaign propaganda 32 "Management is for management . Neither Board nor Court can 115 to take Harden back, in short, to terminate her. Certainly the "brush-off" that Pugh gave Harden in July points in that direction.33 Assuming, without deciding, that the Respondent made such a determination between March 11 and August 23, 1971 (when it received Harden's written resignation), there is nothing to indicate that this decision was motivated in substantial part by Harden's known or suspected support of the Union. The General Counsel has shown no additional event in this period which might indicate such an illegal motivation. The objections to the conduct of the election were pending on March 11, 1971, and were still pending on August 23, 1971. Prior to March 11, 1971, despite the Respondent's knowledge or suspicion of Harden's prounion sympathies, and despite the penden- cy of the objections, Harden was repeatedly requested to come back to work; even as late as the interview of March 11, 1971, Cook exhibited a willingness to take Harden back. If the Respondent's attitude toward Harden changed thereafter, the General Counsel has not demonstrated why. He has not shown "the essential fact basis from which an inference of unlawful motive can be drawn." The United States Court of Appeals for the Fifth Circuit put the proposition this way: Rotation in personnel is a common thing. The employer does not enter the fray with the burden of explanation. With discharge of employees a normal, lawful legitimate exercise of the prerogative of free management in a free society, the fact of discharge creates no presumption, nor does it furnish the inference that an illegal-not a proper-motive was its cause. An unlawful purpose is not lightly to be inferred. In the choice between lawful and unlawful motives, the record taken as a whole must present a substantial basis of believable evidence pointing toward the unlawful one 34 As the General Counsel has failed, in my opinion, to carry his burden of proof, I conclude that the complaint herein must be dismissed, insofar as it alleges that the Respondent violated the Act in its conduct vis-a-vis Harden's attempts to return to work on March 11, 1971, or thereafter (par. 5(d)(vi) and par. 6). In this posture of the case I deem it unnecessary to decide whether Harden's written resignation of August 23, 1971, was a voluntary act; or whether at the present time she is physically capable of resuming her duties as an LPN. E. The Separation of Jack Glandon 1. Facts Jack Glandon began working for the Respondent in March 1968 as an orderly. He quit about a year later, but second guess it or give it gentle guidance by over-the-shoulder supervi- sion . . It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification : it may not discharge when the real motivating purpose is to do that which Section 8 (a)(3) forbids " N L R B v McGahey, 233 F.2d 406,413 (C.A. 5) 33 "It is not easy to tell a highly regarded employee of many years' service an unpleasant and deeply hurtful truth. It is not incredible that Hendrix [here Pugh ] may have been hoping for a more palatable solution such as the possibility that Russell's [here Harden's] doctor would not certify him" N LR B v. Kline iron & Steele Company, 441 F.2d 540, 541 (C A 4) 34 NLRB v. McGahey, supra, 413 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was rehired in July 1970. At one time or another, he worked on all three shifts 35 During the Union's campaign Glandon attended at least one meeting held by the Union, and signed an authorization card. He handed out about five or six such cards, urged his fellow employees to support the Union, and persuaded three or four of them to sign authorization cards. He was present at the preelection hearing in Case 9-RC-8753 in November 1970, but did not testify therein. As related above, in January 1971 Chillag summoned Glandon, described him as "spokesman for the Union," and threatened to discharge him. And as previously described, Glandon acted as the Union's observer at the Board elections on February 4, 1971, and was again threatened by Chillag with discharge and expelled from the hospital premises that day. On both occasions Chillag, angered, used profanity toward Glandon. On March 24, 1971, Glandon was not on duty at the hospital. That evening Glandon and his wife came to the hospital and had a discussion with Linda Abbott, a patient in room 106. On the next morning, March 25, 1971, Cook directed Pugh to investigate an incident which had occurred on the previous evening in room 106 while Glandon and his wife had been visiting there. Pugh spent about 1-1/2 hours in the investigation, during which she talked to Abbott, other patients in room 106,36 Solchik, Henderson (Glandon's immediate superior), Blanche Vance (an LPN who had been the floor nurse on duty on the evening of March 24 on the first floor), and possibly also either she or Cook spoke to Glandon's wife. From these sources Pugh obtained the following story: Abbott had said that she liked Glandon, and would try to separate him from his wife. She had obtained the telephone number of Glandon's neighbor and had made several calls to Glandon while he was off duty. Glandon had brought coffee to Abbott and had demanded and received a kiss in payment. Glandon and Abbott had "exchanged kisses and embraces." This conduct had originally been reported to Solchik (probably on March 23 or 24) by Norma Workman, a patient in room 106, who had requested to be moved out of Room 106 to the third floor. In addition, Henderson had overheard remarks by Abbott concern- ing Glandon and had repeated them to Solchik. On the evening of March 24 Glandon and his wife had visited Abbott and Glandon's wife had warned