Indio Community Hospital

INDIO COMMUNITY HOSPITAL 129 Indio Community Hospital and Communications Workers of America, Local 11588, AFL-CIO. Cases 21-CA-12970 and 21-CA-13350 June 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On March 26, 1976, Administrative Law Judge Richard D. Taplitz issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed a brief in support of the Decision. 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 complaint be, and it hereby is, dis- missed in its entirety. 1 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty 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 (C A 3 , 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge- This case was heard in Riverside , California, on December 3 and 4, 1975. The charge in Case 21 -CA-12970 was filed on September 4, 1974, by Communications Workers of Amen- ca, Local 11588, AFL-CIO, herein called the Union. A complaint based on that charge issued on October 31, 1974, alleging that Indio Community Hospital, herein called Respondent, violated Section 8(a)(1) of the National Labor Relations Act, as amended . The matter came on for hearing before an Administrative Law Judge on January 8, 1975, at which time all the parties agreed to an informal settlement agreement which was approved by the Regional Director of Region 21 on January 9, 1975. The Administra- tive Law Judge adjourned the hearing indefinitely for com- pliance with the settlement agreement. On January 29, 1975, the Union filed a new charge in Case 2l-CA-13350 alleging that Respondent engaged in a postsettlement vio- lation of Section 8(a)(3) and (1) of the Act. On March 5, 1975, counsel for the General Counsel moved the Adminis- trative Law Judge to remand Case 21-CA-12970 to the Regional Director for Region 21 for appropriate further proceedings. The motion was granted by order of the Ad- ministrative Law Judge dated March 12, 1975. On March 17, 1975, the Regional Director vacated and set aside the settlement agreement in Case 21-CA-12970. On March 19, 1975, the Regional Director issued an order consolidating Cases 21-CA-12970 and 21-CA-13350, and a consolidat- ed amended complaint alleging that Respondent violated Section 8(a)(1) and (3) of the Act. Issues The primary issues are: 1. Whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging Juanita Savoy because of her activities on behalf of the Union. 2. Whether the settlement agreement was properly set aside, and if it was properly set aside whether Respondent violated Section 8(a)(1) of the Act by threatening employ- ees with loss of employment or discharge if they supported the Union, and by promising employees increased benefits relating to a pension plan to discourage union support. 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 1. THE BUSINESS OF RESPONDENT Respondent is a corporation engaged in the operation of an acute proprietary hospital in Indio, California. Respon- dent annually derives gross revenue in excess of $250,000. It annually purchases and receives goods valued in excess of $50,000 from suppliers located in California who in turn purchase and receive those same goods directly from sup- pliers located outside of California. The complaint alleges, the answer admits, and I find that Respondent is an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 225 NLRB No. 17 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Sequence of Events 1. The setting Respondent operates a proprietary hospital in Indio, California. Surgery is performed in an operating room, called the OR, within the Hospital. The OR is customarily staffed by registered nurses, called RN's, licensed voca- tional nurses, called LVN's, and a housekeeper. On De- cember 2, 1974, Juanita Savoy underwent a surgical opera- tion and was placed on leave of absence.' Prior to her leave of absence, Savoy was an LVN scrub nurse in the OR. As a scrub nurse, she was required to "scrub" for surgically sterile operations and to hand the sterile instruments to the doctors who performed the operations. On January 20, 1975, while Savoy was still on leave of absence, Respon- dent laid her off. The General Counsel contends that the layoff was motivated by Savoy's union activity. Respon- dent contends that it laid off Savoy because the OR was overstaffed 2. Savoy's union activity and Respondent's knowledge thereof Savoy began her employment as an LVN with Respon- dent in October or November 1971 At that time she was assigned to general floor care. During the early part of her employment she worked for about 7 months on the night shift from 11 p.m. to 7 30 a.m. For about 6 weeks in 1973 she was off work because of an injury. For the last year of her employment with Respondent she was assigned to work as a scrub nurse in the OR Respondent considered her to be a good worker. She was given raises on July 1 and November 17, 1974. She also received a favorable written evaluation. Pamela Buxton, who was director of nurses 2 at the time Savoy was laid off, credibly testified that she had complimented Savoy on her climb through the ranks as a nurse and on her good work. She also credibly testified that Savoy was a good and industrious nurse.3 In the latter part of April 1974, Savoy contacted repre- sentatives of the Union and began to organize Respondent's employees on the Union's behalf. Savoy cir- culated showing of interest cards for the Union and openly talked with the employees regarding the benefits of union- ization . She organized an in-plant union committee. In ad- dition she held four union meetings at her home. Respon- dent had knowledge of Savoy's activities on behalf of the Union. Buxton admitted that beginning in April and May i At the time she went on leave of absence , Respondent did not have any forms available for such leaves and Respondent did not put in a written request for her leave However , Respondent treated her as being on leave of absence and Respondent concedes that her subsequent layoff was unrelated to the lack of written request 2 The complaint alleges, the answer admits , and I find that Buxton was a supervisor within the meaning of the Act 9 As is set forth in more detail below, Savoy did have some personality difficulties with certain coemployees and on one occasion she was given a reprimand by Respondent However, Respondent concedes that the layoff was not based on any misconduct of Savoy 1974 she saw Savoy and knew that Savoy was campaigning on behalf of the Union. Savoy's immediate supervisor, Sus- anne Caldwell, who was OR supervisor,4 admitted that during the summer of 1974 she knew about Savoy's union activity. On one occasion during that summer she went to Savoy's house to pick up her (Caldwell's) daughter who was being looked after by Savoy's daughter. She arrived at Savoy's house shortly before a union meeting was to begin and at that time she spoke to some union agents. Caldwell credibly testified that she allowed Savoy to leave work ear- ly so that Savoy could go home to prepare for the union meeting. Iva French, who was Respondent's hospital ad- nunistrator,5 also acknowledged that she knew that Savoy was very active for the Union from the very beginning of the campaign. 