Ohio Masonic Home

OHIO MASONIC HOME 509 Ohio Masonic Home and National Union of Hospital and Nursing Home Employees , Local 1199H, an af- filiate of Retail, Wholesale and Department Store Union, AFL-CIO. Case 9-CA-9305 June 30, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On February 25, 1975, Administrative Law Judge Russell M. King, Jr., issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party filed exceptions and supporting briefs, and the Respondent 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 only to the extent consistent herewith. The Administrative Law Judge dismissed the com- plaint, which alleged several instances of interference with the employees' right to wear union buttons, for two reasons: First, the conduct complained of was prohibited by a previous Board order and therefore any order that might issue here would be "duplici- tous," and second, the record showed that the allega- tions lacked merit. As to the first ground for dismissal, the Adminis- trative Law Judge essentially decided that any order that might issue as a result of the allegations com- plained of herein would only duplicate the existing Board order. While the Board has previously ordered the Respondent to cease and desist from promulgat- ing and enforcing a rule prohibiting employees from wearing union insignia while at work,' we find the conduct alleged here as unlawful to be of a different nature from that previously considered. Thus, here, the charges involve instances of alleged coercive speech or interrogation. The previous order, howev- er, dealt with an unlawful rule that Respondent had promulgated and enforced. We therefore find that any order herein would not be duplicative of our prior order.2 As to the merits of the complaint, we find that certain of the allegations contained therein are sup- ported by the record. i The Ohio Masonic Home, 205 NLRB 357 (1973), enfd . 511 F 2d 527 (CA 5, 1975) 2 Compare Quaker Tool & Die, Inc, 169 NLRB 1148 (1968) First, contrary to the Administrative Law Judge, we find that Bruster's speeches of April 8 and 9, 1975, violated Section 8(a)(1). The record shows that the Home's employees had refrained from wearing union buttons for approximately 2 years prior to April 8.3 According to Sandra Holton, a supervisor, the majority of the employees assigned to the 3-11 shift of April 8 reported to work wearing union but- tons. Bruster, the administrator of the Home, appar- ently called a meeting of all that shift's employees before the shift ended. Mass meetings were also held for each of the subsequent two shifts. At each of the three meetings, Bruster began by acknowledging that the employees had a right to wear union buttons. However, according to the record, Bruster continued by telling the employees that the wearing of the but- tons around the patient area upset the residents. Next, Bruster testified, "I asked each of them to look at his own conscience, his or her conscience, and hopefully, they would not wear the buttons where the residents would see them." The impact that these speeches were likely to have seems clear. The employees would have quickly rec- ognized that Respondent had felt compelled to con- front them about the buttons almost immediately. The series of mass meetings that followed certainly must have conveyed a sense of urgency about the situation; i.e., Respondent was dealing with this as a crisis. For this reason, we cannot view Bruster's speeches as only reasoned appeals to conscience. De- spite his initial remarks regarding the employees' right to wear union buttons, Bruster's subsequent ad- monishment that union buttons should not be worn seems likely to have led some employees to believe that some risk was involved for any employees who chose thereafter to wear a union button. For this rea- son, we find these speeches carried with them an im- plied threat and therefore violated Section 8(a)(1).4 Contrary to the Administrative Law Judge, we also find that Supervisor Cowgill's remarks to Connie Miller, a housekeeper, violated Section 8(a)(1). Miller testified that she was wearing her union button at work a day or two after Bruster's speech when Cow- gill and another supervisor approached her and 3 The Sixth Circuit opinion, enforcing the prior Board order, issued Feb- ruary 25, 1975 In the earlier case, Respondent had argued that because the wearing of union buttons would have a tendency to worry and upset the residents of the Home, special circumstances existed to justify a rule against the wearing of union buttons while at work We rejected that argument and found that the rule was unlawful (205 NLRB 357 ) At the hearing herein , Respondent made an offer of proof that Bruster would have testified that since the Board's earlier decision many of the Home's residents had expressed fears about a strike , and that these fears had intensified when the employees