Illinois Central Community Hospital

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Illinois Central Community Hospital and Hospital Employees Labor Program Illinois Central Community Hospital and Hospital Employees Labor Program of Metropolitan Chica- go, Petitioner Cases 13-CA-13899 and 13-RC- 13589 June 10, 1976 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On February 13, 1976, Administrative Law Judge Frank H Itkin issued the attached Decision in this proceeding Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 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, Illinois Central Commu- nity Hospital, Chicago, Illinois, its officers, agents, 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950) enfd 188 F 2d 362 (CA 3 1951) We have carefully examined the record and find no basis for reversing his findings The Administrative Law Judge found Objections 11, 12, and 13 to be meritorious Objection 11 involved the interrogation of four employees in- cluding employee Marigo Vallo Respondent contends that the interroga- tion of Vallo occurred in November 1974, prior to the filing of the petition on December 5, 1974, and therefore should not be considered as a basis for sustaining the objection or setting aside the election We agree However inasmuch as the three remaining interrogations did occur within the critical period after the petition was filed, we will adopt the Administrative Law Judge's recommendation that Objection 11 be sustained to that extent along with Objections 12 and 13, and shall set the election aside and direct a second election successors, and assigns, shall take the action set forth in the said recommended Order IT IS FURTHER ORDERED that the election held on January 14 and 15, 1975, in Case 13-RC-13589 be, and it hereby is, set aside [Direction of Second Election and Excelsior foot- note omitted from publication ] DECISION FRANK H ITKIN, Administrative Law Judge These con- solidated cases were tried before me in Chicago, Illinois, on November 24 and 25, 1975 Unfair labor practice charges were filed by the Union in Case 13-CA-13899 on January 13, 1975 An unfair labor practice complaint issued on Au- gust 29, 1975, alleging that Respondent Employer violated Section 8(a)(1) of the National Labor Relations Act by interrogating employees concerning their union activities or interests, by threatening an employee with loss of em- ployment because of her union activities and by announc- ing to employees that new benefit plans were being formu- lated in an attempt to discourage and undermine employee support of the Union Further, a representation election was conducted at the Employer's facility on January 14 and 15, 1975, in Case 13-RC-13589 The Union filed time- ly objections to conduct affecting the results of the elec- tion On September 25, 1975, the Regional Director for Region 13 issued a report on objections, order consolidat- ing cases, and direction of hearing The Regional Director determined that substantial and material issues were raised by the objections He therefore ordered that a hearing be held to resolve the issues raised by the objections in the representation case and, further, that Cases l3-CA-13899 and 13-RC-13589 be consolidated for purposes of hearing, ruling, and decision Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the following findings of fact and conclusions of law 1 FINDINGS OF FACT I THE UNFAIR LABOR PRACTICE PROCEEDING A The Sequence of Events Respondent Employer, a corporation of the State of Illi- nois, maintains its main office and place of business at 5800 South Stoney Island Avenue in Chicago where it is engaged in the operation of a hospital and health care insti- tution During the past fiscal year, Respondent received revenues in excess of $1 million in the course of its business operation During the same period, Respondent purchased and received at its Chicago facility goods and materials valued in excess of $25,000 which were shipped directly i General Counsels motion to correct the transcript which is unopposed is hereby granted 224 NLRB No 93 ILLINOIS CENTRAL COMMUNITY HOSPITAL 633 from outside of the State of Illinois I find and conclude, as stipulated, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act And, I find and conclude, as further stipulated, that the Union is a labor organization within the meaning of Section 2(5) of the Act Marigo Vallo is employed by Respondent as a nurses aide She attended her first union meeting during late Sep- tember or early October 1974 She was then given a num- ber of union cards to distribute among her coworkers She later passed out some 25 union cards to employees During mid-November 1974, Vallo was questioned at work by Dr John Mendes, then Respondent's director of hospital edu- cation Vallo testified He [Dr Mendes] told me to come into his office and I sat down and he told me that he had heard rumors about me I asked him what type of rumors and he told me that he had heard that I was passing the peti- tion around for the people to join the Union I asked him how he heard these rumors and he told me that there were certain people who came to him for advice and they would be scared that I would [force them into] doing something I told him they shouldn't be afraid, that if they wanted to know anything they could come and see me He asked me why I should want tojoin a Union and I told him some of the things I was dissatisfied with and he said Why don't you go and look for another job7 I told him I didn't want to do that, and I told him I felt it was my right to orga- nize if I wanted to 2 Dr Mendes, employed by Respondent as director of hospital education from February 1972 to July 1975, ac- knowledged that he questioned employee Vallo about a union petition "maybe a month before all the Union activi- ty became overt " Dr Mendes testified I passed her in the hall and I had