3. Buxton's remarks to Savoy in mid-July 1974 On July 3, 1974, the Union filed a petition for an elec- tion About mid-July, Savoy was called into the office of Di- rector of Nurses Buxton. There is a sharp dispute as to what was said at that meeting. Savoy testified to the follow- ing. Buxton told Savoy that she (Buxton) wanted to talk to her about the union activities that were going on among the LVN's in the Hospital; Buxton said that she wanted Savoy to stop organizing and to stop the union activities; Buxton said that if Savoy had to organize, Buxton wanted to encourage her to do so through the nursing association; Savoy replied that the nursing association was not strong enough to give them the representative they needed; and Buxton then said, "Juanita, I want you to know that you can get yourself into real hot water by doing this." Savoy also testified that she told Buxton that Buxton had broken the law; that Buxton replied that she had not and that she was caught in the middle; and that Savoy replied that she realized that Buxton had to say what she was told to say. Buxton, in her testimony, acknowledged part of the con- versation and denied other parts. Buxton testified to the following: Buxton called Savoy in to discuss a progress review and merit increase. Buxton complimented Savoy on her climb through the ranks as a nurse and on her good work. Buxton said that the LVN's were attempting to ob- tain professional status, such as that held by RN's, and that it might be better for Savoy to work through one of the professional associations, such as the California Nurses As- sociation, rather than an outside labor organization.' Bux- ton testified that she did not tell Savoy that she wanted to talk to Savoy about the union activity; that she did not tell 4 Caldwell had authority to issue written warning notices, to evaluate nurses in the operating room for promotions , and to authorize employees to go home early I find that she was a supervisor within the meaning of the Act 5 French was a supervisor within the meaning of the Act 6 In her initial testimony Buxton testified that she did not know whether the California Nurses Association was discussed and that she suggested that Savoy start activity with the California Licensed Vocational Nurses Associ- ation In that initial testimony Buxton averred that she suggested to Savoy that Savoy advance her professionalism through that organization or an organization like it After reviewing her affidavit, she recalled that she had suggested that Savoy work through one of the professional associations, such as the California Nurses Association , rather than an outside labor organization INDIO COMMUNITY HOSPITAL 131 Savoy that she wanted Savoy to stop organizing at the Hos- pital; that she did not tell Savoy that Savoy could get her- self in trouble; and that nothing was said about Buxton being in the middle. Buxton averred that she did recall something being said about her having broken the law. As between Buxton and Savoy, I credit Buxton. Buxton was no longer employed by Respondent at the time of the hearing. In April or May 1975, Respondent merged with another hospital and Buxton's position was eliminated. She now has an on-call teaching position at College of the Des- ert. It is possible, of course, that she has an interest in the proceeding in that she may desire a reference from Re- spondent at some future time, but she impressed me while she was on the stand as a witness who was not personally affected by the outcome of this proceeding and who was trying to relate the facts as accurately as she could remem- ber them. She did not hesitate to admit that she did try to encourage Savoy to become active in a nurses organiza- tion. Savoy's testimony, viewed as a whole, convinced me that she was not always candid. As set forth below, I be- lieve that her testimony concerning certain company-held meetings was exaggerated. In addition, also as is discussed below, I believe that her version of a postdischarge conver- sation with Buxton was not reliable. In sum, I find that Buxton called Savoy into the office of the director of nurses and told her that it might be better for her to work through one of the professional associa- tions such as the California Nurses Association, rather than an outside labor organization. I do not credit Savoy's testimony that Buxton told her that she (Savoy) could get herself into real hot water through her activity on behalf of the Union. Nor do I credit Savoy's other assertions that are contradicted by Buxton.' we don't generate earnings . . . if that happened, we'd soon be out of business. We've got four hospitals in this area-Desert Hospital in Palm Springs, Eisen- hower Memorial Hospital in Palm Desert, Valley Me- morial and us in Indio. If our doctors don't like the way we are handling things, they simply admit their patients elsewhere. Without patients, we can't cover our expenses, much less have the money to raise sala- ries and benefits that I personally have always pushed as hard as I know how, to get for our employees. * * * * * Many doctors believe patient care drops when a hospital becomes unionized. This has happened at one of our sister AMI hoppitals-Westminster Hospital in Orange County, California. One of the two unions trying to get into our hospital here has gotten into Westminster Hospital and patient care has dropped off. Many doctors don't like to put patients into hospi- tals that don't provide good patient care. And, with the competition we have from Eisenhower, Desert, and Valley hospitals, that becomes a very real concern to me. As you know, we don't have any control over what doctors do or don't do. Patients providejobs for all of us and if patient counts go down at our hospital, that means fewer jobs. After experimenting with unions for a year at Westminster Hospital, employees there have filed a petition to get the union out. The union not only hasn't done anything for the employees there, it has upset employees because patient care has fallen off. We'll tell you more about the union situa- tion at Westminster Hospital and the problems the union has created there in future meetings. 