Yonkers Hamilton Sanitarium, Inc.

668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yonkers Hamilton Sanitarium, Inc. and Fulvia R. Ed- monton.[ Case 2-CA-12881 November 5, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 13, 1974, Administrative Law Judge Nan- cy M. Sherman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, the General Counsel filed a brief in support of the Administrative Law Judge's Decision and an answering brief, and the la- bor organization involved filed exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Yonkers Hamilton Sani- tarium, Inc., Yonkers, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' The name of the Charging Party is spelled as corrected at the hearing DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge- This proceeding, heard at New York, New York, on January 29 through February 1 and February 25 through 27, 1974, pursuant to a charge filed on February 7, 1973, and a com- plaint issued on May 17, 1973, presents the question of whether Respondent violated Section 8(a)(2) and (1) of the National Labor Relations Act, as amended, herein called the Act, because of the activity of four admitted supervi- sors on behalf of Local 1199, Drug and Hospital Union, AFL-CIO, and its division, the Guild of Professional, Technical & Office Employees, herein collectively called the Union. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by Respondent and counsel for the General Counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a New York corporation which operates a proprietary hospital in Yonkers, New York. During the year preceding the issuance of the complaint, a representa- tive period, Respondent had gross revenues exceeding $500,000, and made purchases valued at more than $50,000 which were transported to it from points outside the State of New York. I find that, as Respondent's counsel conced- ed at the hearing, Respondent is engaged in commerce within the meaning of the Act, and that assertion of juris- diction herein will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events In May or June 1972, some of Respondent's employees began an organizing campaign seeking representation by the Union. On December 5, 1972, Union representatives Edward Eppse and Billye Barkley, accompanied by a num- ber of hospital personnel, went to the office of hospital Administrator Vincent R. Zaccardo and gave him a letter asking Respondent to recognize the Union. Respondent has never complied with this demand. On December 11, 1972, the Union filed four representation petitions with the Board seeking units of (1) 140 "Service and Maintenance" personnel; (2) 40 "Registered Nurses"; (3) 30 "Licensed Practical Nurses"; and (4) 40 "Technical Unit" personnel.2 A hearing on these petitions was held before Board Hear- ing Officer Mary W. Taylor on 5 separate days between January 5, 1973, and January 29, 1973. In mid February 1973, a number of hospital personnel visited Zaccardo's office in an effort to expedite the filing of briefs. The briefs were subsequently filed, but the Regional Director has sus- pended further processing of the petitions because of the pendency of this proceeding. B. The Supervisors ' Union Activity and Their Superiors' Knowledge Thereof Terricita Footmon, who the answer admits is a supervi- sor, attended the first union meeting conducted by Eppse and Barkley, about August 1972. At the following meeting, she became a member of the Union's organizing commit- 1 The hearing was initially opened before another Administrative Law Judge who subsequently disqualified himself In accordance with the stipu- lation of Respondent and counsel for the General Counsel, I have refrained from looking at any evidence adduced before him, but not before me 2 The numbers of persons involved are those set forth in the respective petitions The words in quotation marks are the petitions' respective unit descriptions 214 NLRB No. 113 YONKERS HAMILTON SANITARIUM, INC. tee. She induced about 30 employees-most if not all of them not her own subordinates-to sign union authoriza- tion cards, and also gave blank cards to others for distribu- tion by them. Holly Armenia, who the answer admits is a supervisor, signed a Union card on October 12, 1972. During the same week that she signed a card, she gave blank authorization cards to three employees under her, described certain ben- efits which she believed the Union would obtain, and urged these employees to sign. They did so. Between Octo- ber 1972 and February 1973, she also engaged in discus- sions with about 40 employees-some under her, but most not-in which she made favorable remarks about the Union. , Mary Lindsay, who the answer admits is a supervisor, signed a union card on October 25, 1972. In October 1972, she told other nurses, all of whom were probably her sub- ordinates, to get signatures for the Union in the hospital or at their homes.' Around October 25, Barbara Bonner, who is Respondent's director of nursing and is the superior of Footmon, Lindsay, and Armenia, approached Lindsay and told her that Bonner did not want the Union to be dis- cussed in the hospital, but that she did not "care about which leanings that you felt that you could lean toward" and that it did not matter what was discussed outside the hospital.4 Thereafter, Lindsay told her staff not to discuss the Union in the intensive care unit itself. Ellaree Stewart, who the answer admits is a supervisor, signed a union card on October 7, 1972. Around this same time, she received 25 blank cards from employee Alphonse Lee, 19 of which she gave to employees Darrell Smith, an assistant cook. She signed one herself and gave the remain- ing cards to other personnel, including dietitians Edmon- ston and Leus and dietary aide Lidia D'Avanzo. Stewart told Edmonston (in Leus' presence) and D'Avanzo about various benefits allegedly obtainable through unionization. Stewart further told Edmonston that she, Stewart, "was a supervisor as far as the title" but "didn't feel like she was recognized on getting the benefit, wages, or what have you that the assistant chief should have gotten." All of the per- sons to whom Stewart gave cards signed them and returned them to Stewart. In addition, other persons, including di- etary aide Miriam Cortes, put signed cards on Stewart's desk. Stewart gave the cards which she accumulated to em- ployee Darrell Smith. About October 10, and on various occasions thereafter, Stewart engaged in conversations with employees Smith and James Brown, a kitchen helper, during which she asserted that the Union would obtain 3 This finding is based on the affidavit of Ted Scarlet Because Scarlet was too ill to testify, the parties stipulated that his prehearing affidavit could be received as proof of the matter asserted therein , and that if called , he would have testified to the same facts set forth therein Lindsay testified that she never had any activity with regard to the Union On the basis of her admit- ted attendance at union meetings , her admitted attendance at the presenta- tion of the Union's bargaining demand , and her demeanor, I discredit her denial Cf N L R B v. Walton Manufacturing Company. 369 U S 404, 408 (1962) 4 After describing Lindsay's solicitation for the Union in his hospital room, Scarlet's affidavit (supra fn 3) states that several days after his Octo- ber 1972 hospital stay, he "sent them a letter bringing to their attention the above conduct of the nurses, and specifically complaining that union activi- ties sometimes took priority over hospital activities " 669 benefits for the employees. In September 1972, she made favorable remarks about the Union to the dietitians then on duty (including Mangahas) and employee Helen Green- wald, the secretary to chief dietitian Daniels, stating that if the Union came in they might be able to obtain longer sick leave, higher wages, and better conditions. On one occa- sion, Stewart gave employee D'Avanzo permission to leave work 2 hours early to attend a union meeting ; however, D'Avanzo was not paid for this time. On this or another occasion Stewart gave about seven employees permission to leave the hospital to attend a union meeting; the record fails to show whether they were paid for this time. Shortly before Eppse and Barkley visited Zaccardo's office on De- cember 5, 1972, to demand recognition, Stewart or employ- ee Darrell Smith asked cafeteria employee Grace Smith to be on a committee. When Grace Smith asked Stewart what a committee member had to do, Stewart replied that a member would "have to go up to Mr. Zaccardo's office." Grace Smith said that she was not going, and did not go. Nobody else overheard this conversation. A few minutes before the union representatives went to Zaccardo's office with the bargaining demand, employee Cortes, who had already finished her work for the day, asked Stewart whether she (Cortes) should accompany them, explaining that she was "scared" of losing her job.' Stewart told her that there was nothing to be scared about, and told her to go to Zaccardo's office to keep Eppse from looking a fool .6 Stewart also granted the requests of dietary aide D'Avanzo and one or two other dietary department personnel for per- mission to use their lunch period for this union visit to Zaccardo's office. Cortes and D'Avanzo, at least, were among those who accompanied Eppse and Barkley. Also accompanying them were Lindsay and two of her subordi- nates-Ducasny (see infra, fn. 12) and Baldeschwiler-all three of whom were on their lunch hour. In addition, two or three dietary department employees who had to work later than Cortes accompanied Eppse and Barkley; the re- cord fails to show whether these latter employees were paid for the time in question. At the hearing before me, Respondent's counsel and counsel for the General Counsel stipulated that it was understood by the employees general- ly that Stewart was second in command to Daniels in the dietary department and had the right to discipline and ef- fectively to recommend discipline, retention, or reward. Around September 1972, employee Greenwald told chief dietitian Daniels, who was Stewart's immediate superior, that she, Greenwald, had overheard Stewart tell the dieti- tians about the Union's "advantages" and about union meetings. Thereafter, Greenwald reported to Daniels what- ever she overheard about Stewart and the Union. In early October 1972, Greenwald told Daniels that employee D'A- vanzo had come to Greenwald with a card and asked whether she should sign, and that Greenwald had told her, "Lydia, I don't know what you are talking about, I don't 5 Cortes based this apprehension on a statement by chief dietitian Geor- gia Daniels, a few days after Cortes signed a union card, that Daniels did not want her to get involved with any union and if she did, she might have "trouble " 6 My findings in the last two sentences are based on Curies' credited testimony On the basis of the witnesses' demeanor , I do not believe Stewart's version of this incident 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD know anything about a card. If Miss Stewart wants you to sign something, see her. I don't know anything about it." 7 After attending a union meeting in early October or early November, Stewart told Daniels, "I know that you know that I went to the meeting. Is there any way that I can get fired? " Daniels said, "I can't tell you to partake in the union; I just can't tell you anything." 