Abbott to cease making telephone calls to Glandon and had threatened "to take her to court." Abbott had become excited, had fainted, and had been revived by smelling salts. Vance had notified Abbott's physician of her fainting and had ordered the Glandons to leave the hospital, which they did. Pugh orally reported the results of her investigation to Cook that day. Also on that day, Henderson asked Glandon (who was then on the day shift) "what was going on around there." Glandon replied: "Oh, nothing much. Just a little misunderstanding" and added that some unidentified persons "were telling stories on him." That afternoon between 2 and 3 p.m. Glandon was summoned to Cook's office. Present were Cook, Pugh, Solchik, and Henderson . Pugh related the information she had obtained and asked if it was correct. Glandon denied that he had exchanged kisses or embraces with Abbott or had brought her coffee. He maintained that he and his wife had secured permission from Vance to visit Abbott before they had done so. Both Pugh and Cook termed Glandon's conduct in the matter "very unprofessional" and pointed out that the hospital could ill afford to gain a bad reputation. Glandon, in tears, then signed a paper which read: DATE: 3-25-71 I, JACK GLANDON [signed], TENDER MY RESIG- NATION AT 2:52 P.M. GUYAN VALLEY HOSPI- TAL AS OF THIS DATE 3-25-71 After that, Glandon left the hospital . Immediately thereaft- er, the four persons present prepared a joint statement which they signed. Glandon was paid through March 25, 1971, and his timesheet was marked "Quit 3-25-71.1137 On June 25, 1971, after the issuance of the complaint herein, Glandon returned to the hospital and filed a written application for reemployment . In this document, he gave as his reason for leaving Respondent's employ: "Quit. Wife thought I was involve [sic] with girl." So far as the record shows, there has been no further communication between Glandon and the Respondent. At the time of the instant hearing, the Respondent had not yet hired any new orderly to replace Glandon. 2. Contentions of the parties The complaint alleges, and the answer denies, that the Respondent discharged Glandon on or about March 25, 1971, and thereafter refused to reinstate him, "because of his interest in, sympathies for, and/or his activities on behalf of the [Union] and in order to discourage member- ship in" the Union. In support of this allegation, the General Counsel, in his brief, maintains that the Respon- dent "effectively conducted no investigation at all" in connection with the accusations of misconduct by Glan- don, but simply seized upon these accusations "in an attempt to obscure the true motive of the discharge, and to give it apparent legitimacy." The answer alleges that "Glandon did in fact resign." In its brief, the Respondent maintains that "Pugh investigated thoroughly the matter surrounding Jack Glandon's activi- ties in regard to Linda Abbott," and that "Glandon resigned March 25, 1971." 3. Conclusions At the threshold we are met with the question whether, as the General Counsel maintains, the written resignation signed by Glandon on March 25, 1971, was forced by the Respondent's threat to discharge him and was therefore an involuntary act, or whether, as the Respondent contends, 35 The General Counsel's brief states "Glandon continued to work as an Workman had been discharged from the hospital the previous day I orderly without complaint and without disciplinary action " However, conclude that Pugh confused Workman with some other patient in room Glandon himself testified that at a meeting of employees in November 1970 106. Cook accused him of not doing his work properly 37 Although Glandon signed the timesheet , it appears that these words 36 Although Pugh testified that she talked to Workman that day, may have been written there after Glandon affixed the signature. GUYAN VALLEY HOSPITAL, INC. 117 there was no such threat to discharge Glandon and his signature on the resignation was entirely voluntary. The testimony as to what was said to Glandon immediately before he signed the resignation was conflicting. Pugh and Cook, witnesses for the Respondent, testified that Glandon was not asked to quit. They denied that it had been suggested that he might be discharged. Glandon and Henderson, witnesses for the General Counsel, testified to the contrary. According to their version, Glandon was threatened with discharge but offered an opportunity to escape the stigma of discharge by resigning, he thereupon signed the resignation slip. Solchik, the fifth person present at the time, was a witness for the Respondent. Although she testified about other matters, she was not questioned about the events of March 25, 1971. In view of my ultimate disposition of this matter, I deem it unnecessary to resolve this testimonial conflict between Pugh and Cook on the one hand and Glandon and Henderson on the other. Instead, it will be assumed, without deciding, that the events transpired as described by the General Counsel's witnesses. In that posture of the case, Glandon's resigna- tion will be considered as an involuntary rather than a voluntary act; consequently Glandon's separation will be viewed as a discharge by the Respondent rather than as a voluntary quit. The General Counsel supports his contention of a pretextual discharge partly by asserting that the Respon- dent's investigation of the Glandon-Abbott relationship was inadequate. For example, the General Counsel points out that the Respondent's own records indicate that Glandon was not on duty at anytime while Workman was a patient in the hospital, and therefore a more complete investigation would have revealed the unreliability of Workman's story. However, the