heard a bunch of scuttlebutt and I asked Marigo if she was circulating a petition and if so, what for, and she said she wasn't I said if there was anyone with a little beef they should take it to the nurse's office and Mrs Slater, the direc- tor of nursing, to handle it Dr Mendes acknowledged that he "may have said some- thing" about his conversation with employee Vallo "to the director of nursing," but he was "not certain " 3 Dr Mendes acknowledged that about 2 weeks before the representation election he was given a list containing the names of four employees by William Henning, Respondent's personnel director Dr Mendes testified Q Were you given instructions as to what you were to talk to the employees about? A Yes Q What were those instructions? A How they felt about the Union, about being or- ganized Dr Mendes spoke with three of the four employees He spoke with two of the employees at one time in his office and he spoke with the third employee "on the floor" in the hospital According to Dr Mendes, "I asked [the two em- ployees in the office] how they felt about unions or about being unionized and if they felt that the Union could do something for them management couldn't do or wasn't already doing for them " Dr Mendes recalled "I said [to the employees] we had been requested to search how the employees, how they felt about the Union, and what they felt the Union would achieve for them that man- agement would not " 4 Dr Mendes identified the two employees who were questioned by him in his office However, he could not recall the name of the third employee who was questioned by him "on the floor " Dr Mendes acknowledged that the "content" of his conversation with the third employee "was the same " Dr Mendes testified that he said to the third employee, something like the fact he was aware of the Union campaign in progress and the management wanted to know how the staff felt about these things and, as I [Mendes] recall, [the employee] didn't seem to have much interest, and I think the reason for that was be- cause he was a part-time person, but it is foggy in my mind Further, Dr Mendes acknowledged that he reported to Personnel Director Henning the results of his conversa- tions with the three employees 5 Thereafter, on Friday, January 10, 1975, 4 days prior to the election, Hospital Administrator Jerome Kunnath and Personnel Director William Henning conducted three meetings with the employees concerning the election The first meeting was to commence at 6 a in, the second meet- ing was to commence at noon and the third meeting was to commence at 4 p in 6 Employee Vallo testified that she ar- rived at the first meeting about 6 a in on January 10 with another nurses aide, Sally Ward Vallo recalled that only Administrator Kunnath was present at the time Vallo tes- tified Mr Kunnath looked at our ID pictures and he asked us our names When I told him my name he said I 2 On December 5, 1974, the Union filed a representation petition in Case 13-RC-13589 On December 27, an agreement for a consent election was approved by the Regional Director The election was held on January 14 and 15, 1975 Of approximately 49 eligible voters in the agreed-upon unit, 19 ballots were cast for the Union, 25 ballots were cast against the Union, and I ballot was challenged 3 Employee Vallo's testimony concerning her interrogation by Dr Mendes, as recited above, is substantiated in part by the testimony of Dr Mendes Insofar as the testimony of Dr Mendes conflicts with the testimo ny of employee Vallo, I am persuaded on this record that employee Vallo s recollection of the incident, as stated above, is more complete, reliable, and trustworthy 4 Dr Mendes was asked Do you know if other [supervisors] received similar instructions3' He answered `Yes, but I don t recall who they were " 5 1 credit the above testimony of Dr Mendes I note that at times Dr Mendes testimony was vague and unclear Nevertheless, on the record be- fore me I am persuaded that Dr Mendes questioned the three employees as recited above and reported the results of his conversations to Personnel Director Henning 6 Administrator Kunnath previously sent employees a letter stating, inter a/ia You are cordially invited to attend an open discussion meeting on [the times stated] to have any further questions answered as to how the up-coming union election will affect you personally and to hear managements point of view See Resp Exh I 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD understand you are pro-union, and I told him I was, and then he said something to the effect that we would have a debate later on Valle, further testified When we sat down, Mr Kunnath had a copy of the BRAC contract 7 and [said that] some people said they had felt they were sold out with BRAC and he kind of agreed with them, but they did get a 6 8 percent raise and that the non-union employees would also get that About this time, according to Vallo, Personnel Director Henning joined the meeting Vallo recalled that they dis- cussed the termination of a coworker 8 "and then started talking about our hospitalization plan " Vallo testified Both Sally and I said we had received bills that should have been paid by the hospitalization plan, and Mr Kunnath said that was the only plan they could get at the time they bought the hospital but they were work- ing on another plan and we would get another plan Then Mr Henning said if we could only see the plans on Mr Kunnath's desk that he had worked on since he started working there, but Mr Kunnath said that would be a promise and he couldn't do this About this time, other employees joined the meeting According to Vallo, a number of employees who joined the meeting "said they were angry because their checks didn't come in "Kunnath and Henning explained to the employees that the hospital "had just changed over to data processing and the computer