4. The company meetings with employees Respondent held three series of meetings with employ- ees. The first was on August 27, 1974. Savoy attended a meeting on that date which was conducted by Hospital Administrator French. About 10 or 12 employees were present at that meeting. Respondent's labor consultant, Fred Long, was also present. Before the meeting, French and Long had prepared a written presentation. French read it to the employees. During her presentation, French told the employees, in part, as follows: .. . We've got to worry about doing the best we know how to do for the employees of the hospital and that is a big responsibility. We've got to be able to get along with the doctors practicing in our area and that some- times leaves me with a migraine headache when I go home at night. Doctors and employees are both crit- ical ingredients to a hospital . . to make that hospital able to best serve our patients. What do I mean by this? Well, first of all, if we don't have doctors admitting patients to our hospital, 7 Savoy also testified that about 3 weeks before the election , which was held on September 27, 1974, she passed Buxton in the hall and Buxton said that she (Buxton) was concerned about the union activities because they were pitting friend against friend Buxton testified that she did not recall any such conversation I do not credit Savoy I think we have room for improvement in some ar- eas, but we've got to start making money before we can start making improvements. For example, there have been studies made over the past year and a half to implement a pension plan at this and other Amen- can Medicorp hospitals . We are all hopeful that such a plan will become effective the beginning of next year. However, there is more to getting such a plan than just saying "Let's put one in." The kind of plan our hospi- tals in the American Medicorp group are planning to have is non-contributory; that means the employees pay nothing ; the hospital pays all the cost. Such a plan would cost our hospital $60,000 a year on the basis of our best estimates. That means we've got to get our patient census up to be able to earn that $60,000 need- ed to pay for such a program. There is no way in the world we can have a pension plan like we have been planning on unless and until we have the money to pay for it. French went on to explain the benefits already provided by Respondent. She passed out a "bank book" which showed employee benefits . She told the employees: "So, now, NOT ONE, but TWO unions come along. They are a busi- ness, dust like any other business. They have one and only one objective in mind . . . and that is to start collecting 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD money from you." French then wrote on a blackboard fig- ures relating to union dues. She told the employees that unions can make all the promises in the world but they could not guarantee a thing. She also told them that the only thing a union could guarantee was that union dues would be deducted from the paycheck each month and she passed out some cards with a red dot with the explanation that union dues would be paid until they blew on the dot and it turned blue. She also passed out a "union guaran- tee" sheet which read: To show you union promises aren't worth a plugged nickel, have the union organizer sign these written guarantees: 1. I guarantee that employees of Indio Comunity Hospital will receive a wage increase of cents an hour if our union gets in. 2. I guarantee that employees will get a pension program in the very first contract we negotiate with the hospital. 3. I guarantee that the union will guarantee each employee's job at the hospital even if the patient cen- sus drops. 4. 1 guarantee that if the union gets in there will be no strikes at the hospital. 5. I guarantee that employees of the hospital will not be fired for cause. 6. I guarantee that the union will force the hospital to hire more employees. 7. I guarantee that doctors won't put patients at Palm Springs, Eisenhower and Valley Hospitals, if the union gets in at ICH. After each paragraph there was a blank for a union organizer's signature and a date. The "guarantee sheet" ended: I, , the union organizer guarantee the above items I have signed and give each employee the right to sue my union for breach of these guaran- tees, as the agent of my union. Union Organizer's Signature Date French told the employees, in substance, that the Union had promised them the things mentioned in the guarantee sheet and told them to see if the union organizer would sign it. The above findings are based on the credited testimony of French which was corroborated in large measure by Long and Margaret Hardy, an LVN currently employed by Respondent. Savoy testified that French told the employees that Re- spondent had been working on a pension program which would be paid for by Respondent and that if the Union got into the Hospital it was very likely that the employees would not get that pension program because the Union would negotiate its own contract and its own pension pro- gram. Savoy also averred that French told the employees that if Respondent operated at a profit and if the Union didn't get in, the employees would get the pension program that Respondent had been working on. Belle Terry, an RN who is currently working for Respondent and who testified on behalf of the General Counsel, averred that French said that a pension plan was being considered and that if things continued to go well at the Hospital that they would come up with a pension plan for the employees. French testified that the only thing she said about pensions was as is set forth in the findings above. Her testimony was corroborat- ed by Hardy and Long. I do not credit Savoy's testimony concerning the pension plan. Savoy testified that French told the employees if there was a strike that those employees would be replaced be- cause she had sick people to take care of. Savoy also testi- fied that French said the