8 About November or December 1972, Daniels told Greenwald to report to her anything pertaining to the Union, and to "Get all you can, information. If you can get anything from Mrs. Stewart or from any of the employees, tell me." Greenwald obeyed these instructions. C. Evidence Relating to Respondent's Defense 1. Introduction As discussed more fully below, Respondent seeks dis- missal of the complaint on the ground, inter alia, that the Union knew or should have known that some of the hospi- tal personnel who were actively organizing for the Union were supervisors, that the Union was under an obligation to advise the soliciting supervisors of their supervisory sta- tus, and that the Union's failure to do so rendered the soliciting supervisors agents of the union alone and pre- cludes a finding that Respondent was responsible for their conduct. The following recitation is designed to summarize and clarify the evidence relating to this contention. 2. The personnel whose status was in dispute As previously noted, the representation proceeding was initiated by four Union representation petitions seeking four separate units of Respondent's personnel. In that pro- ceeding, Respondent contended, inter alia, that subject to the statutory restrictions on including professional employ- ees like registered nurses in a unit of nonprofessional em- ployees, the only appropriate unit was a single, overall unit including clerical employees, a group not included in any of the units petitioned for. 7 My findings as to the contents of this conversation are based on Greenwald's undisputed and credited testimony My finding as to its ap- proximate date is based on D'Avanzo's testimony, corroborated by the card itself, that she signed a union card about October 7 1 believe Greenwald was mistaken in attaching a November 1972 date to this incident 8 This finding is based on the testimony of Stewart , who at the time of the hearing was no longer in Respondent 's employ and was subpoenaed by Respondent as a witness Daniels, who was still a supervisor in Respondent's employ at the time of the hearing, did not testify, nor was her absence explained Stewart's testimony that Daniels also said, " but you can't go around forcing people to join You can't tell personnel to join, or you can't go around talking about the union" is discredited because of her demeanor, because these additional remarks appear gratuitous under the circumstances, and because Stewart's version of the conversation to Barkley was, " Mrs Daniels had spoken to her that she heard she had attended one of the union meetings She told Mrs Daniels at that time that she had And she said that Mrs Daniels told her that she could not tell her whether she should become involved in the union or not or vote yes or no she would have to judge that for herself why didn't Mrs Daniels tell me then that I was a supervisor and not supposed to be involved or be at one of those meetings and she did not " While Barkley's testimony to this effect is hearsay as to the contents of the Daniels-Stewart conversation, such testi- mony was not objected to American Rubber Products Corporation v NLRB,2l4F2d47,52(CA 7) Respondent's work force consists of about 320 individu- als.9 At the outset of the representation case hearing, Union counsel stated, inter alia, that the Union's proposed technical unit included employees with 7 different job ti- tles, and that its proposed service and maintenance unit consisted of employees with 1 I different job titles. During that hearing, Union counsel changed his position as to the unit placement of the physical therapists, in light of the record developed at the hearing; learned for the first time about the existence of the fob titles "assistant chief labora- tory technician" and, inferentially, "darkroom assistant"; and stated that the Union had very limited knowledge of the facts regarding clerical employees, whom it did not seek to represent but Respondent wanted to include in a single, overall unit. At the representation case hearing and in their briefs filed in that proceeding the parties litigated, on a person-by-person basis, whether to include six indi- viduals classified as "junior technician," and one classified as a "medical secretary" in the technicians' unit; with the Respondent seeking to exclude the "junior technicians" and include the "medical secretary," and the Union taking the opposite view. In addition, Respondent contended that senior key punch operators, programmers, and senior com- puter operators were technical employees and the Union that they were not. At various times during the January 1973 representation case hearing, the parties stipulated that individuals with 19 different job titles were supervisors within the meaning of the Act. These included the intensive care unit supervisor ("ICU supervisor"), namely, Lmdsay.10 As of the close of that hearing, Respondent was contending, and the Union disputing, that about 35 more individuals, with 6 job titles, were also supervisors within the meaning of the Act. The representation case transcript shows that the individuals then in dispute were the chief EKG technician (Footmon), the assistant chief laboratory technician, and the following registered nurses: the 2 assistant supervisors in the operat- ing room, the assistant supervisor in the recovery room, 4 to 9 assistant head nurses (who worked in the intensive care unit, in the operating room , and in the nursing units), and the head nurses-24 (including Armenia-in the nurs- ing unit); at least 1 in the intensive care unit ; and I in the recovery room, who works alone, under the direction of the operating room supervisor. Respondent's position in this respect meant that it was contending that 33 or more of its registered nurses were supervisors and 36 or less (including about 15 part-time nurses) were not. Further, Respondent contended that the assistant chief dietitian (Stewart) was a supervisor, while the Union either contended otherwise or stated that the issue should be determined by the Board. In 9 This number includes persons whom neither party wanted to include in the unit (e g , doctors and administrative personnel ) and clerical personnel, whom the Union did not seek to represent but Respondent wanted included in the single, overall unit it deemed appropriate 10 Conceded to be supervisors were the director of nursing, the assistant director of nursing, the house supervisors, the operating room supervisor, the ICU supervisor, the chief dietitian, the central supply registered nurse, the in-service coordinator , the medical-surgical nurse, the chief X-ray tech- nician, the chief physical therapist , the head housekeeper, the chief engi- neer, the manager of the data processing , the chief laboratory technician, supervisor of the switchboard , purchasing department agent , medical re- cords librarian, and admitting office supervisor YONKERS HAMILTON SANITARIUM, INC. 671 addition, the Union contended that the chef was a supervi- sor and Respondent that he was not. 3. The union meetings and the meetings with Zaccardo in his office The first organizational meeting, held about June 1972, was held in an employee's apartment, and was attended by about 10 hospital personnel plus Barkley. There is no con- tention or evidence that any supervisors attended this meeting. Sometime prior to September 1972, Union Ad- ministrative Organizer Elliott Godoff instructed Eppse to meet with employee Alphonse Lee and help him organize the hospital. Between about July 1972 and December 5, 1972, the date of the Union's bargaining demand, Barkley and Eppse conducted about four meetings. The first of these meetings was held in August or Sep- tember 1972. Among the 40 to 50 persons present 11 were Footmon, Lindsay, and Tammy Ducasny. Ducasny's name tag described her as a registered nurse, and she so de- scribed herself to Barkley; but I am inclined to think that Ducasny was a supervisor.12 Lindsay wore a name tag de- signating her as an "ICU Supervisor," 13 but the record fails to show whether her tag was visible to others present at the meetmg.14 During this meeting, one of those present (either a nurses aide or someone in housekeeping) asked who could be in the Union. Eppse replied, everybody who was not a part of management. When someone asked what he meant by this, he said "anybody in administration, su- pervisors and et cetera, could not be part of the Union." When asked why, he said that "supervisors cannot be part 111 believe Barkley was mistaken in testifying, without corroboration, that director of nursing services , Bonner. was also present 12 As previously noted, Respondent contended in the representation pro- ceeding that "assistant head nurses" in the ICU unit were supervisors ICU Supervisor Lindsay, who was in overall charge of the intensive care unit and worked a 5-day week on the day shift, credibly testified that during the relevant period Ducasny was the "number three" nurse in that unit on the day shift, and served as Lindsay's assistant if "assistant nurse" Crowell was on vacation. Director of Nursing Services Bonner testified at the representa- tion case hearing that the ICU unit had a head nurse and an assistant head nurse on every shift, and that during the shifts and days when the ICU supervisor was not on duty, the unit was taken over by the head nurse and in her absence, by the assistant head nurse Because the day shift is the busiest time in the hospital as a whole, because the existence of extra ICU day-shift activities is indicated by the use of an assistant head nurse on the day shift when the ICU supervisor is on duty (as well as on shifts where she is not), and because of the around-the-clock care and constant attention which patients in such a unit must receive in order to survive , I infer that when in charge of the unit Ducasny responsibly directed the personnel therein However, I note hospital Administrator Zaccardo's representation case testimony that the iCU unit had three supervisors including Lindsay, with the other two functioning as supervisors on other than the day shift, Bonner's representation case denial of Zaccardo's unfair labor practice case testimony that some evaluations are made by the ICL "assistant supervi- sor", and Respondent's unexplained failure to call Ducasny as a witness although she was in its employ at the time of the hearing before me 13 This finding is based on Barkley's testimony that the registered nurses were wearing their hosptial uniforms, on Lindsay's and Armenia's testimony that a standard part of a registered nurse's uniform is a name tag which sets forth herjob title, and on Lindsay's testimony that her name tag so reads in view of the number of individuals present at that meeting and others who were wearing name tags, and Barkley's testimony that the weather was hot