had made a mistake " Employee Elaine Jinkerson "complained" that she "felt she didn't get her raise on time and it was only ten cents and she didn't think it was enough, and people on the night shift were complaining about some of the things going on during the night shift " There were, as Vallo testi- fied, employee complaints about their supervisors Kun- nath and Henning responded "They both said they were aware there were many problems with supervisors and evaluations, and this is when Mr Henning said we would get another evaluation plan " 9 Vallo and Ward also attended the noon meeting on Jan- uary 10 When Kunnath observed Vallo present at the sec- ond meeting, he said No, not you again And I [Vallo] said why not We are supposed to tell our side of the story and I referred to a letter we had gotten in the mail [Resp Exh 1] And then Mr Kunnath looked at Sally Ward's ID picture and said Oh, you are one of them And then he looked at my ID picture and said No, you are not the other one 7 The Brotherhood of Railway and Airline Clerks (BRAC) represents a unit consisting of the Employer s dietary, clerical, and housekeeping person- nel The unit in the instant case includes only nurses aides and orderlies at the Employer's facility 8 On cross-examination Vallo explained that Henning came into the meeting shortly after the termination of employee Williams was discussed On cross-examination, Vallo recalled Some of the others were talking about the problems they had with their supervisors on the night shift and Mr Henning again said if they could only see the plan on Mr Kunnath's desk Employees Vallo and Ward asked Administrator Kunnath "what he was talking about " Kunnath responded he said he had got a phone call from BRAC and he said [Sally said he] had made a statement in the other meeting which he didn't make According to Vallo, "Sally Ward said she didn't call BRAC and she was quite upset about it " Kunnath and Henning then conducted their second meeting Vallo testified People again were saying they had lost a lot of bene- fits, that they had added work load and no compensa- tion for it And Mr Henning said that things would be better because he had other plans on Mr Kunnath's desk, and he couldn't say anything about that because that would be a promise * I [Vallo] asked Mr Henning what type of plans he was talking about and he said it would be a new evaluation plan, a compensation plan and a pension plan, but he couldn't say anything further about it Mr Hen- ning said that we would be more or less evaluating ourselves Vallo testified that she had never heard of these "plans" prior to the January 10 meetings Sally Ward, also employed by Respondent, testified that she attended the morning and noon meetings on January 10, 1975 She recalled that, at the first meeting, Mrs Vallo and I were there at the same time and he [Kunnath] looked at our ID tags and asked us if we were for the Union Employee Ward testified that Kunnath said "that he didn't know why we needed a union because the BRAC contract was no good for the ones who had it in the hospital " Ac- cording to Ward, Kunnath also said he had just received the contract from BRAC and that they had sold the people out, they had received a 6 8 percent increase In addition, Ward testified Mr Kunnath said that the Union wouldn't do us any good because they couldn't help us as far as the ad- ministration was concerned and they couldn't guaran- tee us anything Mr Henning said that they had a lot of plans for us and we didn't need the Union, but he wouldn't tell us anything about it because it would be like a promise * * * Mr Kunnath said that we would have better benefits, that we didn't need the Union because they really couldn't do anything and we would just be wasting our money Employee Ward testified that, at the second meeting, Administrator Kunnath accused her of having reported to BRAC what Kunnath assertedly had said about BRAC at the earlier meeting Ward, as she explained, became "upset about being accused of something I didn't do " Ward, like ILLINOIS CENTRAL COMMUNITY HOSPITAL Vallo, had not heard of the above "plans" prior to the January 10 meetings Personnel Director Henning acknowledged Q And at these meetings [on January 10] did you bring up plans you had on your desk, plans you had worked on that were as to pensions, compensation, vacations, evaluations' A I mentioned them briefly Henning also acknowledged that he gave oral lists of names of employees to his department heads Henning as- serted that he instructed each of his department heads to "approach" the employees "in a low key manner and at- tempt to inquire of them what their issues and problems were and to make a simple low key statement of fact that management would not prefer a union, that that was our opinion, and that we wished to work out our problems together " Henning could not recall specifically when these instructions were given to his supervisors 10 Henning testified that he started working with Respon- dent Employer as personnel director during September 1974 Henning claimed that during November 1974 he met with the employees and discusssd with them, inter aha, a "personnel management program", "a manpower procur- ing and regrouping program", "plans to look at the com- pensation problem", an "employee relations program for non-union people concurrent with a labor relations pro- gram for union people in the hospital", the "hospital's ben- efit program" and a "survey to see if whether we could improve the carrier's policy or benefit guarantee", "sick leave policies", "vacation policies", and "holiday policies " Henning claimed that when he spoke with all the employ- ees about the above subjects during November 1974 he was unaware of any organizational effort at the hospital Hen- ning claimed that Dr Mendes had not disclosed to him his conversation with employee Vallo, as