Rock Island Franciscan Hospital

ROCK ISLAND FRANCISCAN HOSPITAL 291 Rock Island Franciscan Hospital and National Union of Hospital & Health Care Employees, Local 1199, RWDSU, AFL-CIO. Cases 38-CA-2481, 38-RC- 1760, 38-RC-1761, 38-RC-1763, and 38-RC- 1783 October 6, 1976 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, PENELLO, AND WALTHER On June 17, 1976, Administrative Law Judge Ben- jamin B. Lipton issued the attached Decision in this proceeding. Thereafter, the Union filed exceptions and a supporting brief, and Respondent filed an an- swering 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 complaint be, and it hereby is, dis- missed in its entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes have not been cast for National Union of Hos- pital & Health Care Employees, Local 1199, RWDSU, AFL-CIO, or Hospital and Nursing Home Division, Local 1470, Retail Clerks International As- sociation, AFL-CIO, with respect to Units A, B, C,' and D, and that neither labor organization is the ex- clusive representative of the employees in those units. MEMBER FANNING, concurring in part and dissenting in part: In the absence of exceptions to the Administrative Law Judge's dismissal of allegations that Respondent discharged employee John A. Terneny in violation of Section 8(a)(3) of the Act and engaged in certain coercive conduct in violation of Section 8(a)(1) of the Act, I concur in my colleagues' adoption of the dis- missal. Although the Union excepted to the Adminis- trative Law Judge's additional finding that Respon- dent did not interfere with the elections for the four different units involved herein, I also agree with their adoption of that conclusion with respect to all the units but Unit C.2 Like my colleagues, I further agree with the Ad- ministrative Law Judge that Gordon Hansen, head of Respondent's housekeeping department, violated Section 8(a)(1) of the Act by his repeated preelection statements to two housekeeping employees which "impliedly threatened that the employees would lose existing health benefits if they selected the Union." In this connection, the Administrative Law Judge found that Hansen was "not merely explaining the relative advantages in [Respondent's] present health insurance coverage" but was "in fact . . . carrying on an aggressive campaign of a broad nature to dis- suade his housekeeping employees from voting for the Union." However, unlike my colleagues, I do not agree with the Administrative Law Judge that these "in- fractions" were of a "relatively minor and confined nature" not warranting issuance of a remedial order and setting aside the election for the housekeeping employees in Unit C. I regard as serious violations of the Act Respondent's threats of loss of benefits if employees exercised the rights guaranteed to them by Section 7 of the Act. Accordingly, in my judgment, it would, effectuate the purposes of the Act to issue the usual remedial order for the violation.' In addition, I would find that said coercive conduct interfered with the Unit C election and I would therefore direct the holding of a second election for the employees in that unit. 1 The challenged ballots, which were sufficient in number to affect the outcome of the election in Unit C, were opened and counted subsequent to the issuance of the instant Decision 2 Prior to the hearing in the instant consolidated proceeding, it appears that no action had been taken, pursuant to the Regional Director's determi- nation, to open and count the challenged ballots which were sufficient in number to affect the outcome of the election for Unit C employees 3 Carolina American Textiles, Inc, 219 NLRB 457 (1975), Texberry Con- tainer Corporation, 217 NLRB 58 (1975) DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Administrative Law Judge: In Case 38-CA-2481, pursuant to an original charge filed on Sep- tember 4, 1974,' a complaint was issued by the General 1 All dates are in 1975, unless otherwise specified 226 NLRB No. 46 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel on October 17, 1975, and amended on March 9, 1976, alleging that the Respondent discharged John A. Terneny in violation of Section 8(a)(3), and independently engaged in certain coercive conduct in violation of Section 8(a)(1) of the Act. Cases 38-RC-1760, 38-RC-1761, and 38-RC-1762 involve petitions for certification filed on July 9 in respective appropriate units consisting essentially of office clerical employees (voting unit A), technical employ- ees (voting unit B), and service and maintenance employ- ees (voting unit C)2 Case 38-RC-1783 involves a petition filed on August 14 in an appropriate unit consisting of registered nurses (voting unit D). Pursuant to decisions and directions issued by the Acting Regional Director, elec- tions were conducted on November 21. In voting unit A, of 116 ballots cast, 10 were for the Union; 72 were against the Union; and 19 were challenged. In voting unit B, of 97 ballots cast, 30 were for the Union; 54 were against the Union; and 13 were challenged. In voting unit C, of 407 ballots cast, 134 were for the Union; 20 were for the In- tervenor; 3 177 were against participating labor organiza- tions; and 76 were challenged. In voting unit D, of 148 ballots cast, 1 was void; 23 were for the Union; 106 were against the Union; and 19 were challenged. As apparent, only in voting unit C were the challenged ballots sufficient in number to affect