during the first meeting, I do not credit her testimony that she could not recall that any were wearing name tags at any of the meetings 14 Barkley credibly testified that some of those present wore sweaters of the union, because they are part of management and they have the right to hire and fire and they would have to have a union all of their own" (see infra fn. 63). Someone asked whether registered nurses could be part of the Union, and Barkley replied yes. Someone said that the inhalation therapist at the meeting was a supervisor, and he laughingly said that he could not be because he was the only inhalation therapist employed by the hospital. Some- one asked whether all registered nurses were supervisors. Ducasny replied no, and Barkley added, " ... there are head nurses. And some places call them charge nurses but it is one and the same." Barkley explained the difference between head or charge nurses on the one hand and super- visors on the other by saying, "Head nurse or charge nurse is . . . in charge of other RN's, LPN's and aides on one particular floor or unit. A supervisor has overall supervi- sion of more than one area, one unit or one floor. And they are part of policy making." Eppse and Barkley asked each person present for his job classification. Thereafter, those present split up into two groups, with Eppse talking to the service and maintenance personnel (whom he normally organized) and Barkley the nurses, di- etitians, and technicians (all of whom she normally orga- nized). The nurses asked whom Barkley would regard as a supervisor; she said that licensed practical nurses and head or charge nurses were not. The nurses named Bonner and others as supervisors Barkley asked each member of her group whether he was a supervisor. Some of the nurses brought up the status of Lindsay, who said that she was not receiving the pay to which a supervisor was entitled and did not know whether she was a supervisor.15 Barkley did not ask whether Lindsay could hire, fire, direct others' work, assign them jobs to do, reward them, promote them, or recommend these things. Prompted by the discussion concerning Lindsay, Foot- mon said she was chief EKG technician,16 and described some of her duties (infra, section II, C, 6, a, (1) ). Barkley asked how many persons worked in the EKG department, and Footmon or another person from that department said three. When Barkley asked who was in charge of that de- partment, they replied, Director of Nursing Bonner. Bark- ley said that she could not say that Footmon was a supervi- sor, and that she did not have a title as supervisor.t7 After 15 This finding is based on Barkley's testimony, which I credit to this extent In view of the "ICU Supervisor" on Lindsay's name tag, I do not credit Barkley's testimony that Lindsay said nobody had ever told her she was a supervisor On the other hand, I do not believe Lindsay's testimony that she never spoke to Barkley and knew as early as October 1972 that she was a supervisor From Lindsay's testimony and her demeanor, I conclude that she was trying to conceal her union activity 16 Footmon's name tag did not give her title My finding that she de- scribed herself as "chief" EKG technician is based on her testimony On the basis of the witnesses' demeanor, I do not believe Barkley's denial that Footmon used such a term 17 My finding in this sentence is based on Footmen's testimony On the basis of the witnesses' demeanor, I do not credit Barkley's denial However, in view of Footmon's testimony that it was the discussion regarding Lindsay that prompted her own inquiry, the evidence that the Lindsay discussion occurred after the meeting split up between Eppse and Barkley , and the fact that this meeting long preceded the Union 's card-based recognition demand and its subsequent representation petitions , I conclude that Footmon was mistaken in her testimony that Eppse also participated in this discussion and that the "labor board" was referred to 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this first meeting, the EKG technicians' duties were never discussed again. At the beginning of the meeting, Eppse and Barkley had put union literature and blank union authorization cards on a table in the meeting room. Footmon and others helped themselves to this material. Subsequently, Eppse gave Footmon (at her request) "a couple" more blank union cards, and Barkley gave her union literature which she distributed to others.18 At another union meeting about 2 weeks later, Barkley and Eppse stated that "no one in supervisory level or ad- ministrations could be part [of the Union] and we had no asking of them to solicit any cards or be part of our meet- ings." This meeting was attended by Ducasny and Foot- mon, who became members of the organizing committee formed on this occasion. The record fails to show the num- ber of persons who attended. About the second or third week in October,'9 Eppse and Barkley conducted another union meeting, which was at- tended by 20 to 30 hospital iersonnel. This was the first meeting attended by Stewart 2° and by Armenia. As Arme- nia entered the room, she was introduced to Eppse and Barkley as a head nurse.21 Stewart advised Barkley that she herself was a "dietitian," 22 but said nothing else at the meeting. Footmon, Lindsay, and Ducasny were also pre- sent23 Footmon spoke at this meeting, but the record fails is The findings in this sentence are based on Footman's testimony On the basis of the witnesses ' demeanor, I discredit Eppse's denials 19 My finding as to the date is based on the testimony of Stewart and Cortes I believe that Barkley was mistaken in dating this meeting as July or An2gust Stewart had signed a union card, and distributed about five cards to others with requests that they sign, prior to this meeting and prior to any contact with Eppse and Barkley Thereafter, and the day prior to the first meeting which she attended, she made her first contact with Eppse when he met her near the hospital cafeteria He urged her to attend the Union meet- ing the next day and she told him that she had had some cards signed I credit her testimony that she did not give him her Job title and conclude that Eppse was mistaken in testifying that she told him that she was a "dieti- tian " I reject Respondent's contention that Eppse's action in addressing her as "Mrs Stewart" "would be indicative of the fact that she was a person in authority" Stewart had provided herself with a name tag including the "Mrs " but without her title , her uniform was indistinguishable from that worn by dietitians (see infra, section If, C, 6, b), and there is no evidence that Eppse omitted courtesy titles in addressing nonsupervisory personnel whom he had never met before Stewart, Cortes, and Footmon all credibly testified that Stewart had sub- sequent conversations with Eppse, whose content is not shown by the record except for Footmon's testimony that Stewart told him she had passed out cards I do not credit Eppse's testimony that the cafeteria conversation was his sole conversation with Stewart and that she never displayed to him any interest in the Union Nor do I credit his testimony, contrary to hers, that she and not he initiated the cafeteria conversation 21 Armenia's coat concealed her name tag, which bore her title My find- ing as to her introduction is based upon her credited testimony I do not believe Eppse's testimony that he never met her, but in view of the number of employees at whom the organizational effort was directed and the fact that professional employees were within Barkley's particular responsibility, I am inclined to think that his denial in this respect was mistaken rather than consciously untruthful 22 This finding is based on Barkley's testimony On the basis of the wit- nesses' demeanor, I do not credit Stewart's testimony that she never told Barkley her job title 23 Registered Nurse O'Leary attended this and the next meeting, signed an authorization card , and accompanied the Union representatives when they visited Zaccardo to request recognition, but did not obtain authoriza- tion cards from others At the hearing before me, Respondent's counsel took the position that she was a head nurse and, therefore , a supervisor However, Stewart was the only witness specifically asked whether O'Leary to show what she said. A paper was passed around for the signature of those present. Eppse and Barkley conducted another meeting on or a few days before December 4, which was attended by 20 to 55 hospital personnel. Among those present were Stewart (who, however, did not participate therein),24 Ducasny, and Footmon. Eppse called out the names of various depart- ments andjob titles, and asked those so described to stand. When he named "dietitians," Stewart rose. Eppse told those present, as a group, to try to sign up everyone they could. Those present discussed an incident where a head nurse had allegedly "harassed" an employee, and Eppse and Barkley said that to prevent further employee harass- ment, the employees should get together and talk with Zac- cardo.25 It was the sense of the meeting that Eppse and Barkley, accompanied by as many employees as possible, present a bargaining demand to Zaccardo in his office. On December 5, Eppse and Barkley went to Zaccardo's office and gave him a written bargaining demand which stated, inter alias A majority of the employees . . . working in the following bargaining units . . . have signed [Union] application cards.. . . We are prepared to meet with you at the earliest possible time to prove majority status and to negotiate a [contract]. Among the 20 to 35 hospital personnel who accompanied Eppse and Barkley were Ducasny, who was wearing a name tag bearing the title "RN," and Lindsay, who was wearing a name tag bearing the title "RN, Supervisor, ICU." 26 When recognition was requested, Barkley spoke in a clear and decisive manner. Lindsay credibly testified that during this interview "there was a strain" between Zaccardo and the Union representatives. While the record shows that the Union thereafter wanted a consent election, no witness who attended the December 5 conference testi- fied that this matter was mentioned on that occasion. In late December, Footmon encountered Eppse in the hospital, told him that she had signed a union card and was a "senior technician," and asked whether she was eligible to join the Union. There is no evidence that he told her she was ineligible 27 Also prior to the beginning of the repre- was a head nurse, and Stewart replied no Because of Stewart's demeanor when so testifying, and because Respondent failed to tender the strong evidence necessarily in its possession (e g , personnel records or the testimo- ny of O'Leary's superiors) regarding her duties and job title, I find that O'Leary was not a head nurse notwithstanding the contrary statements in Lindsay's testimony and in Footmon's prehearmg statement to Respondent's attorney 2 Stewart testified that at either this meeting or some other subsequent meeting before January 19, 1973, she made an offer to the Union to testify at the representation proceeding I discredit this