discussed above Henning claimed that he first learned of Dr Mendes' con- versation with Vallo at the hearing before me Henning, however, acknowledged that he had asked Dr Mendes to talk to certain employees prior to the election, that Dr Mendes "reported back about a week later", and that Hen- ning then "thanked him for it " According to Henning, Dr Mendes, in reporting back to Henning, said he had touched base with some of his people, not all, he didn't give their names and he simply said he had completed his task Henning was asked "What did he [Mendes] say he had accomplished" Henning testified "He didn't say any- thing He dust said he had delivered the message and that was it " Henning testified that he made the following statements at the employee meetings on January 10, 1975 10 In addition, Henning testified that he issued to the employees on Janu- ary 10, 1975, with their paychecks a three-page letter entitled To All Nurses Aides and Orderlies-Some Advice And Counsel 'See G C Exh 2 Henning also testified that he distributed to the employees a four-page doc ument entitled The Most Frequently Asked Questions/Answers About A Union,' and one-page attachment entitled "Major Reasons Why Manage- ment Believes You Should Vote No To The Union See G C Exh 3 Henning was uncertain whether this latter document (G C Exh 3) was first distributed with the employee paychecks on January 10 or two weeks earlier 635 It was basically what I had said at all of them I briefly stated that we wanted to let our hair down and state that we didn't feel that the Union was necessary That was our position but we felt they had the right to hear both sides of the story and then make a choice for themselves and I went into a brief explanation of plans and outlines of plans I had discussed back in November 1974 * * * That we had a manpower recruitment program, a poli- cy already being developed, plans for a management development program, that I would turn to look at a compensation program, as well as a benefits program, and we were trying to develop an employee relations policy which was consistent with the union contract Henning testified "I briefly outlined that part of the com- pensation program was an evaluation plan whereby the employees evaluate themselves and the supervisors evalu- ate them and their scores are combined " li On cross-examination, Henning could not recall exactly when in November 1974 he held his initial meetings with employees Henning conducted no meetings with the em- ployees between November 1974 and January 10, 1975 Henning was asked if the subject of the "plans" was "brought up in response to employee questions " He replied " mostly not " Henning was asked "What did you state about [the sick leave and vacation] plans9" He answered I simply said we did not have the form of it specifical- ly, the sick leave plans, I was contemplating changing from a sick leave to personal leave plan but that it was being looked at and the plan was going to be drafted up forming what I thought was competitive Jerome Kunnath, the Employer's administrator, testified with respect to the January 10 meetings, in part as follows Q Do you remember prior to the beginning of the formal part of the meeting what the chit-chat was9 A No, I don't When asked about the "discussion" at the 6 a in meeting, he claimed "There is no way that I would remember speci- fically any of the arguments, any of the questions " Kunnath then asked counsel "would you lead me into that?" When asked if anything was said about the BRAC contract, Kunnath responded "I may have brought it up I am not actually sure how " Kunnath acknowledged that there was discussion about the "current hospitalization plan" for employees I believe we had a Continental plan then and we "Henning recalled that Kunnath spoke about the strike at the Wood- lawn Hospital and `that could happen to us as well ' Henning "didn t hear [Kunnath] say anything about the BRAC contract at the first two meetings According to Henning the noon meeting was ' basically a repeat' of the morning meeting As for the third meeting, Henning testified that substantially the same thing' occurred Henning asserted We told them to vote their convictions and made the floor open to questions and the questions varied and the responses as to the benefit plans, what they were, but at each of the meetings it was stated that it should not be taken as a promise of benefits 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD weren't too happy with it and we were working on a Blue Cross plan and we may have mentioned that Kunnath acknowledged that when he saw employees Vallo and Ward attending two or more meetings, he was "rather surprised", they assertedly were "vociferous' , and he might have said "oh boy, here we go again or something like it, in jest " 12 B Discussion Section 7 of the National Labor Relations Act guaran- tees employees "the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities," as well as "the right to refrain from any or all such activities " Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain or coerce employees" in the ex- ercise of these rights It is settled that the "broad purpose of Section 8(a)(1) is to establish `the right of employees to organize for mutual aid without employer interference' " N L R B v Exchange Parts Company, 375 U S 405, 409-410 (1964) In assessing employer conduct under Sec- tion 8(a)(1), the courts have repeatedly noted that "the em- ployee is sensitive and responsive to even the most subtle expression on the part of his employer, whose good will is so necessary " for continued employment N L R B v Griswold Mfg Co, 106 F 2d 713, 722 (CA 3 1939), NLRB v Federhush Co, 121 F 2d 954, 957 (C A 2, 1941) See also, NLRB v Gissel Packing Co, 395 U S 575, 616-620 (1969) And, as the court stated in Time-O- Matic, Inc v N L R B, 264 F 2d 96, 99-100 (C A 7, 1959) A