started to wear union buttons This proffered testimony only goes to the argument Respondent raised as a defense to the 8(a)(1) allegations involving the rule against wearing union buttons, and we see no reason to reconsider our earlier decision regarding that rule 225 NLRB No. 67 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked her if she knew the rules of the Home. Accord- ing to Miller, she answered that she did know the rules, and Cowgill replied by asking her why she was not therefore going to remove her union button. Miller stated that she refused to do so. We believe that Cowgill's remarks constitute an implied threat. Her question about whether Miller knew the rules of the Home would have suggested to Miller that the latter had actually violated an existing rule by wearing a union button and that she might, as a result, be disciplined for her infraction. For this reason, we find that Cowgill's remarks would have tended to have a coercive effect and, for this reason, are violative of Section 8(a)(1). We also find that the record supports the complaint's charge involving the alleged threat against Connie Cole. Cole, a cook, testified that with- in 2 days after Bruster's speeches, Ruth Landon, di- rector of nutritional services, spoke to her about wearing a union button. According to Cole, Landon said that she felt the buttons upset the residents and hoped that Cole would "think twice" about continu- ing to wear a union button.' Contrary to the Admin- istrative Law Judge, we believe Landon's "think twice" remark, especially when considered against the background of Bruster's speeches, also constitut- ed a threat and violated Section 8(a)(1). Finally, we also find that June Hankie's testimony established a prima facie case of an 8(a)(1) violation. Her testimony indicates that she was frequently ha- rassed for wearing her union button by being moved unnecessarily to different floors of the Home. We find that Respondent's records did not accurately re- flect the number of times Hankie was moved and therefore did not rebut her testimony that she was moved several times unnecessarily. We further note Bruster's testimony cannot be read to offer any justi- fication for the moves that these records did not re- flect. We therefore find Respondent violated Section 8(a)(1) by harassing Hankie when she wore her union button.' 5 Respondent's lawyer conceded that Landon's testimony regarding what was said during this conversation corroborated Cole's 6 Coram Miracle testified that during a conversation that occurred March 17, 1975, Bruster told him that employees could not wear any buttons while at work Bruster denied saying this Kenneth Moury testified that around April 12, 1975, Bruster angrily admonished him not to wear a union button Bruster testified that just prior to his conversation with Moury, an elderly female resident of the Home had made a sarcastic remark about Moury's union button and that he merely pointed out to Moury that his union but- ton had upset the resident Moury denied hearing the woman's remark, while Bruster stated that she had spoken loudly enough for Moury to heai her The complaint alleges that Bruster's remarks to both Miracle and Moury violated Sec 8(a)(1) If Bruster were credited, these remarks would appear not to be coercive Thus, as the credibility issues central to both these allegations are unresolved , and as any findings in these matters would, in any event, be cumulative , we find it unnecessary to make any findings on them Amended Conclusions of Law Delete the Administrative Law Judge's Conclu- sions of Law 2 and 3 and substitute the following: "2. By admonishing employees, individually and as a group, not to wear union buttons, and by harass- ing employees for wearing union buttons, the Re- spondent violated Section 8(a)(1) of the Act. "3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act." THE REMEDY Having found that Respondent engaged in certain unfair labor practices in violation of Section 8(a)(l) of the Act, we shall order Respondent to cease and desist therefrom and take certain action designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Ohio Masonic Home, Springfield, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with its employees' right to wear union buttons at work. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its offices at or near Springfield, Ohio, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX OHIO MASONIC HOME 511 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board, after a hearing in which all parties were permitted to introduce evi- dence, has found that we have violated the National Labor Relations Act and has ordered us to post this notice. WE WILL NOT interfere with our employees' right to wear union buttons while at work. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights protected by the Nation- al Labor Relations Act. OHIO MASONIC HOME DECISION STATEMENT OF THE CASE RUSSELL M. KING, JR., Administrative Law Judge: This case was heard at Springfield, Ohio, on October 27, 1975.' The charge was filed by the Union on April 23 and the complaint was issued on June 25. The sole issue involved is whether or not the Home, the Respondent, violated Sec- tion 8(a)(1) of the National Labor Relations Act, in effect by requesting that employees refrain from wearing union buttons while around patients or residents. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Home, I make the following: FINDINGS OF FACT I. JURISDICTION The Home, an Ohio corporation, operates a nonprofit nursing and convalescent home at Springfield, Ohio, where it annually has gross revenues in excess of $100,000 and purchases goods valued in excess of $50,000 from suppliers who purchased those goods directly from manufacturers located outside the State of Ohio. The Home admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I further find, as admitted, that the Charging Party, the Union, has been and is a labor organization as defined in Section 2(5) of the Act. 1 All dates are in 1975 unless otherwise stated II. THE ALLEGED UNFAIR LABOR PRACTICES A. Nature and General Structure of the Home The Home is controlled by the Masonic Lodge of the State of Ohio and its general policies are formulated by a nonsalaried board of trustees. It consists primarily of a rest home, which houses approximately 170 residents, and an adjacent 330-bed structure referred to as Rickly Hospital. A new 76-bed facility has also just been opened. The Rick- ly facility is a two-winged six-floor structure. Virtually all its patients are bedridden or mentally incapable of caring for their needs. It has no full-time medical staff per se, but has entered into an agreement with three local physicians to provide such medical advice and treatment as required by its patients. There is no internal or major surgery per- formed at Rickly. If a patient needs surgery, he is transfer- red to a local hospital. A patient is also removed to a local hospital if he becomes seriously ill. Once an individual is assigned to the Rickly facility, it is normally for life. If a resident should go on vacation, or if he is transferred to a hospital, his room at Rickly remains vacant in anticipation of his return. The average resident age at the Home is 81. The Home has approximately 400 full-time employees. The bargaining unit represented by Local 1199H (the Union) consists of approximately 300 dietary, housekeeping, and nursing department employees. B. Union Organizational History and Prior Insignia Problems In early 1972 the Union commenced a campaign to or- ganize the Home's service and maintenance employees. The administrator of the Home at that time ( as now) was Keith Bruster . During the campaign and in April 1972, the Home promulgated a rule prohibiting the wearing of union buttons. This action (along with other actions not relevant here) resulted in the issuance of a complaint and subse- quent hearing in Springfield, Ohio, on September 5, 1972. In his thorough and thoughtful decision Administrative Law Judge Maurice S. Bush concluded that the Home's rule was promulgated out of a sincere desire to protect the endangered tranquility and health of the Home' s residents or patients, thus creating "special circumstances" making the prohibition lawful. The Board disagreed (205 NLRB 357) and ordered the Home to cease and desist from "Pro- mulgating and enforcing a rule prohibiting employees from wearing union insignia while at work. . . . [or] In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act." The Board's order was subsequently enforced by the Sixth Circuit on February 25, 1975 (511 F.2d 527). Prior thereto the Union had been successful in its organizational campaign and after an approximate 30- day strike commencing on March 20, 1973, a contract was entered into, effective April 19, 1973. That contract is still in effect. C. Recent Insignia Events Upon learning of the Sixth Circuit's decision, Adminis- 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trator Bruster lifted the union button prohibition but the subject was not dropped . He went before his employees, acknowledged his loss and their right to wear union but- tons, but further announced his continued wish and desire that they not be worn around patients or residents. Mr. Coram Miracle had been a part -time employee of the Home in 1972 and was discharged by Bruster on July 17, 1972, for refusing to comply with the Home's then ex- isting union button prohibition . He was reinstated as a re- sult of the 1973 litigation ending in the Sixth Circuit's en- forcement order of February 25. As a result of that reinstatement, Miracle reported to the Home and Adminis- trator Bruster on March 17 to resume his employment. Miracle testified that Bruster