employees would strike. Terry, in her testimony, did not refer to any such remark by French. French, Long, and Hardy denied that any such remark was made. I do not credit Savoy with regard to this "strike" remark. Savoy testified that French told the employees that she had taken a poll of the doctors at Respondent and that it was their opinion that if the Union got into Respondent the quality of patient care would decrease and that it had decreased at other hospitals. Savoy also averred that French told the employees that if the Union got into the Hospital and the quality of patient care decreased, that doctors would be forced to take their patients elsewhere where they would receive quality patient care. Terry cor- roborated Savoy with regard to those remarks. Terry averred that French said that a survey had been taken among doctors who brought patients into the Hospital and that they felt if the Union was successful that there would be a decline in the quality of patient care so that they would probably take their patients to other hospitals. Har- dy, Long, and French denied that there was any reference to polls. I credit French's testimony, the details of which are set forth in the findings above. She had carefully pre- pared her presentation in writing with the help of Long and I believe that her recollection of what was said was more accurate than Terry's. I do not credit Savoy. It is noted that French was not employed by Respondent at the time of the hearing In April or May 1975, American Medicorp, which owned Respondent, sold the Hospital to a group of physicians that owned Valley Memorial Hospital. At that time she remained in Respondent's employ as assistant ad- nunistrator. Later while she was on leave of absence she was laid off Savoy testified that at later meetings French made re- marks about union stewards and union fines. There is no corroboration for Savoy's testimony in that regard. The substance of that testimony was denied by French and Long. I do not credit Savoy where her testimony differed from that of French and Long concerning what occurred at the meetings I do credit the testimony of French and Long that Savoy spoke in favor of the Union for about 5 minutes during the second meeting. 5. The election, Caldwell's remark about the objections, Savoy's warning notice, and the settlement conference On September 27, 1974, agents of the Board held an election in two separate bargaining units of Respondent's employees. A majority of the employees in each unit voted INDIO COMMUNITY HOSPITAL 133 against representation by the Union.8 Thereafter the Union filed objections to the election. Sometime in November 1974, Savoy told OR Supervisor Caldwell that someone had called from the Board asking for Belle Terry's home address Caldwell asked which board, and Savoy replied that there was some kind of suit being brought against the Hospital with regard to the elec- tion . Caldwell said that it seemed silly to her that the Union would bring some kind of suit against the Hospital because the Hospital won so overwhelmingly.9 For some time before October 18, 1974 Caldwell had been receiving reports that Savoy was having difficulty get- ting along with other employees in the OR. On March 12, 1974, Caldwell received a report on that matter from Savoy herself. On that date Savoy wrote a note to Caldwell which began: "This is not a letter of resignation. I just plain quit. reasons: 1. Personality conflict! (I cannot now nor will I ever be able to work with Mrs. Metzger 8 hours a day 5 days a week plus overtime.) . ..." Thereafter there were complaints about Savoy from employees Wilson, Metzger, and Parker. During the summer of 1974 Terry complained to Buxton about tension in the OR On October 18, 1974, a written warning was given to Savoy which was signed by Buxton and Caldwell. She had never received a written warning before. The warning mentioned personality con- flicts with other employees in the OR However, on No- vember 17, 1974, Savoy was granted another increase in pay. The original complaint in Case 21-CA-?2970 (which al- leged that Respondent threatened employees with dis- charge if they supported the Union and also threatened employees at the August 27, 1974, meeting) was consolidat- ed with the Union's objections to the election and the en- tire matter was scheduled to be heard before an Adminis- trative Law Judge on January 8, 1975. At the hearing, the unfair labor practice case was settled and the representa- tion case was severed and remanded to the Regional Direc- tor with the understanding that the Union was tendering a withdrawal of the objections in the representation case. By order dated January 16, 1975, the Regional Director ap- proved the Union's request to withdraw the objections and certified the results of the election.10 Savoy appeared at the hearing on January 8, 1975, on behalf of the Union. Long, French, and Buxton were also present. Savoy participated 8 The first unit included all employees except doctors , registered nurses, guards , and supervisors Of the 121 eligible voters , I cast a void ballot, 20 voted for the Union, 2 voted for Service Employees International Union, Local 102, AFL-CIO, and 78 voted against the participating labor organiza- tions In addition there were eight challenged ballots The second unit con- sisted of registered nurses and excluded professional employees , guards, and supervisors Of 31 eligible employees, 20 voted against the participating labor organizations, and there were 8 challenged ballots No votes were counted for the Union The election was based on a stipulation for consent election agreement 9 These findings are based on the credited testimony of Caldwell Cald- well resigned as OR supervisor when the hospital was purchased by the other hospital and she accepted a job as RN A month later she resigned from that and left Respondent 's employ She was not working for Respon- dent at the time of the hearing Savoy 's testimony with regard to the inci- dent was similar to that of Caldwell To the extent it differed I credit Cald- well 10 The representation case has not been reconsolidated with the instant unfair labor practice case in the settlement discussions on behalf of the Union. At the time she was on leave of absence, a status that she had been in since December 2, 1974. 