violation of Section 8(a)(1) of the Act was complete when the statements were made to prospective em- ployees No proof of coercive intent is necessary under Section 8(a)(1) of the Act, the test being "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act " NLRB v Illinois Tool Works, 153 F 2d 811, 814 (C A 7, 1946) On the credible evidence of record as detailed above, I find and conclude that Respondent Employer violated Sec- tion 8(a)(1) of the Act when Dr Mendes, the director of hospital education,13 called employee Vallo to his office and privately questioned her about her suspected prounion activities Employee Vallo, during her interrogation, was given no assurances against repnsals by management In- deed, Dr Mendes, upon ascertaining "why" employee Val- lo wanted to join the Union, admonished the employee 12 I credit the testimony of employees Vallo and Ward as recited above with respect to what was said at the meetings on January 10, 1975 The testimony of Vallo and Ward is in part mutually corroborative Further, their testimony is substantiated in part by the testimony of Kunnath and Henning And, relying upon the demeanor of the witnesses, I am persuaded that the testimony of Vallo and Ward as stated herein is a reliable com- plete, and trustworthy account of the January 10 meetings Insofar as the testimony of Kunnath and Henning conflicts with the testimony of Vallo and Ward, I credit the testimony of Vallo and Ward as more trustworthy 13 It is undisputed and I find and conclude that, at all times pertinent to this proceeding, Dr Mendes was a supervisor and agent of Respondent within the meaning of Sec 2(11) and 2(13) of the Act "Why don't you go and look for another job9" As the Board stated in Padre Dodge, 205 NLRB 252 (1973), "Such remarks clearly convey to an employee the threat that management considers engaging in union activities and continued employment incompatible " Accordingly, I find and conclude that Respondent coercively interrogated and threatened employee Vallo, in violation of Section 8(a)(1) of the Act In addition, Dr Mendes acknowledged that, after the Union's representation petition had been filed with the Re- gional Director and a few weeks prior to the scheduled election, he was given a list of names of four employees by Personnel Director Henning with instructions to ascertain "how they felt about the Union, about being unionized " Dr Mendes questioned three employees, two in his office at one time and one on the floor He admittedly asked employees "how they felt about the Union"-"how they felt about unions or about being unionized " He admittedly apprised employees "we had been requested to search how the employees, how they felt about the Union and what they felt the Union would achieve for them that Management would not " Dr Mendes acknowledged that other supervisors received similar directions And, Per- sonnel Director Henning acknowledged that he divided up the names of the employees among his department heads assertedly to be "approached in a low key manner " The record does not suggest that Dr Mendes, or any other department head or supervisor, assured questioned em- ployees that no reprisals would be taken against them for engaging in Section 7 activities In Birdsall Construction Company, 198 NLRB 163 (1972), the Board (Member Jenkins concurring) held that the employer's "systematic interrogations of unit employees violated Section 8(a)(1) of the Act and interfered with the exercise by employees of a free and untrammeled choice in the election " The court, in enforcing the Board's Order, stated in N L R B v Birdsall Construction Company, 487 F 2d 288, 291 (C A 5, 1973) In view of the totality of circumstances surrounding the systematic interrogations of employees regarding their Union sympathies, the Board could properly conclude that the employer violated Section 8(a)(1) of the Act See N L R B v Cameo, Inc, 340 F 2d 803, 804, cert den 382 U S 926 Here, too, in the context of Respondent's coercive interro- gation of and threat to employee Vallo and its subsequent interrogation of and promise of benefits to employees on January 10, I find and conclude that Respondent violated Section 8(a)(1) when Dr Mendes interrogated the three employees about their union interests Four days prior to the representation election, on Janu- ary 10, 1975, management conducted three meetings of employees for the purpose of discussing the election I find and conclude that Administrator Kunnath and Personnel Director Henning 14 engaged in conduct at these meetings which tended to interfere with employee Section 7 rights Thus, as recited above, at the first meeting, Administrator Kunnath said to employee Vallo "I understand you are 14 It is undisputed and I find and conclude that at all times pertinent to this proceeding, both Kunnath and Henning were supervisors and agents of Respondent within the meaning of Sec 2(11) and 2(13) of the Act ILLINOIS CENTRAL COMMUNITY HOSPITAL pro-union " Vallo acknowledged that she was pro- union And, as employee Ward explained, "He [Kunnath] looked at our tags and said, `Aren't you for the Union' and we said, `we were"' Thereafter, management's repre- sentatives repeatedly apprised employees at these meetings, inter alia, that "they were working on another [hospitaliza- tion] plan", that the employees "would get another [hospi- talization] plan", that if the employees "could only see the plans on Mr Kunnath's desk that he had worked on that the employees "would get another evaluation plan", that "things would be better because he [Henning] had other plans on Mr Kunnath's desk, and he couldn't say anything about that because that would be a promise", that "it would be a new evaluation plan, a compensation plan and a pension plan, but he couldn't say anything fur- ther about that because that would be a promise 11, that the Union "wouldn't do us