Respondent's manage- ment may reasonably have believed that Workman's account was accurate because Glandon might have brought Abbott coffee, etc., at times when he was officially off duty. Or the Respondent's management may have completely discredited Workman, and still might have felt that sufficient information had been obtained entirely from other sources to demonstrate that the matter could not be ignored and that Glandon should be asked for an explanation. Moreover, Glandon's immediate superior, Henderson, had given Glandon an opportunity to relate his version, and he was afforded a second such opportunity in Cook's office later that day. In the light of Abbott's earlier admissions to Pugh and other information obtained in the investigation, the Respondent's management was not required to accept at face value Glandon's protestations of innocence. On the record before me, I am convinced and find, contrary to the General Counsel's contention, that the Respondent's investigation was substantially complete and that the time and effort expended thereon and the care taken to establish the true facts were reasonable and adequate under all the circumstances. 38 Dryden Manufacturing Company, Inc., d/b/a Atlas Truck Body Manufacturing Company V. N.L.R.B., 421 F.2d 267,269 (C.A. 5). The United States Court of Appeals for the Fourth Circuit recently said: "where evidence indicates that the conduct of discharged employees warranted discharge, there must be substantial evidence of an unlawful motivation for the discharge before the Board can find that an improper, rather than the proper, motivation led to the discharge ." N.LR.B. v. Smoky Mountain That investigation revealed information which reason- ably could have led the Respondent's management to the conclusion that drastic disciplinary action against Glandon was called for in order to protect the hospital's good name. In so concluding, I do not pass upon Glandon's guilt or innocence. It would not be appropriate for me to judge the truth or falsity of the data given the investigator by the various informants. It is enough to find, as I do, that the incident endangered the Respondent's reputation unless prompt and effective efforts were made to counteract the effects of possible adverse publicity. This is especially true when we take into account the relatively small size of the community in which the Respondent's hospital is located. It is true that the events here in question must be viewed in the context of the Respondent's clear animus toward the Union and toward Glandon personally because of his known support of the Union, plus the pendency of the Union's objections to the conduct of the election. Yet, in my opinion, these factors "do not rise to the level of substantial evidence in the face of the facts surrounding the discharge." 38 Considering the entire record herein, it is concluded that the General Counsel has failed to establish by a preponderance of the evidence that either the Respondent's discharge of Glandon on March 25, 1971, or its refusal to rehire him as a new employee after his application on June 25, 1971, was motivated in substantial part by its knowledge of his prounion activities. It follows that that part of the complaint which deals with Glandon's separation (par. 7) should be dismissed. Case 9-RC-8753 F. The Objections to the Conduct of the Elections 1. Introduction The Union filed nine objections.39 The Regional Direc- tor overruled Objections 2, 7, and 8. He concluded that Objections 1, 3, 4, 5, 6, and 9 raise material and substantial issues which could best be resolved by a hearing, and directed the Trial Examiner to make findings of fact and recommendations with regard thereto. 2. Objection 1 In this objection the Union alleges that, during the critical period from the filing of the petition on October 12, 1970, to the holding of the election on February 4, 1971, the Respondent engaged in surveillance of its employees' protected activities, in that management officials stationed themselves in position to observe the Union's agent as he stood in front of the hospital and talked to employees. It has already been found (sec. C, 5, above) that in November and December 1970 and January 1971 Chillag, Cook, and Solchik stood on the hospital's front landing and engaged in surveillance of the employees' contacts with Harless, in Stages, Inc., supra, 927. 39 Unfortunately, the complete text of the original objections, as filed by the Union, has not been made available to me. However, the record includes the Regional Director's Supplemental Decision containing the substance of the objections . As no party has objected to the accuracy of the Supplemental Decision's description of the objections, I accept the Regional Director's paraphrasing of the objections as substantially accurate. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8(a)(1) of the Act. Accordingly, I find merit in Objection 1.40 3. Objection 5 In this objection the Union alleges that, during the crucial period, management officials called employees individually into the hospital office and interrogated, threatened, and warned them about engaging in activities in the Union's behalf. It has been found previously (sec. C, 1, b, above) that on January 8, 1971, Chillag summoned Glandon, threatened to close the hospital if the employees chose the Union as their bargaining representative, and-referring to Glandon as "spokesman for the Union" threatened to discharge him. I have held that such conduct violated Section 8(a)(1) of the Act. It follows, and it is found, that Objection 5 is meritorious. 