the outcome of the election. Thereafter, timely objections were filed by the Union alleging conduct by the Employer affecting and interfering with the elec- tions in all the units. On February 27, 1976, the Regional Director issued his formal report on the objections and the challenges in voting unit C, in substance as follows: The challenge to the ballot of Terneny involves the same issue presented in Objections 1 and 2 and in the complaint case as an alleged violation of Section 8(a)(3). The challenge to the ballot of Steve Strupp involves an eligibility question which can best be resolved by testimony at a hearing. The remaining 74 challenges were overruled and these ballots will be counted. If the ballots of Terneny and Strupp are still determinative of ° the election results, their eligibility status will be resolved on the basis of a hearing .4 All objec- tions were overruled with the exception of Objections 1, 2, and 6. On March 10, 1976, the Regional Director ordered consolidation of the complaint and representation cases for the purpose of a hearing before an Administrative Law Judge. In substance, Objections I and 2 are coextensive with certain allegations in the complaint. Evidence as to Objection 6 is limited to the representation case. On March 29 and 30, 1976, a hearing in the consolidated proceeding was held before me in Rock Island, Illinois. Posthearing briefs filed by each of the parties have been duly considered. Upon the entire record in the cases, and from my obser- vation of the demeanor of the witnesses, I make the follow- ing: Z The Charging Party in the complaint case and Petitioner in the represen- tation cases is hereinafter called the Union - 3 Hospital and Nursing Home Division, Local 1470, Retail Clerks Inter- national Association, AFL-CIO, intervened only in Case 38-RC-1762. 4 The results of the counting of the 74 challenged ballots do not appear in the instant record. However, no evidence was sought to be adduced con- cerning the status of Strupp. FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION Respondent is a "not-for-profit" corporation with facili- ties in Rock Island, Illinois, where it is engaged in provid- ing health care services. During the year preceding is- suance of the original complaint, Respondent had a gross volume of business valued in excess of $250,000, and had a direct inflow in interstate commerce of goods and materi- als valued in excess of $25,000. Respondent admits, and I find, that it is engaged in commerce, and that the Union is a labor organization, within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introductory Facts Respondent operates a large hospital facility which pro- vides general medical services for patients with physical as well as mental ailments. Approximately 800 employees were eligible to vote in the elections on November 21. The evidence taken of Respondent's operations is essentially confined to the mental health center having a complement of about 60 employees. These employees are divided into two teams in units A and B of the mental health wing. Each team consists of a team leader, registered nurses (RN's), licensed practical nurses (LPN's), and mental health technicians. Among such technicians were Terneny, the alleged discriminatee, and' Bryan Cook, the leading union organizer, both employed on the second (2:45 to 11:15 p.m.) of the three shifts at the mental health center. Barbara Erwin, the "p.m. charge nurse," supervised about 20 employees in both teams on the second shift. Erwin's supervisor is Bea Chumley, the coordinator of nursing, whose regular hours are from 8:30 a.m. to 5 p.m. Chumley reports to Dr. Thomas T. Tourlentes, director of psychia- tric services division, executive director of the mental health center, and assistant administrator of the hospital. Dr. Ritterhoff, a psychiatrist, is a "deputy commissioner" under Tourlentes. The Union was initially contacted by Respondent's em- ployees in anticipation of the passage of the Act's health care amendments in August 1974. The organizational cam- paign commenced in late May 1975, first concentrated among the mental health employees, and throughout the facility became "very strong in late June." As earlier noted, three of the four election petitions were filed on July 9. The Union's organizing committee, consisting of 12 to 15 em- ployees, had members from each of the 4 voting groups; and it generally appears that a coordinated campaign was conducted by the Union, as well as by Respondent, em- bracing all appropriate units involved. Campaign literature was disseminated by the Union, and by Respondent in op- position. Additionally, certain employees distributed litera- ture and campaigned against the Union as a "Committee of Concerned Employees," and as a similar but unrelated committee consisting of nurses. ROCK ISLAND FRANCISCAN HOSPITAL B. Allegations of Restraint and Coercion 1. On July 2, employee Bryan Cook had a conversation alone with Respondent's personnel director, Dennis R. Kobs, in the latter's office. Dated June 13, a written repri- mand had been issued against Cook by Charge. Nurse Er- win for two instances of tardiness . On June 26, Erwin re- viewed the reprimand with Cook. Admitting the tardiness, he told her he felt he was being harassed . On July 1, Bryan spoke with Coordinator of Nurses Chumley,. who declined to remove the reprimand. As the next step in the procedure for