6. Savoy's leave of absence, the layoff, the fob offer, and the discharge On December 2, 1974, Savoy underwent an operation at Respondent's Hospital for the removal of a possibly can- cerous growth on an ovary. Though the growth was non- malignant Savoy underwent a hysterectomy. She was in the Hospital for 14 days but there were postoperative infection complications for which she received treatment at home and at her doctor's office. On the day of the operation she went on leave of absence status. Respondent 's written em- ployee manual relating to leave of absence provides in part: "An approved leave other than military or fury duty does not guarantee that your position or an identical posi- tion, or any position, will be held open." Savoy's doctor did not certify that she had recovered sufficiently to be able to return to work until February 13, 1975. After she went on leave of absence on December 2, 1974, Savoy never called Respondent with information concerning when she expect- ed to return to work. At one point while Savoy was out on leave of absence one of the nurses called her to see how she was getting on. Caldwell got on the phone and spoke to her. Caldwell asked when Savoy thought she would be going back to work and Savoy replied that she was not sure, that she had an appointment with her doctor, and that the doctor should let her know. Savoy did not call Caldwell back. On January 20, 1975, while Savoy was still on leave of absence, Buxton wrote to her as follows: I regret to inform you, that due to our recent acute shortage of personnel in the Surgery Department and the heavy case load in that area over the holidays, I have had to restaff positions there. Due to the foregoing conditions, you are laid off as of Monday, January 20, 1975. Enclosed is two weeks pay in lieu of notice. On January 29, 1975, the Union filed the charge in Case 21-CA-13350 alleging that Savoy was unlawfully laid off. In February 1975, one of the LVN's working on the hos- pital floor gave notice that she would be leaving. Buxton told a Mrs. DeCuir of Respondent's payroll department to call Savoy and tell her of the opening. On February 27, 1975, DeCuir called Savoy and told her that there was an opening on the 11 p.m. to 7 a.m shift with three nights' work on general floor duty and two night's relief work in the intensive care unit. Savoy said that she would take it and DeCuir reported back to Buxton that Savoy had ac- cepted the position. On March 6, 1975, Savoy called Bux- ton regarding the schedule. Buxton told her the schedule and reminded her to bring in an updated license and her doctor's permission to return to work. On March 7, 1975, Savoy called DeCuir and said that she would only accept the position of LVN in the OR. Savoy testified that she considered surgery to be one of the preferred places to work. While working in the OR her hours were 7 a.m. to 3:30 p.m with a substantial amount of overtime and "call 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay." While working in OR she received $10 a day "call pay" for being available to work after the hours that were normally worked. In a 14-day period she was generally on call for 5 to 7 days. No "call pay" was paid for general floor work or intensive care work. However, if she had taken the night-shift position that was offered to her she would have received a night-shift premium of 10 percent. In addition LVN's in the intensive care unit work a good deal of overtime. On March 7, 1975, Hospital Administrator French wrote to Savoy unconditionally offering her recall from layoff status to fill a position as LVN to replace an LVN who was leaving the Hospital effective March 10, 1975. The letter mentioned the previous conversations with Savoy and told her that she was expected to return to work within 10 days after receipt of the letter or her employment would be ter- minated . The letter went on to say: We have only one (1) LVN classification at this hospi- tal. Upon your return to work here, your rate of pay will be the same as you were being paid while in the Operating Room. Your benefits remain the same and all other aspects of employment remain the same as before. This opening we are offering is the only open- ing we have for an LVN at the present time to which we can recall you. There is no logical reason, therefor, for you to reject this unconditional offer of reinstate- ment from layoff. We have continued your employ- ment layoff status since our letter to you dated Janu- ary 20, 1975. We wrote that letter so that you could collect unemployment compensation. Unless we hear from you within ten days after receipt of this Certified, Return Receipt Requested, letter, your employment at Indio Community Hospital will be terminated for re- fusal to return to work from layoff, and the State Un- employment Compensation Board will be so notified. Savoy did not reply to the letter and on March 19, 1975, she was terminated by Respondent. On or about May 1, 1975, Buxton's employment was terminated . Sometime thereafter Buxton met Savoy in the state unemployment office. Savoy testified that they had a conversation in which Buxton told her that it was just as well that she (Savoy) couldn't take Respondent's reinstate- ment offer "because that was a set up." Savoy also testified that Buxton told her that it was just between Savoy, herself and the gate post and that if Savoy repeated it, she (Bux- ton) would call Savoy a liar. Buxton, in her testimony, de- nied making any such remarks. I believe Buxton to be a candid, credible witness and I have serious reservations concerning Savoy's veracity. I credit Buxton's denial. 