4. Objection 6 In this objection the Union alleges that, during the crucial period, Chillag personally circulated a letter signed by him which listed substantially all of the Respondent's employees and bore the caption: "I Expect the following employees to vote NO or NEITHER!" It has been found above (sec. C, 7) that, about February 2 or 3, 1971, Chillag distributed such a document to employees. It has further been found that this constituted a violation of Section 8(a)(1) of the Act. It necessarily follows from that finding that there is merit in Objection 6. 5. Conclusion Merit has been found in Objections 1, 5, and 6. It is therefore clear, and I find, that the election did not take place in the required "laboratory" atmosphere free of interference, restraint, and coercion. The objectionable conduct was, in my opinion, of sufficient gravity and extent to vitiate the entire election. In this posture of the case, I deem it unnecessary to determine whether there is merit also in Objections 3, 4, and 9. Upon the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Guyan Valley Hospital, Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. National Union of Hospital and Nursing Home Employees, Local 1199, W. Va., RWDSU, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent discriminatorily discharged or failed to reinstate either Mary Harden or Jack Glandon. 6. Certain of the Union's objections to the conduct of the elections held on February 4, 1971, in Case 9-RC-8753, are meritorious and the said elections were invalid. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 4i ORDER Guyan Valley Hospital, Inc., Logan, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening reprisals against its employees should they select or vote for National Union of Hospital and Nursing Home Employees, Local 1199, W. Va., RWDSU, AFL-CIO, or any other labor organization, as their collective-bargaining representative. (b) Interrogating its employees about their union activities, attitudes, membership, or sympathies, in a coercive or threatening manner. (c) Promising benefits to its employees in order to dissuade them from selecting a labor organization as their bargaining representative. (d) Engaging in surveillance of its employees' union activities or creating the impression that it was so engaged. (e) Requesting, suggesting, demanding, or attempting to persuade its employees to sign any pledge or affirmation of loyalty or support in such a manner as to force the employees to reveal their union sympathies, attitude, membership, or sentiments. (f) Circulating or distributing the names of employees expected to vote against representation by a labor organization in any election in which employees are afforded an opportunity to select a bargaining representa- tive. (g) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights protected by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: 40 "Conduct violative of Section 8(a)(l) is, a fortiori, conduct which conclusions, and recommended Order herein shall, as provided in Sec. interferes with the exercise of a free and untrammeled choice in an 102.48 of the Rules and Regulations, be adopted by the Board and become election " Dal-Tex Optical Company, Inc, 137 NLRB 1782, 1786 its findings, conclusions, and Order, and all objections thereto shall be 91 In the event no exceptions are filed as provided by Sec. 102.46 of the deemed waived for alP purposes. Rules and Regulations of the National Labor Relations Board, the findings, GUYAN VALLEY HOSPITAL, INC. (a) Post at his hospital in Logan, West Virginia, copies of the attached notice marked "Appendix."42 Copies of such notice, on forms provided by the Regional Director for Region 9, after being signed by an authorized representa- tive of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.43 IT IS FURTHER RECOMMENDED that the complaint herein be dismissed, insofar as it alleges that the Respondent discharged Mary Harden or Jack Glandon in violation of Section 8(a)(1) or (3) of the Act. IT IS FURTHER RECOMMENDED that the elections held on February 4, 1971, in Case 9-RC-8753, should be set aside, and that new elections should be held at a time to be selected by the said Regional Director. 42 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 43 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the said Regional Director, in writing, within 20 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 threaten reprisals against our employ- ees if they select or vote for National Union of Hospital and Nursing Home Employees, Local 1199, W. Va., RWDSU, AFL-CIO, or any other union, as their bargaining representative. WE WILL NOT question our employees about their 119 union activities, attitudes, membership, or sympathies, in a coercive or threatening way. WE WILL NOT promise benefits to our employees in order to persuade them not to select a union as their bargaining representative. WE WILL NOT spy on the union activities of our employees, or give the impression that we are doing or have done so. WE WILL NOT request our employees to sign any pledge or affirmation of loyalty or support, in such a way to force them to reveal their union sympathies, attitudes, membership, or sentiments. WE WILL NOT distribute the names of employees expected to vote against union representation in any election in which the employees have an opportunity to select a bargaining agent. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any union, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective-bargaining or other mutual aid or protection, or to refrain from such activities, except to the extent that such rights may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. Dated By GUYAN VALLEY HOSPITAL, INC. (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, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.