testimony for the reasons summarized infra, In 31 25 My finding in this sentence is based on Stewart's testimony On the basis of the witnesses' demeanor, I discredit Barkley's denial of this discus- sion 26 Neither Armenia nor any other witness corroborated Lindsay' s testi- mony that Armenia was also present I believe that Lindsay's testimony was mistaken in this respect 27 My finding as to the title she gave is based upon Footmon's testimony On the basis of the witnesses' demeanor, and because there is no evidence that Footmon or anyone else ever referred to her as an "EKG aide" at any YONKERS HAMILTON SANITARIUM, INC 673 sentation case hearings, Footmon told both Eppse and Barkley that she, Footmon, was collecting all the cards she could for the Union, and periodically told them the num- ber.28 Apparently on the basis of the discussions prompted by the December 11 representation petitions or the hearing thereon, about January 17 Barkley telephoned Stewart that there seemed to be a question about whether she was a supervisor. Stewart replied that she did not know whether she was a supervisor or not. On January 19, Barkley drove from New York City to Yonkers to pick up Stewart and drive her to the Board hearing room in New York City. While they were in the car, Stewart commented that if she was a supervisor, she did not understand why Chief Dieti- tian Daniels had not told her this earlier .29 Stewart told Barkley that while Daniels was on vacation, Stewart had hired a particular person whom Daniels had told her to hire, but that she had never hired anybody on her own.30 Barkley said that "it had been always understood that a person who did not have the power to hire or fire was not a supervisor." Barkley did not ask her whether she did any- thing else which might make her a supervisor . Stewart had never raised any question at a union meeting about wheth- er she was a supervisor who was thereby precluded from being involved in the Union.31 Neither Eppse nor Barkley ever told Stewart not to engage in union activities because she was a supervisor. Stewart testified that when she arrived at the hearing room, at a time when the hearing was not in session, the other time, I do not credit Eppse's testimony that she so described herself, or that he told her she was eligible if she were an aide and would have to talk to Barkley if she were a technician By admitting that this conversation took place, Eppse contradicted his own previous testimony that he had never met Footmon 28 The findings in this sentence are based on Footmon 's testimony On the basis of the witnesses ' demeanor, I discredit Eppse's and Barkley's denials 29 The findings in this paragraph up to this point are based on Barkley's testimony, which I credit over Stewart's version on the basis of the witness- es' demeanor and the following considerations Stewart vacillated in her testimony before me about whether she told Daniels, before Stewart testi- fied at the representation case hearing, whether she was going to do so Moreover, I regard as improbable her testimony that she did not meet Bark- ley, Eppse, and Footmon by prearrangement, but merely happened to see them outside the parking lot when Stewart was preparing to enter the hospi- tal to tell Daniels that Stewart had been subpoenaed to testify at the repre- sentation proceeding that day and would not be reporting to work Stewart testified that she accepted the offer of a lift in Barkley's car without convey- ing to Daniels the message that Stewart had assertedly travelled to the hos- pital for the sole purpose of conveying, and that she had made no plans as to how to get to the Board's New York City hearing room from the hospital in Yonkers Because of Footmon's credible uncertainty about whether she and/or Barkley accompanied Stewart on this occasion, her testimony is not helpful in resolving the conflict between Stewart and Barkley Likewise unhelpful is the testimony of Eppse, a generally unreliable witness which conflicts with both Stewart's and Barkley's testimony 30 Apparently referring to this same incident, Daniels testified at the rep- resentation case hearing that she told Stewart to choose whatever applicant she thought best for the job, and did not know that a particular employee was coming down to be interviewed 3i This finding is based on Barkley's credited testimony I discredit Stewart's testimony that she conveyed such a message to Eppse or Barkley at a meeting in January 1973, just before Stewart's January 19 testimony at the representation case, in view of Stewart's further testimony that the last union meeting she attended took place prior to the December 5, 1972. bar- gaining demand and the subsequent filing of the representation petitions following events occurred in the presence of Barkley, Eppse, and Daniels: Q. [By William Auerbach, Respondent's attorney, who also represented it during the representation pro- ceedings] Do you recall my asking you if I could see you out in in the hall? A. Yes. Q. And do you recall Mr. Jones, the [Union's] Hearing Attorney, saying something? A. Yes. MR PORTNOY: Object. Leading. JUDGE SHERMAN: Sustained. Q. Will you tell us what happened then, when I said I wanted to speak to you? A. You started a fight, and [Board Hearing Officer] Taylor said, I don't know what remark she made, but it was making me sick. Q. Do you recall Mr. Jones, the union attorney, saying that I could not speak to you? A. I think he said that.32 At some time between January 5 and January 7 (see infra, fn. 33), Zaccardo called Lindsay in his office and, in Bonner's presence, told Lindsay that she was management and could not be in the Union, that "the last meeting I went to [the Union] said that you were one of the names that they didn't want in the union because you were man- agement . . . 33 you see, the union has sold you down the river," and that he would prefer that she not discuss this with anyone. Lindsay complied with these instructions. Af- ter the representation case hearings in January 1973, Eppse or Barkley told Footmon that if she was a supervisor she could not be handing out cards, and that it was up to the Board to determine whether she was part of management or not. Sometime in mid-February 1973, a group of Re- spondent's personnel met with Eppse and Barkley, the latter of whom came late. More than 20 hospital personnel were present, including Armenia and Ducasny.34 Eppse or Barkley asserted that the representation proceeding was being prolonged because Respondent's attorney had re- quested an extension of time for filing briefs and because management was trying to get as many people as possible designated as supervisors so they could not vote. Eppse named several categories whose supervisory status was in dispute, but did not mention either head nurses or assistant supervisor of the ICU. Eppse or Barkley asked the employ- ees to let Zaccardo know that they wanted Zaccardo to give a definite date as to when Respondent's lawyer would 32 In addition, Respondent's counsel stated on the representation case record, "I would like the record to show, Mrs Taylor , you refuse to allow me to interview" Stewart There is no other record evidence regarding this incident In my view, the record fails to support the assertion in Respondent's brief that the Union "physically" sought to prevent Respondent's counsel from speaking to Stewart 33 This reference leads me to infer that Lindsay was mistaken in attaching a February 1973 date to her conversation with Zaccardo. The Union con- ceded her supervisory status dunng the January 5 representation case hear- in, and Zaccardo testified therein on January 8 Armenia testified that Stewart may have been there I accept Stewart's testimony, in effect, that she did not attend 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD file his brief.35 This was Armenia' s final contact with Eppse and Barkley. A few days later, about 20 "volunteers" who had attended this meeting, including Armenia and Ducas- ny, visited Zaccardo's office to make a "very angry" com- plaint about what they regarded as unnecessary delays in the filing of representation case briefs by Respondent's at- torneys. Zaccardo replied that Respondent's attorney was entitled to a certain length of time to file a brief, that he was tied up in another case, and that the Union's lawyer had also "filed for a delay"-a piece of information the Union had not given to the employees. Armenia asked li- censed practical nurse Savage, one of Armenia's subordi- nates, if Savage wanted to accompany Armenia during this visit. Savage replied yes, and she went This visit occurred during Armenia's and Savage's breaktime, but some of the hospital personnel who participated therein did so during their own working hours. 4. The supervisors' alleged discovery that they should not engage in union activity As previously found, in January 1973 Respondent told Lindsay that she was management and could not be in the Union. About March 1973, a Board field representative told Armenia that she was a supervisor and was not supposed to participate in union activities . This was the first occasion on which anyone had told her this. Footmon testified, without specifying a date, that after Armenia "was called down to the office . . she became very inactive, petrified as a matter of fact." Barkley testified that during a conver- sation at a union meeting, Ducasny told her that Armenia was a supervisor or had just been promoted to a superviso- ry job, and that she would no longer be attending any meetings or be part of the organizing.36 There is no other record evidence that Armenia was ever informed, by a rep- resentative of Respondent or by anyone else, that she was a supervisor who should not engage in union activities. In mid-August 1973, Zaccardo called Footmon to his office and told her that he had "accepted [her] as supervi- sor from the time he started in administration , and that if [she] didn't like it that he would replace" her. Laying this incident to one side, there is no evidence that any represen- tative of Respondent ever told Footmon not to engage in union activity. There is no evidence that any representative of Respon- dent ever told Stewart not to engage in union activity be- cause she was a supervisor. 35 My findings as to the discussion at this meeting are based on Armenia's testimony. I do not credit Eppse's evasive testimony about this meeting, except to the extent it is corroborated by Armenia 36 Particularly in view of Armenia's demeanor in credibly testifying that she was "shocked" when learning about March 1973 that she was a supervi- sor who was not supposed to engage in union activities , I conclude that the Barkley-Ducasny conversation occurred after the Board agent's March 1973 visit to Armenia, and that Barkley was mistaken in testifying that her con- versation with Ducasny occurred a week or two before the visit to Zaccardo's office I note that Armenia participated in the second such visit I further conclude that Barkley was mistaken in testifying that Bonner par- ticipated in the discussion described in the text 5. Respondent's failure to disavow its supervisors' prounion activity or to advise its employees that it disfavored the Union Respondent's counsel conceded at the outset of the hear- ing that although opposing the Union, top management never advised Respondent's rank-and-file employees that its supervisors' prounion activities were unauthorized by it; and counsel stated at the conclusion of the hearing (about a year after the termination of such activities) that it re- mained unwilling to convey such a message to them. Testi- mony by present and former hospital personnel establishes that Respondent has never advised employees generally that it opposes the Union. 