7. The circumstances surrounding Savoy's layoff Immediately prior to Savoy's leave of absence on De- cember 2, 1974, there was a staff of seven in the OR. They were RN and OR Supervisor Caldwell, RN's Terry and Parker, LVN scrub nurses Savoy, Wilson, and Metzger, and housekeeper Duran. Savoy underwent her operation on December 2, 1974, and she was not released by her doctor to return to work until February 13, 1975. On De- formed Caldwell that she would be out of work for 4 to 6 weeks. About January 1, 1975, Wilson called Caldwell and told her that it would be another 3 or 4 weeks before she came back She called again on or about January 14 and said that she was coming back. She began work again on January 20, 1975. About December 2, 1974, housekeeper Duran ii suffered an accident involving a broken bone for which hospitalization was required. Duran came back to work between January 10 and 20, 1975. About mid-De- cember 1974 Caldwell was notified of a death in her fam- ily. She was on emergency leave from the OR for about 3 weeks from mid-December 1974 through early January 1975. During that time Terry was acting OR supervisor. In December 1974 the OR was very busy and was under- staffed because of the various absences mentioned above. While Caldwell was on emergency leave and Terry was acting OR supervisor, Terry repeatedly requested Buxton to find additional help. On December 16, 1974, Maria Al- onzo was assigned part time to assist in the OR. She had been an LVN working as a floating nurse who was as- signed where she was needed in the Hospital Prior to De- cember 16, 1974, Alonzo had no experience as a scrub nurse and on that date they began to train her. At first she worked 2 or 3 days a week and later she was put on full time Terry credibly testified that at the time of Savoy's layoff Alonzo was still not fully trained and was not as qualified as Savoy. Terry also credibly testified that Savoy was a very good scrubber. Also in December 1974, LVN's from general floor care were sometimes assigned to the OR to help in the recovery room. When Caldwell returned from her emergency leave in early January 1974, the OR was still understaffed and she also requested additional help from Buxton. On January 13, 1975, Robert Watts was assigned to the OR as an OR technician. An OR technician cannot administer medication but he can scrub and put away instruments. Watts had been working as a relief em- ployee in the laboratory on weekends During the first part of January he applied for a job in the OR. He had had 6 months' formal training from the College of the Desert as a surgical technician and he requested a transfer to a full- time position as surgical technician. He began work in the OR on January 13, 1975. Terry credibly testified that Watts did not grasp his duties quickly and that his perfor- mance was not as good as Savoy's. Every other week, when a payroll came out, Hospital Administrator French reviewed the payroll records, the pa- tient census, and other data that would indicate what staff- ing was necessary throughout the Hospital. She had out- standing instructions from her supervisor, Kenneth Hahn, who was the group director of American Medicorp, to fol- low certain guidelines relating to staffing based on patient census. When layoffs were required under those guidelines it was her practice to call in the department head who was in charge of the overstaffed department and explain the need for a cutback. The practice was to lay off employees first who were on leave of absence and then employees with least seniority. As noted above Respondent's employ- ee manual provided that people on leave of absence would cember I or 2, 1974, Wilson broke her hip and she in- 11 The housekeeper 's function was to keep the OR clean INDIO COMMUNITY HOSPITAL not be guaranteed their jobs back. Laid-off employees were, however, eligible for immediate recall when more employees were needed . It was not uncommon for employ- ees on leave of absence to be laid off.12 Indeed French herself, after Respondent merged with another hospital and after she was demoted to assistant administrator, went on leave of absence and while she was on such leave she was laid off. On January 15 or 16, 1975, French met with Buxton and they reviewed the records that showed the number of full- time employees (called full-time equivalents), the hours worked and costs on the OR. At that time there were nine full-time employees listed as staffing the OR , including those on leave of absence. Caldwell had returned, Terry and Parker were still working, Wilson was scheduled to return within a matter of days, Metzger was still working, Duran had either returned or was shortly about to return, and Watts and Alonzo were working Savoy was still on leave of absence and Respondent didn't know when she would return. Employees on leave of absence status did not receive pay and were not guaranteed their jobs back, so it would ap- pear that Respondent would have little to gain by laying them off before they asked to return to work. However, Buxton credibly testified that employees on leave of ab- sence status were counted in determining staffing quotas and when the quotas were overfilled the employees on leave of absence were laid off. Respondent's past practices appear to be consistent with that testimony. On January 15 or 16, 1975, when French met with Bux- ton to review staffing requirements, there were nine full- time employees listed in the OR including those on leave of absence, and the guideline that French was required to follow allowed only seven full-time employees in the OR. In addition, at that time the work in the OR had dropped. French told Buxton that she was overstaffed in the OR and that some action should be taken immediately. Buxton spoke about the matter to OR Supervisor Caldwell and told her that French had said that they could not have more than seven or eight people in the OR. Buxton said they would have to lay someone off. Caldwell told Buxton that Alonzo was progressing very well and there was much less personality tension in the OR with Alonzo rather than Savoy. They agreed that Savoy would be laid off. At that time Buxton did not know when Savoy could return. Bux- ton credibly testified that one of the things that she consid- ered was that if Savoy was laid off she (Savoy) would be able to collect unemployment insurance. Savoy was laid off on January 20, 1975. Later Buxton reported back to French and told her that Savoy had been laid off. 12 Pharmacist Joe Jarried had become very ill and went on leave of ab- sence He was not released to work by his doctor and subsequently he was laid off and then terminated Vada Tatum had a serious eye injury and also had not been released by her doctor to go back to work She went on leave of absence and subsequently her position was eliminated and she was laid off Lois Snodgrass , who is a registered nurse, was laid off while she was on leave of absence for sickness The record does not indicate when those layoffs from leave of absence status occurred other than that they were in 1973, 1974, or 1975 RN Ruth Judd went on leave of absence in the spring of 1974 While on leave of absence she was laid off In October 1973 nurses aide Minnie Harris went on leave of absence and while she was on such leave her position was eliminated and she was laid off B. Analysis and Conclusions 1. The layoff