any good ", and that "they had a lot of plans for us and we didn't need the Union, but he [Henning] couldn't tell us anything about it because it would be like a promise " Management's representatives, by questioning employees about their union interests, and by in effect promising employees bene- fits in order to discourage employee support of the Union, violated the proscription of Section 8(a)(1) of the Act As the Board stated in Viking of Minneapolis, 171 NLRB 1155, 1156 (1968) In our view, [the] speeches contained express or im- plied promises of specific benefits and improvements in terms and conditions of employment if the employ- ees refrained from joining or assisting the Union Moreover, from these speeches, the employees could reasonably understand that these benefits would be achieved without the intervention of a bargaining rep- resentative and therefore that the selection of such a representative was an unnecessary expense and futile [Footnotes omitted ]15 In sum, I find and conclude on this record that Respon- dent Employer violated Section 8(a)(1) by interrogating, threatening, and promising benefits to employees in order to discourage their support of the Union II THE REPRESENTATION PROCEEDING The Union alleged in its objections to the representation election, as follows 1 The Employer, by its supervisors and other agents, promised employees benefits for voting in the NLRB election and implied that those benefits would be granted for voting no 2 The Employer, by its supervisors and other i5 In Viking, supra, the Board noted that the promises `were not repeti- tions of earlier promises made to the employees' which "consisted merely of general assurances by the new management that things would be better " Here, too, I am persuaded that management's statements to its em- ployees on January 10 were not `repetitions of earlier promises ' but were, instead, "specific promises and assurances of new benefits which were "spoken during the course of an anti-union campaign' lbid I note in this respect, that Henning explained in some detail to the employees how his new "evaluation plan' would operate In short, he spoke of specific im- provements ' 637 agents, threatened employees that they would be re- quired to pay dues merely by the fact that a majority of those voting in the NLRB election voted yes 3 The Employer, by its supervisors and other agents, made material misrepresentations of fact at a time too late to be effectively answered 4 The Employer, by its supervisors and agents, promised the employees a 6 8 percent wage increase, plus a cost-of-living adjustment and pension allow- ance if they rejected the Union 5 The Employer, by its supervisors and other agents, threatened that there would be no improve- ments in working conditions if the Union were select- ed 6 The Employer, by its supervisors and other agents, threatened that economic strikers who were re- placed would lose their jobs, in violation of the rights of economic strikers under the National Labor Rela- tions Act to be recalled, even if replaced, as jobs open 7 The Employer, by its supervisors and agents, promised that in the future employees would be dis- charged only for just cause, if they rejected the Union 8 The Employer, by its supervisors and agents, threatened that wages would be "reduced" to a single level if the Union were selected 9 The Employer, by its supervisors and other agents, impliedly threatened to restrict the freedom of movement of employees if the Union were selected 10 By these and other acts and conduct, the Em- ployer, by its supervisors and other agents, interfered with the rights of employees to be free from restraint and coercion in the exercise of their freedom of choice in an NLRB election The Regional Director also determined, as a result of his investigation, to consider the following additional objec- tions I1 The Employer's Director of Hospital Educa- tion, John Daniels Mendes, states that sometime dur- ing the election campaign, he questioned four employ- ees in his office concerning their "feelings" about the Union and how they felt about being unionized 12 On January 10, 1975, the Employer held a series of three meetings in its fourth floor lounge to discuss the upcoming election with its employees The Em- ployer was represented at these meetings by its Ad- ministrator, Jerome Kunnath, and Personnel Director, William Henning Evidence from at least the first two meetings, which were held at 6 a in and 12 noon, re- spectively, indicates that various employees com- plained at those times about such matters as job secur- ity, job description, vacations, hospitalization plans, pension plans, the lack of cost of living increases, add- ed work loads, cuts in the number of sick days and the loss of such benefits as free lunches and train passes There is also some evidence which further indicates that in response to such complaints, Henning made promises of changes in employee benefits and other terms and conditions of employment 13 Witnesses for the Petitioner state that at the start of the first meeting for employees on January 10, 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1975, Administrator Jerome Kunnath interrogated them as to their union membership, sympathies and desires Kunnath denies that he engaged in such inter- rogations Objections 11, 12 and 13 are essentially similar to the unfair labor practice allegations discussed in Section I, su- pra I have found that Respondent violated Section 8(a)(1) of the Act by interrogating employees about their Union interests or sentiments and by promising them benefits in an effort to undermine employee support of the Union This conduct, as alleged in the complaint and in the above objections, occurred after the representation petition was filed I find and conclude that Respondent, by engaging in such conduct, also interfered with the