6. The duties of the supervisors who engaged in the prounion activity attacked in the complaint a. Supervisors in the nursing division Supervisors Footmon, Armenia, and Lindsay all worked on the day shift in the nursing division, which was headed by Director of Nursing Services Bonner. Immediately un- der Bonner was an assistant director of nursing services. Bonner, whose supervisory status was conceded at the rep- resentation case hearing, testified at that hearing that she has the sole power to fire and suspend day-shift employees in that division . The evidence received at the January 1973 representation case hearing and at the February 1974 hear- ing before me shows as follows: (1) Footmon Footmon was one of three technicians in the EKG de- partment. During the first union meeting in July or August 1972, she accurately advised Barkley that Footmon took cardiograms at bedside and emergencies , ordered some equipment, kept it clean, filed accounting slips and sent them to the accounting office, mounted cardiograms, and put them on the patient's chart. She also accurately advised Barkley that she was being paid less than any other em- ployee in the department.' Footmon testified at the representation case hearing that the "first technician there" would do the emergency work; and that otherwise, EKG Technician Portia performed the intensive care work and the remaining work was divided in half, "And if there is an overlap of filing I will take the more cardiograms and have the girl that I think is more capable, quicker, do the filing." During the representation case hearing, she also testified that the EKG technicians prepared their work schedule as a team , and that Bonner had authority to change it. In addition, she testified in sub- stance during the representation case hearing that she and the other technicians sometimes recommended the pur- 37 Because of a September 1972 wage increase , at the time of the January 1973 representation case hearing she was receiving 36 cents an hour more than the technicians then in Respondent's employ However, at that hearing Footmon testified without contradiction that Bonner told her in September 1972 that an equal wage increase was being given another technician, Hale, who already made more than Footmon Zaccardo 's uncorroborated testi- mony at that hearing implies that Hale's increase was less than Footmon's Hale resigned prior to the representation case hearing YONKERS HAMILTON SANITARIUM, INC. 675 chase of new equipment when the old equipment was bro- ken, but it was the doctors who "have to make arrange- ments with Mrs. Bonner to make new machines. We can only tell her when our machinery is not in working condi- tion." 31 Zaccardo testified at the representation case hear- ing that Footmon was responsible for seeing to it that the ordered EKG's were actually performed and that equip- ment was repaired, and that she maintained the logs and access registers for that unit, submitted charges for outpa- tient work, had "overall jurisdiction with respect to the ad- ministrative aspects of that unit," and "generally [oversaw] the operation of the EKG area." Bonner testified at the representation case hearing that the two EKG technicians reported to Footmon, and that Footmon reported to Bon- ner. Footmon there testified, in effect, that all three report- ed directly to Bonner. In January 1970, Footmon prepared an evaluation of the work of another technician. Bonner asked Footmon to do this because Bonner expected to be absent from the hospi- tal for several weeks. Bonner later approved the evaluation and filled in the evaluation's recommendation for "Merit Increment on Anniversary Date." 39 The evaluation's "Re- cord of Interview with the Employee" was not filled out Footmon, and appears to be in Bonner's handwritingby . Zaccardo testified that Footmon made this evaluation "at a time when she was chief [EKG technician] in the sense that she functioned as the one senior person in that area." This evaluation was the only one prepared by Footmon prior to September 1973,41 and she did not mention it to the Union representatives at the first meeting she attended, where she explained her duties; but she did tell Eppse and Barkley about it before she testified at the representation case hearing, and they replied that it would be up to the Labor Board to decide whether she was part of manage- ment. After signing this evaluation, she added the title "EKG Chief." This was the first occasion on which she had ever used this title in writing, but she and others had previ- 36 At the representation case hearing, Zaccardo testified that Footmon makes up the time schedules, maintains the files for that unit, and confers with the purchasing agent regarding equipment For the reasons indicated infra, I do not regard resolution of this testimonial conflict as material to this proceeding In any event, I am inclined to accept Footmon's testimony at the representation case hearing in preference to Zaccardo's, in view of her superior opportunity to observe the facts and their demeanor at the unfair labor practice hearing before me 39 When day-shift head nurses made such evaluations which were part of their regular duties, such blanks were filled in by them 40 My findings in the last four sentences are based on Footmon's testimo- ny at the unfair labor practice hearing and her consistent testimony in the representation case hearing, together with the evaluation document itself Respondent's brief in the representation case proceeding attacked Footmon's veracity on the ground that Bonner "could not have reviewed this evaluation if she were on vacation " However Bonner, could, of course, have requested its preparation Just before going on vacation and approved it after returning; indeed, Footmon dated the evaluation January 10, 1970, and the employee interview is dated February 4, 1970 Moreover, Bonner did not testify about this matter at the representation case hearing and, although still Respondent's director of nursing at the time of the unfair labor practice hearing, did not testify before me 4i During the representation proceeding, Respondent's counsel contended that because of departmental turnover and the normal interval between evaluations, no other occasion for evaluation had ever arisen However, Footmon testimonially disputed this, and Respondent produced no records to support its position Indeed, Zaccardo testified that "evaluations" were made in August 1972 ously used the title orally from time to time.42 After the representation case hearing, she was given a job descrip- tion and management told her to use that title in ev- erything that she signed, including orders for supplies. She complied with these instructions. I infer that the job de- scription in question was a copy of a document (admittedly not the original) which Respondent's counsel offered into evidence during the representation case hearing. This doc- ument purports to be a job description (revised November 9, 1972) of "Chief E.K.G. Technician," which lists, among 12 "functions," the following: "8. Submits weekly time schedules for all members in the Department of Nursing Office . . . 10. Evaluates all Technicians under her supervi- sion." After this document was received in evidence during the representation case hearing, Footmon testified that she had never seen this job description "Except when it was being Xeroxed last week by Mrs. Bonner's secretary." Zac- cardo then testified that to "the best of [his] knowledge" the job description was prepared on the date it bears, that job descriptions are "constantly" being brought up to date to conform with State hospital regulations, and that "by [his] direction" Bonner was told to prepare the proper job description and to show it to Footmon. Bonner was not asked about this matter. (2) Armenia Armenia had the job title of "head nurse," and was as- signed to a nursing unit on the day shift. All persons hav- ing this job title were registered nurses. Persons with the job title "head nurse" were assigned to the intensive care unit (see, supra, fn. 12), the recovery room, and (like Arme- nia) to the nursing units. All these operations were includ- ed in the 120-person nursing services division headed by Bonner, who was normally present in the hospital during the day shift only. Unless otherwise stated, the head nurses discussed hereafter under this heading are those assigned to the nursing units. The hospital had a total of seven nursing units. During the day shift, each of these units had one head nurse who reported to Bonner, to the assistant director of nursing, and to the medical-surgical supervisor, a registered nurse whose supervisory status was conceded at the representa- tion case hearing. 3 The day-shift personnel assigned to each nursing unit also consisted of one to three registered nurses, one to three licensed practical nurses, one to three nurse's aides, and sometimes an orderly. In addition, the two units on a given floor shared two maids and two por- ters, all of whom reported to the "head nurse"-to which, does not appear44 Some of the nursing units had an assts- 42 Footmon's representation hearing explanations for this oral usage are irreconcilable with those which she tendered at the unfair labor practice hearing I ascribe such inconsistencies to a desire to augment her prestige among her fellow workers while retaining a right to union representation Zaccardo testified, in effect, that she received the "chief' title in August 1972 in connection with receiving a wage increase exceeding wage stabiliza- tion guidelines 43 The Union initially took the position that she was not a supervisor, but during the representation case hearing conceded otherwise 44 However, administratively these porters and maids reported to the housekeeper, who was directly under Zaccardo Housekeeping employees Continued 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tant head nurse who was a registered nurse on the day shift; but during the period relevant here, Armenia's unit did not 45 During each of the other two shifts , each nursing unit had either one "charge nurse " (who was a licensed practical nurse) 46 or one head nurse . Respondent did not contend during the representation hearing that charge nurses were supervisors , but its brief in that proceeding states, " ... all head nurses, including night head nurses regardless of whether they are R.N.s or L.P.N.s are super- visors." The additional evening and night-shift personnel assigned to