grievances, a meeting was arranged and held with Kobs. Cook testified Kobs was the "top person" to decide whether to remove the reprimand from his personnel fold- er. One of the functions of Kobs in such a conference was to assist the employee in preparing the grievance in proper written form. Cook's meeting with Kobs lasted about 3 hours. Most of such time was apparently devoted to a discussion of union organization at hospitals generally and of the Union's on- going campaign - among Respondent's employees.. Kobs was fully aware of Cook's leading role as an employee or- ganizer. As he explicitly told Kobs, Cook grieved on the ground that he was given the reprimand because of his involvement with the Union. During this conference, Kobs had drafted the grievance for Cook in handwriting. It was understood that, after being typewritten , the grievance would be formally considered at a meeting set up for the following Tuesday in Kobs' office. However, Cook made no further effort to pursue the grievance and concededly dropped the matter. In General Counsel's brief, stress is laid on the fact that the written reprimand was reviewed with Cook on June 26, some 9 weeks after the first incident of tardiness ' and 2 weeks after the second such incident. This argument seeks to imply that Erwin belatedly decided to issue the , repri- mand when she became aware of Cook's activities in the developing union campaign. However, there is no allega- tion of discrimination against Cook, and no such question was properly raised or litigated . The issue at hand concerns seriously coercive statements allegedly ,made by Kobs to Cook during their discussion on July 2. Thus Cook testi- fied: Kobs told me that he had written a book on how to keep unions out of places and he referred to my repri- mand saying that this was the kind of thing that hap- pens when unions try to come in places. He said that things were going to become more uncomfortable in the future, and that it was his position that he was going to do everything he could to fight the Union and to keep it out of the hospital.... He said that there's ways of keeping unions out like changing, laying peo- ple off, changing work assignments, transferring peo- ple, just generally making people uncomfortable. The book referred to by Cook was available in Kobs' office but was not displayed during the conversation. Published in February 1975, it consists of "readings" from articles by other writers on the general subject of unionization at hos- pitals which were selected from a certain journal ("Hospi- tal Progress") and edited by Kobs. 293 The question reduces itself to a resolution of credibility. Neither witness impressed me as being entirely forthright and having a clear memory of the long discussion. Howev- er, I am persuaded in the result by the inherent plausibil- ities involved. In Cook's brief account, quoted above, he attributes to Kobs a statement bluntly describing plain and pervasive tactics of coercion as Respondent's policy in combating the Union . Considering the long election cam- paign encompassing the numerous employees throughout the hospital, the policy thus described is not reflected in the evidence of Respondent's actual conduct. On its face it seems , improbable that Kobs, as personnel director, would so openly make such damaging admissions to Cook, the outstanding employee organizer, in the midst of an election campaign. Indeed, Cook's version implies a virtual conces- sion by Kobs that Cook's grievance was meritorious. Yet Cook subsequently abandoned the grievance. As to critical elements of his testimony, Cook was equivocal and vague. On cross-examination, he testified as follows: Q. You say that he talked about ways of keeping unions out and laying people off and changing work assignments, is that your testimony? A. Uh-huh. Q. Was he talking about Franciscan Hospital or was he talking about what other employers had done? A. Well, I feel as though he was talking about Fran- ciscan Hospital because he said it was his position that he was going to do everything he could to fight the Union and to keep it out of the hospital. It thus appears that Cook was stating his interpretation rather than the substance of the language actually ex- pressed by Kobs. In summary, I am disposed to credit the denials by Kobs and find this allegation of the complaint unsupported in the evidence. 2. The complaint alleges that, in mid-July, Chumley un- lawfully engaged in coercive interrogations and threats to impose more adverse working conditions. General Counsel relies on Chumley's own testimony of a conversation with Terneny in which she indicated that, in her opinion, "it could make things more difficult" in regard to staff rela- tionships with patients if "a third party" (i.e., the Union) represented the employees. General Counsel's brief does not argue the issue. These allegations are dismissed as to- tally unsubstantiated. 