San Clemente General Hospital

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Clemente General Hospital and United Nurses Issue Association of California Case 21-CA-13756 June 4, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On February 11, 1976, Administrative Law Judge Bernard J Seff issued the attached Decision in this proceeding Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed a brief in reply to Respondent's exceptions Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his 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, San Clemente General Hospital, San Clemente, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order The gravamen of the complaint is that the above-men- tioned notice "threatened the nurses with reprisal if they testified at a National Labor Relations Board hearing con- trary to Respondent's interest or gave testimony in the form of an affidavit to agents of the National Labor Rela- tions Board contrary to Respondent's interests " All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent Upon the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent operates a general acute care hospital locat- ed at 654 Camino De Los Mares, San Clemente, Califor- ma During the year immediately preceding issuance of complaint, Respondent, in the course of its business opera- tions, performed services valued in excess of $250,000 and purchased and received goods and supplies valued in ex- cess of $6,000 directly from suppliers located outside the State of California The complaint alleges, the parties sti- pulated, and I find that Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act ' In affirming the Administrative Law Judge's finding that Respondent violated Sec 8(a)(1) of the Act by posting a coercive notice, we do not rely on evidence concerning the subjective reaction of several employees to the notice DECISION STATEMENT OF THE CASE BERNARD J SEFF, Administrative Law Judge This case was tried at Oceanside, California, on November 25, 1975 The charge and four amended charges were filed on June 24, June 25, July 10, and September 15, 1975,' by United Nurses Association of California The complaint, which is- sued on September 16, alleges that San Clemente General Hospital, herein the Respondent or the Hospital, posted a notice to all registered nurses which the General Counsel alleges violated Section 8(a)(1) and which contained coer- cive and threatening language i All events took place in 1975 unless otherwise indicated III THE ALLEGED UNFAIR LABOR PRACTICES It is undisputed that on June 13 there was posted on the hospital bulletin board the following notice TO ALL REGISTERED NURSE EMPLOYEES FROM JAMES D EVERETT, ADMINISTRATOR Very serious charges have been filed by the Union who is supposedly representing a number of employ- ees in the above-mentioned classification against the management of this hospital As a result of this, the scheduled election has been postponed Administration denies all charges as allegated and a countersuit will be filed against those making such allegations when such are fully described in court At this time we realize it is a difficult time for all employees We beg that you be patient during this 2 The unopposed motion of counsel for the General Counsel to correct the transcript of the record is hereby granted 224 NLRB No 59 SAN CLEMENTE GENERAL HOSPITAL 379 difficult time I am quite certain that for most, all will be for the best The prime concern at this time is care of the patient The General Counsel offered the above document in evi- dence and said that he would not adduce any testimonial evidence but would posit his case on the notice The major thrust of Respondent's defense is that nowhere in the said notice is there anything stated which threatened the nurses with reprisals if they testified at an NLRB hearing contrary to Respondent's interests, nor is anything stated about giv- ing testimony in the form of an affidavit to agents of the NLRB contrary to Respondent's interests Particular attention is called by the General Counsel to the paragraph in this notice that "administration denies all charges as allegated and a countersuit will be filed against those making such allegations when such are fully de- scribed in court " The Charging Party adduced testimony from two regis- tered nurses, Louise Blasche and Susan Glasgow, who were employed by Respondent at the time the events described in the complaint occurred but later resigned from their em- ployment Both Blasche and Glasgow testified that they were afraid to give testimony relating to the charge because they felt that, if they did so, they would be sued in a civil action brought against them by Respondent Blasche testified as follows I knew that charges were being brought and I knew people involved and the letter frightened me I thought that if-that it would be difficult for me to ever give testimony because I thought a civil suit would be brought against me Glasgow testified as follows I felt that the letter was very threatening to me I was very fearful Q What were you fearful of? A I was afraid of losing myjob and I was afraid of being sued and I was afraid that if I did lose my job it would be difficult for me to find a position in one of the hospitals in the area Glasgow was interrogated by a Board agent and asked to sign a statement relative to the charges that were filed Q Did you give him the information A No Q Did you refuse to give its A Yes Q Did you state to him some reason why you re- fused its A I told him that I was afraid and I needed some time to think things over The above-described incident took place at a time when Glasgow was still employed by the Hospital As its defense Respondent elicited from Hospital Ad- ministrator Everett the following information Following the receipt of the prior document [the no- tice of January 13] that you showed me, I became very unhappy, very angry at the Union Therefore, I posted this letter stating that in all probability when this was over I would take civil action against the Union for accusations made to me Q What is it that you had in mind specifically, if there was any one thing specific, when you used the phrase countersuit in that document, General Counsel's Exhibit 6' A Well, I thought that accusations had been made against me and against the hospital which were untrue and I felt that if false accusations were proven untrue, therefore, I had civil means of getting retribution Q For example'? A Apologies Q Did you intend that the notice, that is General Counsel's Exhibit 6, in any way referred to the nurses themselves as opposed to the nurses or their attorney'? A I did not direct that to the nurses Q Can you tell me why you posted on the bulletin board when you say you did not direct it to the nurses You mean you did not direct the accusations to the nurses A The accusations yes Q Why did you post on the notices bulletin board Did you have a reason'? A Yes, I had a reason As I say, I was very angry when the accusations were made I wanted the nurses, in entirety, those who read the bulletin board, to know that such charges had been filed I wanted them to be aware that the charges had been filed Under cross-examination by the General Counsel, the fol- lowing question was asked The letter of June 13, in paragraph 3, in which you state that the administration denies all charges as alle- gated and a counter suit will be filed against those making such allegations when such are fully described in court that you were only referring to the Union A Yes Q And any phraseology or terminology of a "counter suit" you were only looking for an apology'? A