told him , upon reporting, that "we couldn't wear [any] buttons or jackets with writing .. . [a]nywhere on the job." Although Miracle was "quite sure that he [Bruster] said Union buttons ," he added "but it's been so long that I've forgot ." Bruster, in testimony, denied any mention of buttons to Miracle and character- ized the meeting as "friendly." Miracle also acknowledged that at the meeting Bruster apologized, admitting that he had been wrong in the earlier discharge . Mrs. Ruth Lan- don, the director of Nutritional Services at the Home, was present during part of the March 17 conversation between Miracle and Bruster and testified that she "[did] not recall" whether or not the topic of union insignia was brought up. Miracle accepted reinstatement to a part -time job as a "porter" on the 3-7 p.m. shift, 5 days per week . He worked 2 hours of that 4-hour shift on March 17 and thereafter quit . His reasons for quitting are material to this case only insofar as they may affect his credibility . Miracle testified that he quit because of "harassment ," explaining that dur- ing his 2 hours of employment he was called upon to do numerous and unpleasant tasks. At that time Miracle was also employed full time at Frigidaire on the 4 p.m. to mid- night shift and admitted that he couldn't hold both jobs. His explanation for initially accepting the 3-7 job at the Home was that he thought there may have been a chance to rearrange his hours at Frigidaire but that by virtue of the alleged requirement of actually commencing work on March 17 he was unable to attempt such arrangements. Kenneth L . Moury, a former employee who had worked at the Home as an orderly for over a year , testified that he attended an employees' meeting on April 8 when Adminis- trator Bruster stated that "the court order ... [allowed us] ... to wear our union buttons, but that he [Bruster] wished that we wouldn't wear them . . . [to avoid] upset- ting the residents." Moury further testified that on April 12 he was confronted by Bruster who again mentioned union buttons, stating as follows: I wish you wouldn't wear that Union button. I can't tell you not to wear it, but it upsets the residents and as far as I'm concerned, you have no respect for the residents. Moury continued to wear his union button after both inci- dents and his eventual departure from the Home was vol- untary and apparently had nothing to do with the matter and issues involved here. Bruster testified, regarding the April 12 conversation with Moury , that a female resident in a wheelchair had noted Moury's union button when the three were together and that the resident had stated in a very sarcastic tone "buttons," after which Bruster com- mented to Moury that "I can't ask you to take off your button, but I do feel that you should observe that it did upset this lady." Conroe Miller is employed at the Home as a housekeep- er. Regarding the April 8 employees ' meeting which she attended, she testified that Administrator Bruster stated "he couldn't tell us not to wear [union buttons ], but he preferred us not to wear them, because it would upset the residents." Several days later, according to Miss Miller, she was approached by Executive Housekeeper Louise Cowgill who asked her if she "knew the rules of the Home," to which Miss Miller replied that she did . Whereupon, and according to Miss Miller, Louise Cowgill further stated "Well, aren't you going to take the Union button off?", to which Miss Miller simply replied that "[she] didn't have to take the Union button off." Miss Miller continued to wear her union button for several months thereafter until she lost it. She testified that if someone would give her another button that she would put it on immediately. Miss Connie Cole, a cook at the Home for 8 years, testi- fied that she attended the April 8 employee meeting and that at the meeting Administrator Bruster first read the "statement" from the court of appeals that allowed the em- ployees to wear union insignia , after which Bruster further stated "that he wished that we would think about wearing them in front of the residents , even though it was our right, that he thought that it would upset the residents." Miss Cole also related that on or about April 10 she was ap- proached by Dietary Director Ruth Landon who indicated that it was the "feeling" of the Home that employees should not wear union buttons "in front of residents," and that she (Miss Cole) should "think twice" about wearing the button. Miss Cole simply replied that she had given the matter some thought and that she was still going to wear the button in front of the residents. Miss June Hankie also attended the April 8 meeting and testified that at the meeting Administrator Bruster said "that he couldn't tell us not to wear [the buttons] but he wished that we wouldn't, because it upset the residents." Miss Hankie further