3. Gordon Hansen is directly employed by Service Man- ager Incorporated and is assigned to-work for Respondent as head of the housekeeping department . It is admitted that he is an agent of Respondent. Two of the housekeep- ing employees under his supervision are Kenny Pratt and John J. Peters. Both these employees testified that Hansen approached and spoke to them concerning the Union about 2 weeks before the election . Pratt was allegedly told "we would lose our Blue Cross and Blue Shield medical benefits and if we were ever to be a patient in the hospital, we'd have to pay our own hospital bill." Peters stated he was told that-if the employees "got the Union," they would lose their benefits, the Blue Cross-Blue Shield they presently have; and if they went to the hospital they would have to pay their own bills. Hansen testified he did not recall any specific conversations with Peters about the 294 r DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, and denied Peters' testimony, as related above.5 He had made several attempts to explain "different handouts" to Peters, but Peters usually refused to listen. However, he did have many conversations with Pratt about existing benefits at the hospital, such as health insurance. Compar- ing his own- insurance policy, Hansen said that Pratt al- ready had a very good package, without any deductible, and, he did not have to make payments himself and then get reimbursed from the insurance company. It is apparent that Hansen was not merely explaining the relative advantages in the present; health, insurance cover- age of the employees. In fact he was carrying on an aggres- sive campaign of a broad nature to dissuade his housekeep- ing employees from voting for the Union. I accept the testimony of Pratt and Peters, in substance. Though he was not a direct employee of Respondent, Hansen was never- theless an admitted agent. As such, he was, not privileged in the manner he undertook to make coercive predictions to employees who did not know the source of his information. I find his statements to Pratt and Peters impliedly threat- ened that the employees would lose existing health benefits if they selected the Union.6 It is therefore held that Hansen's conduct violated Section 8(a)(l), as alleged. 4. Joni Anson, employed in data processing, was a member of the Union's organizing committee, as publi- cized in the Union's literature, and was generally known as a principal organizer. In August, as Anson was walking out of the department, Supervisor Joaquin Espejo approached her with a union leaflet in his hand. He asked in a loud voice whether she had written it. She answered, "No." He said, "Are you sure," and she replied, "Yes." Other em- ployees were within earshot. The content of the leaflet was not revealed in evidence. On many occasions, Espejo- brought to her desk campaign literature from the Con- cerned Employees Committee, the Respondent, and the Union. Usually she read and then returned such material to him; occasionally he gave her a copy to keep. As to Espejo's question whether she had written this piece of union literature, the complaint alleges coercive in- terrogation. It is argued in essence that it carried some tendency to restrain employee participation in writing campaign material which might be' objectionable to Espejo or Respondent. However, I find the purpose, tendency, and effect of, such interrogation entirely too vauge, and it cannot be construed as intended to discover the union sen- timents of Anson. Accordingly, I conclude that the alleged violation is without merit. C. Discharge of Terneny Terneny was hired as a mental health technician on June 5 and terminated on September 2 at the expiration of his probationary period. He has a B.A. in psychology; appar- 5 Peters added assertions by Hansen that employees at the hospital "would have to walk the picket line for these other factories when they went on strike," and if they had any grievances they would have to take it to New York. These statements are not alleged as violations. However, they are indicative of the character of Hansen's proselytizing against the Union 6 These were not carefully phrased predictions based on objective fact conveying demonstrably probable consequences beyond Respondent's con- trol NLRB v Gissel Packing Co, Inc, 395 U.S. 575, 618 (1969) ently he had no prior experience in these particular duties; and he received orientation and training on the job. From the outset, he became active in the union drive, as shown infra., His discharge was initiated by Charge Nurse Erwin, approved byCoordmator Chumley,_and participated in by the health center director, Dr. Tourlentes. As described by Respondent's counsel in opening remarks, such action was taken "primarily" on the grounds of his "ovennvolvement with mental patients." Chumley indicated as a further pri- mary.reason Terneny's "difficulty staying within the job description." The, latter pertained to Terneny's efforts to obtain permission to conduct "group therapy" sessions with mental patients. Shirley Kindred and Lisa A. Showal- ter, team leaders, who worked more closely with Terneny, were consulted -by Erwin as to his job performance before recommending termination .7 An issue involving the razor blades incident was also relied on by Respondent as an alleged 'exercise of poor judgment by Terneny. A further purported ground consists of a written reprimand for -ad- mitted tardiness which Erwin issued-to Terneny shortly af- ter he commenced employment. I do not consider this sin- gle instance of tardiness a significant factor in Respondent's decision on the overall issue; the detailed cir- cumstances will not be discussed. There are no critical fac- tual disputes or issues of credibility. As part of Respondent's` established practice, a written evaluation or "Report of Progress" was made out and dis- cussed with the employee at 30 day intervals during the 