of Savoy 135 Savoy was extremely active on behalf of the Union. She contacted the Union, circulated showing of interest cards for the Union , openly talked with employees regarding the benefits of unionization , organized an in -plant union com- mittee, held union meetings at her home , spoke in favor of the Union at a meeting held by Respondent, and spoke on behalf of the Union at the settlement conference on Janu- ary 8, 1975 Respondent admittedly knew of her union ac- tivity. Respondent harbored an animus against the Union. That animus was expressed in mid-July 1974, when Direc- tor of Nurses Buxton called Savoy into her (Buxton's) of- fice and told Savoy that it might be better for Savoy to work through one of the professional associations such as the California Nurses Association, rather than an outside labor organization . The animus was much more dramati- cally expressed by Hospital Administrator French in her meeting with employees on August 27, 1974. French told the employees in only slightly veiled terms that their fobs depended on their remaining nonunion. She pointed out that doctors admit patients to hospitals; if doctors did not admit patients to Respondent it would soon be out of busi- ness; many doctors believed patient care drops when a hospital becomes unionized , many doctors don't like to put patients into hospitals that don't provide good patient care, there were competing hospitals to which doctors could refer patients, Respondent didn't have any control over what doctors did or didn't do; and patient care pro- vided jobs and if patient count dropped at Respondent it meant fewer jobs. French emphasized her point by request- ing the employees to ask the Union to sign a guarantee that doctors would not put patients at competing hospitals if the Union got in at Respondent. French pointed out to the employees that if doctors didn't like the way Respondent handled things they simply would admit their patients else- where and that without patients Respondent couldn't cover expenses much less have money to raise salaries and bene- fits. She told them that Respondent had been having stud- ies made for over a year and a half to implement a pension plan and that they were all hopeful that such a plan would become effective the beginning of the next year. She also told them that there was no way in the world that they could have a pension plan like the one they were planning unless and until they had money to pay for it. The message to employees was clear-if there was a union there would be less referrals from doctors, less income , and no pension plan This also was reinforced by French's request that the employees ask the Union to guarantee that the employees would get a pension program in the very first year it negoti- ated with the Hospital. French's remarks to the employees, which are set forth in detail in the findings above, establish that Respondent was violently hostile toward the Union. Respondent laid Savoy off on January 20, 1975, which was only 12 days after she had manifested her continued support of the Union by participating in the settlement 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussions on behalf of the Union at the January 8, 1975, hearing. t 3 Respondent's contention that it had to lay off Savoy be- cause it was overstaffed in the OR raises some questions. While Savoy was on leave of absence she was in a nonpay status and she did not have any right to return. From a business point of view Respondent had nothing to lose by waiting until Savoy asked to return and then deciding whether there was an opening or not . However Buxton's credited testimony and Respondent's past practices estab- lish that Respondent did lay off employees when they were on leave of absence status. Indeed French, when she was assistant hospital administrator, was laid off while she was on leave of absence status. Respondent counted employees who were on leave of absence in determining the number of employees who were staffing a department. The credited evidence establishes that in mid -January 1975 the OR was staffed with nine employees and the quota for the OR was seven employees. Respondent laid off Savoy while keeping in its employ in the OR two less experienced employees, Alonzo and Watts. However, on January 20, 1975, at the time Savoy was laid off, Respondent did not know when Savoy would be able to return. In addition Buxton had been told that Alonzo was progressing very well and there was much less person- ality tension in the OR with Alonzo rather than Savoy. Though Respondent, as shown by its conduct, was most anxious to prevent unionization, Savoy's layoff on January 20, 1975, could have contributed little toward that goal. The Union had lost the election on September 27, 1974. While objections were outstanding there was the possibility of a new election. However, on January 8 and 9, 1975, the outstanding unfair labor practices were settled and on Jan- uary 16, 1975, the objections to the election were with- drawn and the results of the election were certified. At that point it appears that the Union was out of the picture. By laying off Savoy, who was the Union's chief spokesman, Respondent took the chance of reactivating union activity through the renewal of unfair labor practice charges. If it left her on leave of absence status that risk was minimized. Respondent's labor relations consultant Long impressed me when he testified as an extremely pragmatic man. His orchestration of the antiunion campaign indicated that he was very anxious to keep the Union out of Respondent's premises. The layoff of Savoy would not, under the circum- stances here, have helped him in that aim. On February 27, 1975, Respondent offered Savoy an op- portunity to return to the Hospital as LVN on the night 13 It is also noted that the only written warning that Savoy received, which related to personality conflicts in the OR , was given about the same time that OR Supervisor Caldwell told her that she thought it was silly of the Union to file a suit over the election Though the timing of the warning does raise some question , it is clear that Savoy did have difficulties in get- ting along with other employees in the OR Savoy had gone as far as to quit because of such personality conflicts and a number of employees had com- plained about Savoy If Caldwell was hostile to the Union that hostility was not even sufficient to keep her from allowing Savoy to leave