related that there was a decrease in the wearing of buttons after the April 8 meeting and that she did not wear her button all of the time , finding that when she did she "was moved from one floor to another, unnecessarily." Administrator Bruster testified that some movement or temporary shifting of employees from one floor to another was necessary by virtue of absences and workload . Work records from the Home , although possibly incomplete, indicate that Miss Hankie was transferred three times during the period from April? to May 18. Miss Hankie would place the total number of transfers during the same period at six, although she did not keep her own records and did not remember the specific dates. Administrator Bruster, in cross-examination and relative to his action regarding the buttons , testified: Q. Have you, yourself , ever requested, or directed, an employee to remove a [Union button]? A. I have suggested that they take off the pin, and told them, at the same time , that they have every right OHIO MASONIC HOME 513 to wear them, but I feel very strongly that it does upset the residents. III. EVALUATION OF LAW AND EVIDENCE I find that the complaint in this case should be dismissed on two grounds. The General Counsel seeks an order here that would be duplicitous. I find that the activity com- plained of here falls without question under the umbrella of the Board's earlier order, later enforced by the Sixth Circuit. However, I further chose to hit the issue head-on. For- getting the prior litigation for the moment, in order for the General Counsel to prevail on the merits in this case, I must find, under the "totality of circumstances" concept, that the action of the Home constituted veiled or implied threats of reprisal and thus were unlawfully coercive. If I find that the action was protected free speech or simply noncoercive persuasion, the complaint must fail. The position of the Home and Administrator Bruster was made quite clear to the employees at the April 8 meet- ing. They had won, their victory and rights were acknowl- edged and they were yet (and in effect) requested to refrain from wearing union buttons around residents. Coram Mir- acle did not really remember whether or not Bruster men- tioned "Union" buttons on March 17. Kenneth Moury, on April 12, was merely again informed by Bruster of the Home's announced desires and wishes regarding the but- tons. On April 10, and using perhaps the strongest lan- guage found in the record adverse to the Home's case, Ex- ecutive Housekeeper Louise Cowgill asked Connie Miller "aren't you going to take the union button off?", to which Miss Miller replied "[she] didn't have to." Also on April 10, Miss Conroe Cole was approached by Dietary Director Landon, who related the "feeling" of the Home regarding not wearing union buttons around residents. Miss Cole re- plied that she had given the matter some thought and would continue to wear the button. Miss June Hankie pre- sented the only evidence in the record from which, in my opinion, one may possibly conclude discrimination or coercion. She testified that when she wore her union button she was moved from one floor to another, unnecessarily. Miss Hankie had no actual records reflecting the number and dates of the moves and the Home's records reflected a minimum number . A real need for such moves in general was shown and there was no showing whatsoever that the moves of Miss Hankie involved less desirable or unfamiliar work. On the record and evidence as a whole I do not find any action on the part of the Home which would constitute actual, implied, or veiled threats of reprisal and which would thus be unlawfully coercive. At best, I can only find that actions of the Home constituted noncoercive persua- sion. I further find that the desires and wishes of the Home (which I have characterized as, in effect, "requests") re- garding the wearing of union buttons around residents, and conveyed to the employees by public pronouncement and otherwise, constituted protected free speech under Sec- tion 8(c) of the Act. In this regard, I find that the Home's wishes and desires (or "requests") to be more akin to a view or opinion, as opposed to instructions or directions, and certainly far from rules or regulations. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The actions complained of in the complaint and as found in the record in the case, alleged as violations of Section 8(a)(1) of the Act, are cognizable and fall under a preexisting Board order entered on August 8, 1973 (205 NLRB 357), and enforced by an order of the United States Court of Appeals for the Sixth Circuit, entered on Febru- ary 25, 1975 (511 F.2d 527). 3. The Respondent did not violate Section 8(a)(1) of the Act by its actions as alleged in the complaint and reflected in the record of the case. [Recommended Order for dismissal omitted from publi- cation.]