exercise by employ- ees of a fair and untrammeled choice in the election Such conduct warrants setting aside the election and the direc- tion of a new election See Birdsall Construction Company, 198 NLRB 163, fn 3 (1972) The remaining objections, as quoted above, are princi- pally based upon the Employer's literature distributed to employees on January 10, 1975 (See G C Exhs 2 and 3 ) Counsel for the Employer argues, inter alia, "It is submit- ted that the literature distributed was clearly noncoercive, did not misrepresent material issues in the election and did not expressly or implicitly contain any threats of reprisals or unlawful promises of benefits The literature could have easily and capably been evaluated by the employees on their own and, in any event, the Petitioner [Union] had ample time to rebut any adverse inferences " The Union has filed no brief and, consequently, does not specifically refer me to the challenged portions of the written distribu- tions by the Employer Except insofar as Objections I through 10 are also included within Objections II through 13, I would overrule them for the following reasons Objection 1 Except insofar as this objection pertains to Objection 12, I would dismiss the objection as unsupported on the record before me See Objections 2 and 4, below Objection 2 The Employer stated to the employees in General Counsel's Exhibit 2, which was distributed on Jan- uary 10, 1975, in part as follows 3 IF YOU DO NOT VOTE AND IF THE MAJORITY OF THOSE VOT ING VOTE YES THEN ALL AIDES AND ORDERLIES MUST JOIN THE UNION AND PAY UNION DUES SO IT IS EXTREMELY IMPORTANT TO VOTE NO IF YOU DO NOT WANT THE HELP UNION If you're in doubt, vote No -it's so much cheaper' I find and conclude that the Employer thereby misrepre- sented to its employees that they would be required to pay union dues merely by the fact that a majority voted for the Union in the Board-conducted election Misrepresenta- tions such as this may seriously affect employees in their determination of representation Cf The Trane Co, 137 NLRB 1506, 1508-09 (1962), and TRW, Inc, 173 NLRB 1425 (1968) However, we have involved here a unit of some 49 voters This literature was distributed 4 days prior to the election And, on this record, I am persuaded that there was ample time and opportunity for the Union to reply to the Employer's literature and correct such mis- statements See TRW, Inc, supra, York Furniture Corp, 170 NLRB 1487 (1968) Objection 3 I would dismiss this objection as not sup- ported by the record except insofar as it may pertain to remaining objections wherein specific misrepresentations are discussed Objection 4 The Employer stated in General Counsel's Exhibit 2, in part as follows What is H E L P GUARANTEEING you for your moneys They cannot guarantee ANYTHING They must collectively bargain with management And management does not have to agree to ANY demand Wages, fringe benefits, etc must be bargained for In the course of collective bargaining you COULD end up with less of a total compensation and fringe benefit program than you already have "Is it all worth it9", especially in view of the fact that in the past, manage- ment has had a standing practice of granting the same wage increases and benefits to non-union personnel that were granted to B R A C Union personnel, WHENEVER WE WERE PERMITTED BY WAGE LAW TO DO SO BRAC (The other union at I C C H) and admin- istration just signed a 3-year contract with a 6 8% in- crease for 1975, plus a cost-of-living adjustment and a pension allowance This is more than the latest H E L P contracts are getting-WHY PAYS I do not find the above statements to constitute a promise to employees of a 6 8-percent wage increase and other ben- efits if they reject the Union, as alleged The Employer was explaining to the employees its "standing practice" with respect to the BRAC contract I would therefore dismiss this objection Objection 5 The Employer stated in General Counsel's Exhibit 2, in part as follows There are those who say that HE L P can force management to eliminate or change work practices or work duties, such as tray passing, team nursing, etc This simply is not true Decisions about how the Hospi- tal will be operated are inalienable "Management Rights" H E L P is telling you a he when they imply that they can affect `job duties" The hospital intro- duced these changes in nursing because studies showed that they were in the best interests of opera- tional efficiency and patient care They are practices which are observed by most hospital, especially includ- ing hospitals already organized by H E L P I note that in General Counsel's Exhibit 3, also distributed to employees on January 10, the Employer stated, in part The Union has no power legally or otherwise to force the hospital to operate in any way Your hospital is only required to bargain in good faith with the Union-any Union campaign promises are subject to collective bargaining Elsewhere in General Counsel's Exhibit 3, the Employer stated, in part The union may tell you that you have everything to gain and nothing to lose, but this is not true If the union gets in, and a contract is negotiated, the benefits ILLINOIS CENTRAL COMMUNITY HOSPITAL which would be provided by a contract, depend en- tirely upon what the union and Hospital agree to as a result of the negotiations The contract may provide some benefits which you don't now have and may, at the same time, eliminate some benefits which you now do have-it all depends upon what is agreed to by the Hospital, but one thing is certain, the union cannot guarantee the results, no matter what they now say On this record, I find and conclude that the Employer did not threaten employees that there would be no improve- ments in working conditions if the Union were elected, as alleged See Oxford Pickles, 190 NLRB 109 (1971) This objection is dismissed Objection 6 