90-day probationary period. Utilizing the same reporting form, these evaluations were also conducted for regular employees for consideration, inter alia, of promotion and salary increase. Three such evaluations, on July -15, August 6, and terminally !on September 2, prepared by Erwin and reviewed by Chumley, were discussed with and issued to Terneny. The first evaluation, with some qualifying re- marks, was generally favorable. The second and third eval- uations 8 contain certain critical comments by Erwin re- garding his "personal over-involvement" with patients, the razor blades incident, his desire to conduct "group thera- py,""difficulty to stay within the outlines of his job de- scription," 9 and "inability to benefit- from guidance and recommendations." In Respondent's manual on personnel policies are provi- sions defining the status of probationary and regular em- ployees. As to the former, it is stated that, within the pro- bationary period, "the Hospital' and the individual can determine either individually or 'mutually whether or not continued employment will be beneficial to both parties. No prior notice of termination is required by either party during this period." r In Voting Unit D, charge nurses and team leaders are included and eligible to vote At the hearing, Respondent amended its answer to the complaint by admitting that Erwin was an agent and had authority to rec- ommend Terneny's discharge - 8 These reports rate the employee, with inserted notations, on numerous aspects of job performance A copy of the third evaluation is attached here- to as Appendix A [omitted from publication] 9,His job description is attached hereto as Appendix B [omitted from publication] ROCK ISLAND FRANCISCAN HOSPITAL 295 1. Issue of overinvolvement Respondent's policy was verbally conveyed to Terneny when he was interviewed and hired by Chumley. Inter alia, he was advised, as a staff member, to avoid "personal in- volvement" with patients, particularly in seeing them on a personal basis during their hospitalization or after they were discharged. On July 23, the following memorandum was distributed: To: All MHC employees and staff members From: Thomas T. Tourlentes, M.D. Date: July 23, 1975 Re: Personal relationships with patients People with emotional problems are very vulnerable and easily exploited in their time of need. Widely con- demned obvious examples include borrowing or lend- ing of money, buying or selling of valuable objects or services, and- romantic intimacy. Such behavior is a violation of the first principle of treatment: never to hurt any patients. In many instances the patient caught up in such trans- actions denies any complications, but eventually there is resentment and bitterness. When these feelings of disappointment and distrust exist, the patient will be less likely to seek out timely and appropriate help in any new crisis. It also is possible that a distraught pa- tient caught up in-such an emotional trap may act out in an aggressive and irreversible way. It is the firm and unequivocal policy of the Mental Health Center that no employee or staff member may engage in romantic, financial, or other inappropriate personal relationship with known mental health pa- tients. Employees or staff members who have ques- tions regarding this policy, or its application in partic- ular circumstances, have the obligations to call this to the prompt attention of an appropriate and responsi- ble supervisor. Any willful violation of this policy will be considered a major disciplinary offense. All employees and staff members are requested to sig- nify their understanding and acceptance of this policy by returning a signed and dated copy of this memo- randum at their earliest convenience. TTT/mw Signed: Date decide where to draw the line as to where and how far a relationship should go. If they do not have this abili- ty and competence, they should not have been hired for Mental Health Staff. John Terneny MHT About 12 other staff members, all regular employees, re- fused to sign the policy statement, some with written com- ments indicating various reasons, for the most part relating to the vagueness in certain of its terms. They were not disciplined therefor in any manner. Erwin noted on Terneny's second evaluation "his opinion contrary to the policies of N.H.T." Chumley, as well as Respondent's counsel, indicated that Terneny's refusal to accept the stat- ed policy and the nature of his written remarks were relied on in the decision to terminate him. Dr. Tourlentes initially testified that "the manner in which [Terneny] stated his position" was a factor in the decision, and then revised his testimony to assert that it was not considered, but it alerted him to Terneny's existence as a "person of questionable performance." Erwin testified, in Chumley's presence, she discussed with Terneny his second evaluation on August 6.10 The significant aspect was his relation to a patient of the oppo- site sex. Between the second and third evaluations, she continued to observe Terneny pursuing the same manner of conversing with young female patients. Before making her recommendation for Terneny's third evaluation, she consulted with certain of his team leaders, in accordance with usual practice. She took their statements into account, although she did not indicate to them that he was being considered for discharge. Kindred testified she told Erwin, inter alia, that Terneny reported an instance in which a patient had become infatuated with him, that he discussed with her his method of working with the patient, and that this turned out well, with "good therapeutic value." He was happiest when working "in-depth with patients," was im- proving a lot in his charting and, in her opinion, would make a "very good technician." 