work early in order to prepare for a union meeting In addition Savoy received a pay raise not long after the warning Taking all these matters into consideration I do not believe that a finding is warranted that the warning was related to Savoy's union activity shift with three nights' work on general floor duty and two nights' relief work in the intensive care unit. The charge alleging that Savoy was unlawfully terminated was filed on January 29, 1975, and it is possible that Respondent was merely trying to cut its potential backpay liability. Howev- er, the fact that the offer was made does indicate that Re- spondent was willing to have Savoy back at the Hospital. There is no credible testimony that Respondent was trying to "set up" Savoy or to give her an offer that she would refuse. Respondent had no way of knowing that Savoy would refuse the offer. In fact, Savoy initially accepted the offer on February 27, 1975, and only notified Respondent of her change of mind on March 7, 1975. Once Savoy was back in the Hospital she could have been equally an advo- cate of the Union whether she was working in the OR or in other areas of the Hospital . Respondent had nothing to gain by keeping her out of the OR if it believed she was needed there. Caldwell, Buxton, and French were the three supervisors who were involved in the decision to lay off Savoy. They all testified that they knew about her union activity and that the union activity had nothing to do with her layoff. At the time they gave their testimony none of them were employed by Respondent. French had been laid off while she was on leave of absence. Buxton's job had been elimi- nated after the merger. Caldwell gave up her supervisory position and then left Respondent's employ. All of them had some reason to feel hostility toward Respondent Con- sidering all of the circumstances described above, and after listening to them testify, I believe that they were telling the truth. Some of the evidence described above raises strong sus- picions with regard to Respondent's motivation in laying off Savoy . However, suspicions are not enough to establish the General Counsel's case and I believe that, viewing the evidence as a whole, the General Counsel has not estab- lished by a preponderance of the credible evidence that Respondent laid off or discharged Savoy because of her activities on behalf of the Union . I shall therefore recom- mend the dismissal of those portions of the complaint that allege that Respondent laid off or discharged Savoy in vio- lation of Section 8(a)(3) of the Act 2. Respondent's conduct prior to the settlement agreement On January 8 and 9, 1975, all the parties entered into an informal settlement agreement which provided that Re- spondent would not threaten employees with discharge or other reprisals because of their union activity and would not in any like or related manner interfere with Section 7 rights. The settlement agreement provided that appropriate notices were to be posted . The settlement agreement fur- ther provided that. "Contingent upon compliance with the terms and provisions hereof , no further action shall be tak- en in the above case." The General Counsel contends that the settlement agreement was properly set aside because Respondent violated the terms of that agreement by un- lawfully discharging Savoy. Except for matters related to the discharge of Savoy, the complaint does not allege nor does the General Counsel contend that Respondent com- INDIO COMMUNITY HOSPITAL 137 nutted any postsettlement violations of the Act or other- wise violated that agreement. Respondent's presettlement conduct was fully litigated and I have considered that conduct as background in eval- uating Respondent's motive or object in discharging Savoy. As the Board held in Northern California District Council of Hodcarriers and Common Laborers of America, AFL-CIO (Joseph's Landscaping Service), 154 NLRB 1384 (1965), enfd. 389 F.2d 721 (C.A. 9, 1968), presettlement conduct may be used as background evidence to establish the move or object of a Respondent's postsettlement activities.14 Respondent's presettlement conduct was of such a nature as to establish that Respondent was extremely hostile to- ward the union. That evidence of animus was fully consid- ered in evaluating whether or not Savoy's termination was casually related to her union activity. However, for the rea- sons set forth above I have found that Savoy was not laid off because of her union activity and that the layoff did not violate the Act. The General Counsel has not established by a preponderance of the credible evidence that Respon- dent engaged in any postsettlement violations of the Act or any breach of the settlement agreement. In Henry I Siegel Co., Inc., 143 NLRB 386, enfd. 328 F.2d 25 (C.A. 2, 1964), the Board held: "The Board will honor a settlement agreement and will not set it aside un- less there is a breach of the agreement or a subsequent independent violation of the Act by the parties to the agreement." In United Dairy Co, 146 NLRB 187 (1964), the Board reinstated a settlement agreement and dismissed a complaint after referring to the Board's general rule: "not to go behind a settlement agreement unless the Respondent has failed to comply with it or has since engaged in inde- pendent unfair labor practices." 14 See also Cloverleaf Cold Storage Co, 160 NLRB 1484 (1966) In sum, I find that the General Counsel has not estab- lished by a preponderance of the credible evidence that Respondent has failed to comply with the settlement agree- ment or that Respondent has since engaged in independent unfair labor practices. I shall therefore recommend that the settlement agreement approved on January 9, 1975, be re- instated and the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning 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 did not violate Section 8(a)(3) and (1) of the Act by laying off or discharging Savoy. 4. The parties hereto entered into a settlement agree- ment which was approved on January 9, 1975, and Re- spondent has not failed to comply with it and has not en- gaged in any postsettlement unfair labor practices. 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: ORDER 15 The settlement agreement approved on January 9, 1975, is reinstated and the complaint is dismissed in its entirety. 15 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 10248 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