each unit consisted solely of licensed practical nurses and nurse's aides, in each case fewer than those assigned during the day. During these shifts, the units did not have assistant head nurses but (during these shifts only) there was a "house supervisor" on each shift who was a registered nurse reporting directly to Bonner, and whose supervisory status was conceded at the representation pro- ceeding.47 The night-shift nursing units had no maids or porters and (inferentially) no orderlies . Head nurses and (inferentially) charge nurses did not select the persons who worked under their direction. A head nurse had authority to assign personnel in her nursing unit to various patients , while a charge nurse did not. A head nurse on the day shift evaluated employees under her direction at the end of their probationary period and in connection with the annual merit increment pro- gram ; her evaluation included a recommendation about whether to keep a probationer, and whether the rated em- ployee should receive a wage increase and was eligible for promotion . In Bonner's absence, that head nurse also inter- viewed the employee about the evaluation . Such evalua- tions were reviewed by Bonner. A charge nurse did not prepare evaluations, nor is there any evidence that she par- ticipated in making them. A head nurse on the evening or night shift participated in making evaluations with the house supervisor , who signed them. Bonner conducted monthly meetings attended by, inter alia, head nurses and assistant head nurses-"everybody from assistant head nurse up," where they discussed hospital problems and in- troduced new equipment. A head nurse on the day shift scheduled days off for full-time personnel, although Bonner could change this schedule and sometimes did. Days off for full-time person- nel on the other shifts were scheduled by the house supervi- sor, inferentially subject to like intervention by Bonner. Bonner fixed the work schedules of part-time employees. Employees on the day shift who wanted to exchange days off discussed the matter with the head nurse, who dis- cussed it with Bonner. The record fails to show how similar requests from employees on other shifts were handled. Subject to Bonner's approval, the head nurse on the day shift could arrange for calling in part-time nurses on days other than their normal working days, and could take a regularly assigned to a particular nursing unit received their annual incre- ment evaluation from the housekeeper and that unit's head nurse , acting jointly 45 The other day-shift registered nurses then in her unit were Thais and were unable to speak good English 46 Although Zaccardo testified at the representation case hearing that Re- spondent does not use the title "charge nurse," Bonner's representation case testimony repeatedly used this terminology 47 Respondent had two full-time and four part-time house supervisors nurse from another nursing unit . Neither head nurses on the other shifts nor charge nurses possessed this authority, which on these shifts resided in the house supervisor alone. Bonner and the head nurse jointly scheduled vacations. Bonner and the house supervisor had the sole authority to give employees permission to leave early. Bonner usually complied with a head nurse 's request that someone under her direction be transferred elsewhere, and at least sometimes Bonner put the transferee on a pro- bationary period ; but Bonner investigated the matter first. If a rank-and-file employee complained to Bonner that he could not get along with someone else in the unit , Bonner ordinarily transferred him elsewhere after checking with the head nurse . I infer that a charge nurse's request for an employee's transfer would be treated like a head nurse's request. A head nurse could not administer discipline, but she could recommend the discipline of personnel under her direction to Bonner , who conducted her own investigation and then "work[ed] it out" with the head nurse . Bonner's testimony indicates that her action was usually limited to transferring the allegedly offending individual elsewhere, perhaps on probation. Charge nurses had the right to bring improper employee functioning to the attention of the head nurse or the director of nursing . Night-shift head nurses and (inferentially) charge nurses and day-shift head nurses had the authority to admonish employees under their di- rection. The head nurses made rounds with doctors and made appointments for patients for ancillary services . Perhaps because rounds are likely made and such ancillary services likely performed almost entirely during the day, the record fails to show whether the charge nurses performed the head nurses' functions in these respects . Second and third shift head nurses and (inferentially) charge nurses who were dis- satisfied with employees under their direction reported the matter to the house supervisor , who reported it to Bonner. Both head nurses and charge nurses were responsible for seeing to it that the doctor's orders were carried out; for patient charting ; for the routine functioning of the unit as it related to the ordering of supplies and linens ; and for seeing to it that patients were fed. Head nurses , who were paid on an hourly basis , received 15 to 17 percent more than "general duty" nurses , but less than the assistant su- pervisor in the operating room, whom the Union claimed to be an employee and Respondent claimed to be a super- visor. (3) Lindsay Lindsay's job title was ICU supervisor. She was the over- all supervisor of the intensive care unit , and reported di- rectly to Director of Nursing Bonner. She worked during the day shift, 5 days a week. On each shift, the intensive care unit had a head nurse (a registered nurse) and an assistant head nurse (also a registered nurse). In addition, eight general-duty registered nurses and nine licensed prac- tical nurses worked in that unit. When Lindsay was off duty, the head nurse was in charge of the unit ; and when both of them were off duty, the assistant head nurse was in charge. Bonner testified at the representation case hearing YONKERS HAMILTON SANITARIUM, INC. that Lindsay prepared all the evaluations for the personnel in that unit. b. Stewart The dietary department, which consisted of about 34 persons and prepared and served food for both the patients and the hospital cafeteria, was headed by Chief Dietitian Daniels, whose supervisory status was conceded in the rep- resentation proceeding. Among the personnel in this de- partment were three therapeutic dietitians and Assistant Chief Dietitian Stewart, all of whom (inferentially, as to Stewart) had college degrees in food nutrition. Stewart spent about half her time performing the work of a thera- peutic dietitian. Stewart made out the dietitians' work schedule, subject to Daniels' approval; Daniels scheduled the remaining personnel in the department. Stewart also gave out all instructions to the dietitians as to what they were to do-for example, who was to go to which floor and who was to be responsible for charting and card indexing. During Daniels' absences, which covered a substantial pro- portion of the time,48 Stewart was in full charge of the dietary department. During this period, she assigned work to department personnel, ordered inventory, and attended department-head and infectious-committee meetings. Stewart effectively recommended the hire of employees in the dietary department and had the right effectively to recommend their discharge. She had the right to give or- ders to anyone else in the department except Daniels. She had and exercised the right to give employees time off and to let them leave early without consulting Daniels. Stewart selected employees for overtime. She adjusted grievances. She could and did send employees home as a disciplinary measure, shared with Daniels decisions about how to disci- pline employees and the conduct of the disciplinary inter- views, and in Daniels' absence could take such disciplinary measures as Stewart deemed immediately necessary in view of the seriousness of the offense. In addition, she dis- cussed with Daniels (who made the written evaluations) the annual increment rights of employees with whom Stew- art had had problems. Aside from the chef, whose status was in dispute, the representation case record contains no evidence that the dietary department had any supervisors but Daniels and Stewart. Respondent's counsel in effect conceded at the representation case hearing the employee status of dieti- tians. Nor did Respondent contend in its brief in that case that any additional supervisors existed in that department. However, Zaccardo testified at the unfair labor practice hearing that dietitians Edmonston (the charging party herein), Mangahas, and a third whose name he could not recall were also supervisors, and that they recommended employees for discharge or evaluated other employees. Di- etary Aide D'Avanzo testified before me that the dietitian was her supervisor 49 48 Daniels was out of the hospital on business from 15 to 20 percent of her time, and spent half of her time ordering food and supplies In addition, Stewart (but not Daniels) worked on Saturdays and prior to 9 30 a in on other days 49 As previously found, some of Stewart's allegedly unlawful conduct was directed to dietitians, including Edmonston and Mangahas However, be- cause Stewart and other supervisors directed like conduct to other personnel D. Analysis and Conclusions 677 The credited evidence shows that on various occasions between August 1972 and February 1973, four individuals who occupied supervisory positions each engaged in one or more of the following activities: urging and soliciting rank- and-file employees to sign union cards and to solicit signed cards from others, urging and encouraging rank-and-file employees to support the Union, and urging and encourag- ing employees to accompany union representatives when they asked management for recognition.50 Such evidence establishes, at least prima facie, that Respondent thereby contributed support to the Union, in violation of Section 8(a)(2) and (1) of the Act.51 Respondent cannot avoid re- sponsibility by contending that these supervisors' superiors did not authorize or direct such activities and that the su- pervisors were motivated by a desire to organize on their own behalf. "The `interference' ... flows directly from the supervisors' company positions and their opportunities to exercise certain exclusive prerogatives of management ... When this power is placed in the hands of a particular employee, the employer has an obligation to insure that the power will not be used contrary to law and he may not claim that he did not know of the employee's intraunion activities." Local 636 of the United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada, AFL-CIO v. N.L R B. [Detroit Association of Plumbing Contractors], 287 F.2d 354, 361 (C.A.D.C., 1961). Moreover, the evidence shows that these four supervisors' superiors were aware of their pro- union activity but took little action to counteract it. Thus, the record specifically shows that beginning