11 Showalter testified she told Erwin that Terneny had difficulty following direc- tions, and he became what appeared to be overly involved with patients. She mentioned specific patients and inci- dents which she had observed. One patient seemed to re- late to Terneny very much in a personal way, which was "other than therapeutic." At dances in the community room, there was quite a bit of unnecessary bodily contact on his part with the patient.12 Chumley testified that, in discussing overinvolvement, Terneny told her he felt it was necessary to work in a very Chumley testified that, as previously promulgated verbally, the policy was essentially the same but that, in the written form for the first time, violation would be considered a possible major disciplinary offense. Terneny refused to sign the policy statement and appended handwritten re- marks, viz: Dear Mr. Tourlentes: I consider this an infringement upon my civil rights and those of the rest of the staff, and patients, because some contact with patients is beneficial to patient after their discharge, and I believe that every staff member here is intelligent enough to 10 On the evaluation report, she noted Expresses his opinion, contrary to the policy of M H C. Personal in- volvement with pts, specifically contact with pts after discharge He was aware of M.H C's policy at time of employment, but voiced noth- ing to the contrary Seems to have difficulty accepting limitations of his job In some instances has overextended himself in relationships with pis Erwin's version was that Kindred felt he worked well on a one-to-one basis with patients, but did at times tend to get overinvolved iZ Showalter, no longer employed by Respondent, was called as a witness for General Counsel She was also one of the staff members at the time who refused to sign the policy statement on "Personal relationships with pa- tients." supra 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intensified, in-depth, nature with patients at all times; and it was -pointed out to him that this would lead to a loss of objectivity. In approving the recommendation for dis- charge, she was aware only of the reports by Erwin con- cerning Terneny's actual conduct. Dr. Tourlentes testified that, on Chumley's request, he prepared a memorandum of his concurrence after the fact of Terneny's discharge. However, prior to the termination, he had several discussions with Chumley and Dr. Ritter- hoff and was aware of the problems with Terneny. They were concerned about Terneny's response to the policy statement of July 23 regarding inappropriate relationships with patients. Ritterhoff felt very strongly that Terneny should be ` terminated immediately. Tourlentes disagreed and decided that Terneny should be given a further chance. Ultimately, he was consulted by Chumley before- hand and approved her recommendation of dismissal. The reasons were Terneny's "inappropriate expectation of his ability to perform on that job; his demand to be allowed [to function as] a group therapist; his poor judgment in dealing with" the razor blades incident. As to the other 12 employees who refused to sign the policy statement, they were not in the probationary period. It was his under- standing that, if Terneny were allowed to go beyond his probationary period, he would really never be a satisfac- tory employee and Respondent would become liable for unemployment compensation. Terneny gave no testimony in refutation of the foregoing evidence concerning his "overinvolvement." 1'3 Certain comparisons in Respondent's treatment of em- ployees were adduced on both sides." Respondent showed the discharge of one employee based entirely on overin-- volvement with patients, and the discharge of another in part on such ground.15 That these actions were effected several months after' Terneny's discharge, as General Counsel argues, does not render the evidence suspect. I cannot ' accept the theory that Respondent would under- take further terminations merely to bolster its position as to Terneny. That the two 'dischargees wore union buttons is of no significance absent proper allegations of discrimination. Over a period of more than 2'years, only one other employ- ee (an RN) was terminated (for reasons unexplored), of about 75 probationary, employees under Chumley's super- vision. Before the July 23 policy memorandum, Chumley was made -aware that an LPN was getting married to an expatient, but, no disciplinary action was taken. Chumley had extended the 90-day probationary period for one em- ployee in 1975,16 on' the recommendation of a primary team leader, because this employee was having some diffi- culties. 13 It was shown that, after his discharge, over a dozen patients petitioned for his rehire However, I do not conceive this fact as materially supporting General Counsel's case 14 The instances relied on by General Counsel are based principally on the evaluation forms for such other employees which, in my view, involve different ratings and circumstances and do not fairly present comparable situations. - 15 I deem it unnecessary to discuss the relative seriousness of the manner in which the stated policy was ostensibly violated. 