Yes sir It later developed in the testimony of Everett that he did not send a copy of the letter of June 13 to the Union Despite the fact that he claimed that the purpose of the letter was to let the Union know that a countersuit might possibly be filed against it, the notice was addressed to the nurses and put on the bulletin board to all registered nurs- es Under further cross-examination by the Charging Party's counsel, Everett said that he did not write a letter to the Union asking for an apology, nor did he write a letter to the Charging Party's attorney asking for an apology Under further questioning by the Charging Party's attor- ney, he was asked why he didn't write directly to the Union, and his answer was as follows "I cannot answer why I did not write the Union or I did not write Joe Blow or who it was " 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings and Analysis The case turns on the distinction between threatening to bring a countersuit which is intimidatory and actually commencing legal action The Board and the courts have said that a threat to file suit which has the effect of harass- ing employees is violative of the Act The actual filing of a lawsuit is not a violation of the Act In the case at bar, two witnesses, whom I credit, gave mutually corroborative testimony that they were frightened by the possibility of being sued Respondent offered no testimony from other employees similarly situated as Blasche and Glasgow in refutation of the witnesses who did testify Furthermore, Everett testified that he was "very upset and very angry with the Union " It is significant that Everett testified that his reason for threatening a lawsuit was to secure an apology from the Union for certain of its statements in preelection propaganda In this connection, it is especially to be noted that his threat contained in the notice was not addressed to the Union from whom he said he expected an apology, but only to the registered nurses I do not credit the testimony of Everett because he stat- ed he wanted to secure an apology from the Union and nevertheless he addressed his notice to the registered nurs- es and admitted he sent no copy of the letter to the Union or the Union's attorney This inconsistent testimony is at variance with his explanation of the reason for posting the notice The fact that both Blasche and Glasgow refused to sign affidavits when requested to do so by agents of the Board while they were employed by the Respondent and their ultimate willingness to testify for the Union which they did only when they were no longer employees demonstrates the fact that they feared reprisal from the Hospital while they were in its employ The General Counsel contends "the Board has repeated- ly stated that it should not infringe upon the right of any person to seek redress in the courts " United Aircraft Corpo- ration (Pratt and Whitney Division), 192 NLRB 382 (1971), Clyde Taylor d/b/a Clyde Taylor Company, 127 NLRB 103, 108 (1960) However, a threat to file a legal action may be violative of Section 8(a)(1) of the Act if it is made in a context of harassment and coercion In Clyde Taylor Company, supra, the employer threat- ened a libel suit unless the charging party withdrew the charges filed against it with the Board In affirming the Administrative Law Judge's finding of the violation by vir- tue of this threat, the Board emphasizes that such a threat restrains employees in the exercise of their right to file charges under the Act Since the first paragraph specifically refers to the filing of the Union's charge, it is clear that the notice was reason- ably calculated to deter employees of Respondent from implementing the Union's charge, by providing statements in support of the charge Accordingly, the implied threat is no less clear than in Clyde Taylor Company, supra, and the rationale adopted there is applicable here The Board's standard with regard to threats of lawsuit as an unfair labor practice continues to be that stated in Clyde Taylor Company, supra Where such a threat is of "a harass- individual contemplating filing a charge from doing so, "it is an unfair labor practice " In the case at bar Everett testified that he was very upset and very angry at the Union for the remarks made about the Hospital and for filing a charge He vented his spleen by threatening to file a lawsuit " against those making such allegations " Blasche and Glasgow, who were representa- tives of the nurses employed by Respondent, credibly testi- fied that upon reading the notice they became scared be- cause they believed that if they gave testimony or a statement in support of the charge they would be defend- ants in a countersuit Therefore, they refused to give statements to the Board agent It is apparent that the pur- pose for threatening a countersuit was to intimidate, har- ass, and coerce the nurses with reprisals if they gave testi- mony at a hearing or signed affidavits for agents of the Board By such action, Respondent violated Section 8(a)(1) I so find Upon the foregoing findings of fact and the entire rec- ord, I make the following CONCLUSIONS OF LAW I The Respondent, San Clemente General Hospital, is and at all material times has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 United Nurses Association of California is a labor organization within the meaning of Section 2(5) of the Act 3 By the threat to bring a countersuit against those making the allegations that the Respondent has engaged in certain activities as set forth in its notice to the nurses dat- ed June 13, 1975, the Respondent has interfered with, re- strained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guar- anteed to them in Section 7 of the Act, and thereby has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, it will be recommended that it cease and desist therefrom and from like or related inva- sions of the employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the pur- poses and policies of the Act Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDERS The Respondent, San Clemente General Hospital, San Clemente, California, its officers, agents, successors, and assigns, shall ing nature," which would normally tend to intimidate an Rules and Regulations of the National Labor Relations Board , the findings 3 In the event no exceptions are filed as provided by Sec 102 46 of the SAN CLEMENTE GENERAL HOSPITAL 381 1 Cease and desist from (a) Threatening to file a civil damage action against its employees for participating in the filing of the charge against Respondent (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action which will ef- fectuate the policies of the Act (a) Post at its hospital in San Clemente, California, cop- ies of the attached notice marked "Appendix "'1 Copies of said notice on forms provided by the Regional Director for Region 21, after being duly signed by the Respondent's representative, shall be posted by it immediately upon re- ceipt thereof, and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 4In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading `Posted by Order of the National Labor Relations Board shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board ' notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other ma- terial (b) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten the United Nurses Associa- tion of California or the registered nurses employed by us that we will file a civil damage action against cer- tain of our employees for participating in filing the charge in Case 21-CA-13756 WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act SAN CLEMENTE GENERAL HOSPITAL