in September 1972, Chief Dietitian Daniels was regularly advised of the prounion activities of Assistant Chief Dietitian Stewart, her immediate subordinate, yet, even when Stewart asked Daniels in terms whether Stewart could be fired for attend- ing a union meeting, Daniels remained noncommittal. The record further specifically shows that in October 1972 Di- rector of Nursing Bonner (the immediate superior of the remaining three supervisors named in the complaint) learned that Lindsay and others were discussing the Union; yet Bonner, although telling Lindsay not to discuss the Union in the hospital, specifically added that Lindsay's views about the Union and her discussions outside the hos- pital were matters of indifference to Bonner. Daniels' and Bonner's knowledge of their supervisory subordinates' pro- union activity was chargeable to Respondent whether or not they told their own superior, Administrator Zaccardo, about it.52 In any event, Respondent's failure to call Dan- iels and Bonner as witnesses, and its failure to ask Zaccar- do whether he knew about supervisors' prounion activities, lead me to infer that Zaccardo in fact acquired such knowl- edge by at least September 1972, when Daniels found out about it. Golden State Bottling Company, Inc., d/b/a Pepsi- whose employee status is not in dispute, I need not and do not determine whether dietitians are supervisors so The record fails to support the complaint allegations that Stewart urged various employees to attend union meetings and permitted employees to take time off with pay to attend a union meeting 5i Thurston Motor Lines, Inc, 159 NLRB 1265, 1277-78 (1966), Meyers Bros of Missouri, inc, 151 NLRB 889, 890 (1965) 52 See United Aircraft Co v N L R B, 440 F 2d 85, 92 (C A 2, 1971) 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cola Bottling Company of Sacramento v. N. L.R.B., 414 U.S. 168 (1973); GAF Corporation v. N.L.R.B., 488 F.2d 306 (C.A. 2, 1973).53 Such awareness destroys the principal fac- tual predicate for Respondent's contention that under the circumstances I should disregard Respondent 's failure to disavow such supervisory conduct to the employees, and the belatedness of such limited steps as Respondent did take to tell the supervisors to stop such conduct. The evi- dence that some employees and Union Executive Vice President Olson knew, suspected, or anticipated that Respondent's top management opposed the Union 54 is hardly the equivalent of evidence that Respondent made its antiunion views clear to all employees, particularly be- cause its failure to make real efforts to stop the supervisors' prounion activity left the employees exposed to apprehen- sions of pressure from their immediate supervisors 55 and might even have persuaded employees that they had erred in their prior belief about management's real views.56 During the oral argument at the conclusion of the hear- ing, Respondent's counsel replied in the negative to my question, ". . . assuming that the company did in fact know that the supervisors were doing what they were doing, do you regard it as a defense in their failure to take action that they believed that the supervisors had then in effect been put up to this by the union?" Nevertheless, Respondent's beef contends, in substance, that no unfair labor practice finding and order can properly issue be- cause, with respect to these supervisors' conduct, the Union is allegedly more culpable than Respondent and Respondent's charge against the Union grounded on such conduct was dismissed by General Counsel Nash. There is no direct evidence in the record that the Union ever made particular efforts to secure the organizing services of these four supervisors (or of supervisors as a class) as compared with like organizing services of other personnel, or that the Union acquiesced in these four supervisors ' organizing ac- 53 As counsel for the General Counsel points out in his brief, N L R B v International Longshoremen 's & Warehousemen 's Union, Local 10 eta! [Pacif- ic Maritime Association], 283 F 2d 558, 566-567 (C A 9, 1960), is distin- guishable in that the employer there was unaware of the conduct in ques- tion 54 Respondent seems to be contending that employees must have reached this conclusion because Respondent litigated the Union's unit contentions Particularly in view of this contention , I find that the Union's efforts to obtain recognition on the basis of a card check or a consent election do not evince an effort to conceal the supervisors ' prounion activity Cf Interna- tional Van Lines, 177 NLRB 353, 354, remanded 448 F 2d 905, 910 (C A 9, 1971), court of appeals reversed in part, 409 U.S 48, 52 (1972), fn 4, enfd in part and remanded in part, 473 F 2d 1036 (C A 9, 1973) part Cf NLRB v Heck's, Inc, 386 F 2d 317, 322-323 (C A 4, 1967) 56 At the hearing , Respondent's counsel asserted that its inaction prior to the Union's bargaining demand was due to ignorance of the supervisory activity , and that its subsequent inaction was motivated by tactical consid- erations which included fear of a strike following the Union's unsuccessful bargaining demand However, no member of management testified that Respondent's inaction was so motivated (see GAF, supra ) Respondent's counsel also said in his opening statement that "each" of these supervisors was "warned" and told that her prounion activity was "improper, illegal", but (so far as the record shows) only Lindsay received instructions from Respondent approximating this description (Zaccardo's conversation with Footmon merely implied such a message , at most, and in any event took place 6 months after Footmon had abandoned her union activity) Further, except for the discredited testimony summarized , supra, fn 8, there is no evidence to support the assertion in the opening statement of Respondent's counsel that these supervisors acted "against [their superiors] instructions " tivity after learning that they possessed responsibilities which rendered them supervisors within the meaning of Section 2(11) of the Act.57 However, Respondent contends that the evidence calls for the inference that the Union "knew about, used and intended to use the unlawful means, i.e., the supervisors, to organize the hospital and then pressure the Employer into a fast recognition, by cardcount or a quicky consent election." I do not think that this factual inference is warranted. The Union was trying to organize units totalling more than 200 employees with at least 20 different job titles. Respondent contended at the representation case hearing that about 35 of these individuals, with 23 different job titles, were supervisors; the Union made a similar contention with respect to a 24th job title (chef). Respondent's representation case brief ad- vanced the new and additional contention that persons with the job title "licensed practical nurse" who performed the duties of "charge nurse" were also supervisors; and Respondent added before me the further contention that dietitians were supervisors as well. So far as the record shows, no more than five supervisors (six, according to Re- spondent, see, supra, fn. 23) ever attended a union meeting, and only four solicited cards; and all of Stewart's card solicitation activity occurred before she met the Union rep- resentatives and attended her first union meeting . 5B More- over, the representation case record shows that the approx- imately 26 persons who share the title "head nurse" (in- cluding Armenia) do not all have the same responsibilities which are arguably relevant to supervisory status. Indeed, although day-shift "head nurse" Armenia is now conceded to be a supervisor, the "head nurse" in the recovery room works alone and is clearly nonsupervisory; Armenia's du- ties bear more resemblance than those of certain other day- shift "head nurses" to those of the night-shift "head nurs- es"; and the duties of the night-shift "head nurses" are less like those of day-shift "head nurses" than those of "charge nurses,"-all of whom share with admitted nonsupervisors the job title "licensed practical nurse," and whom Respon- dent did not claim to be supervisors until after the close of the representation case hearing. Moreover, the information about the remaining three supervisors' duties which they gave in response to union inquiries did not show them to be supervisors . Stewart stated that she was a "dietitian"-a typically supervisory job title, and until the hearing before me, not claimed to be supervisory at Respondent's hospi- tal. Footmon truthfully told the Union that she was being paid less than any of the other EKG technicians and that the only job evaluation she had ever made had been drawn up almost 3 years earlier. Lindsay told the Union that her pay was not that of a supervisor. Moreover, Jesse Olson, who is the Union's executive vice president and is the di- rector of the guild division where Barkley worked during this period, credibly testified without contradiction that he did not tell Barkley or Eppse to use supervisors for the 57 During the January 1973 representation case hearings , the Union told employees that Lindsay could not attend the hearings on the Union's behalf because she was a supervisor After the representation case hearing, the Union advised Footmon that if she were a supervisor she could not pass out cards, she thereupon abandoned this activity 58 However, two supervisors (Footmon and Ducasny) were on the Union's organizing committee The record fails to show its size , and its functions are inferable only from its name YONKERS HAMILTON SANITARIUM, INC purpose of organizing employees, having them sign cards, or making a show of strength to prevent a delay in obtain- ing recognition.59 Accordingly, I credit Barkley's testimony that she did not tell Footmon to ask other employees to sign cards; that Barkley met Armenia only once, did not tell her to solicit cards, or know whether she did so, or know what her role was in the organizing drive; that Bark- ley met Stewart only once and did not know that she was helping in the organizational drive; and that Barkley did not tell Lindsay or Stewart to talk to employees to support the Union, or tell Stewart to ask other employees to sign cards for the Union, or tell Lindsay or Stewart to tell or permit employees to attend the Union's presentation of its bargaining demand, or tell Stewart to tell employees to at- tend union meetings, and did not know whether Lindsay and Stewart in fact did these things. For the same reasons, I credit Eppse's testimony that he did not enlist any super- visors in the organizing campaign, that he made no deliber- ate effort to enlist supervisors, and that it was during the representation case hearings that he first became aware of the dispute about Stewart's status. The fact that I have discredited Barkley and Eppse in other respects 60 does not overcome the corroboration afforded to their credited testi- mony by the large number of employees in the claimed units, the large number of alleged supervisors, the small number of supervisors who engaged in union activity, the large number of job titles involved, the variations