The Employer stated to employees in Gen- eral Counsel's Exhibit 2, in part as follows If the Union is voted in, we can't say whether you will have to go out on strike, but if you do, you should know that a striker may not collect unemployment compensation while on strike The Hospital is free to replace economic strikers with other workers And when the strike is over, a striker may not have a job and the law does not force the Hospital to re-hire a striker Ask the folks at Woodlawn Hospital if they rec- ommend HE L P After a year of having employees taking the brunt of the problem, H E L P still hasn't got their contract I find and conclude that the Employer, by the foregoing language, did not threaten that economic strikers "would lose their jobs" as alleged Cf Oxford Pickles, 190 NLRB 109 (1971), R & R Processors, Inc, 217 NLRB 562 (1975) I would therefore dismiss this objection Objection 7 The Employer stated in General Counsel's Exhibit 2 that "A good worker is never fired without cause If a worker is ever disciplined, it will be only for just cause, UNION OR NO UNION " I do not find this statement to constitute a "promise that in the future employees would be discharged only for just cause if they rejected the Union " I would dismiss this objection Objection 8 The Employer stated in General Counsel's Exhibit 3 that as a matter of information, pay increases negoti- ated by the Union would probably be on an "across the board" basis rather than on individual merit-and they always attempt to reduce all employees to one wage level I do not find a threat here to reduce wages "to a single level " In any event, the Union had ample time to respond to and answer this statement I would therefore dismiss this objection Objection 9 The Employer stated to employees in Gen- eral Counsel's Exhibit 3, in part as follows Q Will my personal freedom to move about and to communicate with other employees and manage- ment be affected by union representation9 A Again your working conditions in the event of union representation would be determined by what- ever terms were negotiated into a union contract It 639 is safe to say that those conditions would probably be different than what you have known in the past I do not find this statement to contain a threat to restrict "freedom of movement" if the Union is selected Cf Host International, Inc, 195 NLRB 348 (1972) I would therefore overrule this objection Objection 10 This general objection, except insofar as dealt with above, is overruled In sum, Objections 11, 12, and 13 are sustained and Ob- jections 1 through 10 are overruled CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent violated Section 8(a)(1) of the Act by in- terrogating employees concerning their union activities and interests , by threatening an employee with loss of employ- ment because of her union activities, and by announcing to employees that new benefit plans were being formulated in an attempt to discourage and undermine employee support of the Union 4 With respect to the 13 objections in the consolidated representation proceeding (Case 13-RC-13589), for the reasons stated in section II, supra, I would sustain Objec- tions 11, 12, and 13 and overrule the remaining objections Respondent, by engaging in such conduct, interfered with the exercise by employees of a fair and untrammeled choice in the election which was held on January 14 and 15, 1975 5 The unfair labor practices found herein affect com- merce within the meaning of Section 2(6) and (7) of the Act REMEDY To remedy the foregoing unfair labor practices, I will direct Respondent to cease and desist from engaging in such conduct or like or related conduct and to post appro- priate notices ORDER 16 Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this case, Respondent Illinois Central Community Hospital, its offi- cers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees concerning their union ac- tivities or interests (b) Threatening employees with loss of employment be- cause of their union activities (c) Announcing to employees that new benefit plans are 16 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 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 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being formulated in an attempt to discourage or undermine employee support of Hospital Employees Labor Program (H E L P) or any other labor organization (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the National Labor Rela- tions Act 2 Take the following affirmative action designed to ef- fectuate the policies of the Act (a) Post at its offices and facilities in Chicago , Illinois, copies of the attached notice marked "Appendix " 11 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 13, shall after being duly signed by Re- spondent be posted immediately upon receipt thereof in conspicuous places and be maintained for a period of 60 consecutive days Reasonable steps shall be taken to insure that notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith 17 In the event the Board's 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 ' APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence , the National Labor Relations Board has found that the Illinois Central Community Hospital violated the National Labor Relations Act and has ordered us to post this notice We therefore notify you that WE WILL NOT interrogate our employees concerning their union activities or interests WE WILL NOT threaten our employees with loss of employment because of their union activities WE WILL NOT announce to our employees that new benefit plans are being formulated in an attempt to discourage or undermine employee support of Hospi- tal Employees Labor Program (H E L P), or any other labor organization WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Na- tional Labor Relations Act ILLINOIS CENTRAL COMMUNITY HOSPITAL