and gra- dations of duties within the same job title'61 the borderline status of Footmon and Armenia, the limited and possibly inaccurate information which the four supervisors gave to the Union regarding their status, the shifts in Respondent's position about which persons were supervisors, the evi- dence that until the representation case hearing the Union was also unaware of information bearing on its unit claim but not on the status of these 4 supervisors, the possible inconsistencies in both the representation case and the un- fair labor practice case testimony regarding the supervi- sors' status, the conflicts in the testimony regarding their duties, the inherent difficulties in distinguishing between authority based on professional skill and authority based on supervisory power,62 the fact that Barkley (who was pri- marily responsible for organizing these supervisors' subor- dinates) was responsible for administering an area of about 59 In making this credibility finding, which is based partly on Olson's demeanor, I have taken into account the hostility which he displayed to- ward Respondent's counsel during the hearing before me However, I note that Olson supervises 25 staff members with Barkley s responsibilities, and that Barkley alone is responsible for 4000 members in eight or nine institu- tions As noted, Respondent has a total workforce of 320 It is reasonable to suppose that Olson devoted little of his time to the details of a campaign involving such a small part of his responsibilities 60 See, supra, fns 13, 17, 20, 25, 27, 28 Also reflecting on Eppse's veracity is his inherently unlikely testimony that he was interested only in the num- bers of people who signed union cards, and not in who they were, that he was not interested in whether Stewart was a union member or favored the Union, and that he does not even "respond" to persons interested in signing up for the Union but not within his own service-and-maintenance responsi- bility 61 Cf N L R B v Swift & Company, d/b/a New Entland Processing Unit, 292 F 2d 561, 563 (C A 1, 1961) 62 See , e g, Diversified Health Services, Inc dib/a Convalescent Center of Honolulu, 180 NLRB 461 (1969), Sherewood Enterprises, Inc, d/b/a Doctors' Hospital, 175 NLRB 354 (1969) 679 4000 members working in eight or nine institutions, the Union's repeated oral statements at union meetings that supervisors could not be part of the Union, and Eppse's similar statements to Lee, Eppse's principal employee assis- tant during the campaign. I am not moved to conclude otherwise by Barkley's and Eppse's action in erroneously defining supervisory status to those attending the first union meeting. Barkley had previ- ously been confronted with the supervisory status problem during campaigns under the New York State Labor Rela- tions Act (Consolidated Laws of New York, Art. 20, Secs. 700-717), which affords supervisors the same rights and protection as all other employees 63 While the New York State Labor Relations Board places supervisors in units other than those of rank-and-file employees over whom they exercise supervisory authority, 64 it seems highly un- likely that in making such determinations the NYSLRB applies a test precisely the same as that specified in Section 2(11) of the NLRA. Moreover, Eppse credibly testified that head nurses are included in certain units represented by the Union within the area serviced by Barkley. Nor, do I infer bad faith from Barkley's failure to consult the Union's experienced labor counsel about the supervisory issue. Barkley was a layman who had been a practical nurse before joining the Union's staff, and laymen not in- frequently fail to recognize the existence of a problem about which counsel should be consulted. Finally, Respondent contends that the Union committed an unfair labor practice by "using" these supervisors (even without knowing them to occupy that status) to organize the employees, and that, therefore, the complaint against Respondent should be dismissed because the General Counsel dismissed charges against the Union (filed by Re- spondent and by the Charging Party herein) based on such conduct, which is substantially the conduct herein attacked as constituting a statutory violation by Respondent. Of course, one party's commission of unfair labor practices does not ordinarily excuse another party's participation in the same or other conduct likewise forbidden by the Act.65 This remains true where, as here, charges were filed against both parties, but dismissed as to one, at least where the General Counsel's decision to proceed against one alone is not shown to constitute an abuse of discretion. Radio Offi- cers' Union of the Commercial Telegraphers Union, AFL v. N.L.R.B., 347 U.S. 17, 52-54 (1954). Respondent's brief concedes that assuming (as I have found) that the Union honestly did not know that these four individuals were su- pervisors, whether their activity constituted a union unfair labor practice presents "a case of first impression so that cases in point cannot be found." Moreover, Respondent has the power, even acting alone, to remove most if not all 63 Mount Sinai Hospital, 32 NYSLRB 110, 112, Long Island College Hospi- tal, 33 NYSLRB 161, 168 64 E g, Mount Sinai Hospital, supra, 32 NYSLRB at 112 65 See, e g, Plumbers Union of Nassau County, Local 457, United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Bomat Plumbing & Heating), 131 NLRB 1243, 1245, enfd 299 F 2d 497, 501 (C A 2 , 1962), Sheet Metal Workers International Association, Local Union No 361 (Langston & Co, Inc), 195 NLRB 355, 357, enfd 477 F 2d 675, 677 (C A 5, 1973), United Mine Workers of America (Chapel Coal Company), 160 NLRB 913. 915 (1966) 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the improper impact of such supervisory conduct on the employees' minds, and to make the recurrence of such con- duct unlikely, if not impossible . Respondent, unlike the Union, is in a position to prevent supervisors from engag- ing in such conduct by threatening and effectuating dis- charge or other discipline. Further, Respondent, unlike the Union, necessarily knows which of its personnel have su- pervisory powers. Also, the supervisory conduct here at is- sue is unlawful largely because it leads employees to think that their response to such solicitation will affect how well their employer will thereafter treat them on the job. Such employee views can be corrected by, but only by, assur- ances from the employer. Under these circumstances, I conclude that the General Counsel 's determination to pro- ceed against the Respondent alone did not constitute an abuse of discretion, and does not constitute a valid ground for dismissing the complaint herein 66 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has contributed support to the Union, in violation of Section 8(a)(2) and (1) of the Act, by urging and soliciting employees to sign authorization cards for the Union and to solicit signed cards from others, urging and encouraging them to support the union, and urging and encouraging employees to accompany union representa- tives when they asked management for recognition. 4. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not, in violation of Section 8(a)(2) and (1) of the Act, urged employees to attend union meet- ings or permitted employees to take time off with pay to attend a union meeting. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom, and from like or related conduct . I shall also recommend that Respondent post appropriate notices. Because a substantial number of Respondent's employees speak Spanish as a native language, I shall recommend the posting of notices in Spanish as well. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended Order: ORDER 17 Respondent Yonkers Hamilton Sanitarium, Inc., its offi- cers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Contributing support to Local 1199, Drug and Hos- pital Union, AFL-CIO and its Division the Guild of Pro- fessional, Technical & Office Employees, by urging and soliciting employees to sign authorization cards for that union and to solicit signed cards from others, urging and encouraging them to support that Union, and urging and encouraging employees to accompany representatives of that Union when they ask management for recognition. (b) In any like or related manner contributing support to that Union. 2. Take the following action which is necessary to effec- tuate the policies of the Act: (a) Post at its Yonkers, New York, establishment copies, in English and Spanish, of the attached notice marked "Appendix." 68 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed to the extent that it alleges unfair labor practices not found herein. 66 For reasons which are unclear to me, Respondent requested me to take judicial notice of Case 2-CA-I 1695, Yonkers Hamilton Sanitarium , Inc, and Betty Jean Jackson and Local 1199, Drug and Hospital Employees Union Respondent's counsel asserted at the representation case hearing that at the time of the events which gave rise to 2-CA- 11695, Respondent's ownership and management were entirely different from what they are now The Trial Examiner's Decision in 2-CA-I 1695, which the Board adopted pro forma in the absence of exceptions , shows that Respondent violated the Act by re- cognizing the Union in November 1968 on the strength of a card check, and by subsequently entering into negotiations with it, after the Union's prior card majority had been destroyed by certain petitions signed by employees who wished to withdraw their authorizations The Trial Examiner rejected as unsupported by the evidence the Union's contention that the petitions were employer-inspired and , therefore, ineffective , but Union Representa- tive Olson's testimony before me indicated that he nevertheless believed that Respondent was really the source of these petitions and wanted to forestall any such development during the instant organizing campaign Although Respondent's counsel stated at the oral argument herein that Respondent had recognized the Union in 1968 "as a result of pressures by the Union and more there was violence," the Trial Examiner's Decision fails to disclose the nature of such union pressure, if any 67 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order which follow herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions and Order, and all objections thereto shall be deemed waived for all purposes 68 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " YONKERS HAMILTON SANITARIUM , INC. 681 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government by urging and soliciting employees to sign authoriza- tion cards for that Union and to solicit signed cards from others, urging and encouraging them to support that Union, and urging and encouraging them to ac- company representatives of that Union when they ask management for recognition. WE WILL NOT in any like or related manner contri- bute support to that Union. WE WILL NOT contribute support to Local 1199, Drug and Hospital Union, AFL-CIO and its division, the Guild of Professional, Technical & Office Employees, YONKERS HAMILTON SANITARIUM, INC.