16 Apparently, there were other prior instances. 2. The razor, blade's incident A patient confided to Terneny in the community room that she had purchased razor blades at the hospital gift shop, and she voluntarily gave him the blades. Terneny did not immediately report this incident. After he left work, he discussed the matter with Kindred and Staes, team leaders. He said the patient had put her trust in him, which he did not want to violate by telling the staff. Upon Kindred's recommendation, he made a report by telephone to the hospital about 1 hour after his shift had ended. The patient had been classified as suicide prone when admitted to the hospital and was then subject to precautions and other re- strictive privileges. It was known that on one occasion in the hospital she had slashed her wrists. At the time of the incident in question, the patient had been reclassified and was permitted certain privileges, including access to the gift shop. In a manual, and as part of his orientation, Terneny was made aware that glass, razors, and razor blades are taken from all mental patients on being admitted to the hospital. A day or two after the incident, Erwin discussed the matter with Terneny. She indicated that such a -confi- dential relationship with a patient should not be estab- lished. He admitted that he made an error in judgment, but he did not want to talk about it with her. In a previous discussion, Erwin described the supervision and restriction of privileges required for a patient on suicidal precaution (SP). Terneny used the term "baby sitting," and stated his opinion that close supervision was not necessary, but rath- er that the relationship sought should be one of trust.l" On his second evaluation of August 5, Erwin attached a crit- ical statement concerning the incident, and itwas further discussed at this time with the participation of Chumley. Erwin or Chumley commented then that it was a "very good learning experience" for him as related to his total training program. The essential basis for criticism was not that he violated any specific rule, but that he had' used poor judgment in failing to report the matter immediately. 3. Group therapy On Terneny's first evaluation, covering the period from June 5 to July 5, Erwin noted that he "had made some plans to initiate different type of group therapy for patients if approved." (Emphasis supplied.) Chumley testified that there had been informal group sessions conducted by John Lofgren, a mental health technician, and Mary Earhart, an LPN, with some supervision provided by a staff psycholo- gist. It was a "social interaction group" and not intended to be a formal "psycho-therapeutic" session.18 The program had lasted from the end of 1974 until April 1975, when Lofgren left his employment. In early July, Terneny left a note for Chumley. He understood there was a p.m. (eve- ning) group in the past; some patients had approached him 17 Erwin testified that these discussions entered into her later decision to recommend his discharge in that it showed he had difficulty following guidelines. 18 Cook testified that informal group therapy sessions were conducted by almost all mental health technicians. Kindred gave similar testimony that such sessions were a "casual, spontaneous thing," in which Terneny himself was involved "many times." ROCK ISLAND FRANCISCAN HOSPITAL about group therapy; and he wanted to talk to her about it. She spoke with him one week later. She told him that it was her decision not to have another p.m. group as it had "more disadvantages than advantages" and that, further, she felt he was not qualified to warrant such a group in view of his short length of employment. He "seemed to be receptive." During the week of August 18, in a conversa- tion with Erwin, Terneny alluded to the fact that he had not been allowed to do a group therapy. Erwin testified he became quite loud, said it was not fair, and asked "who is (Chumley) to make that decision that he was not able to do it." In another discussion, Terneny told Erwin he had spo- ken to the staff psychologist in the outpatient department about the` possibility of "doing an out-patient group" on the p.m. shift. On his third and terminal evaluation, Erwin noted his "inability to accept certain aspects & limitations of this job," and she attached a full report on the subject of Terneny's request to conduct group therapy. 4. Union activities Terneny wore a union button on the second day of his employment (June 6). Many other employees, more than 100 at one time, openly displayed such buttons. In mid- June, he attended a large organizational meeting at which he was filmed on a television evening news program in a group with several other union proponents. Various mem- bers of the union organizing committee, not including Ter- neny, made statements on 'television and had articles and letters to the editor published in local newspapers. In July and August, he passed out union literature at hospital en- trances and in the cafeteria to employees, supervisors, and higher management personnel. He also solicited authoriza- tions and succeeded in obtaining 15-20 signed cards. In August, he attended 5 of the 6 days of Board hearings in the representation cases, and passed notes, from the gallery to Cook at the Union's counsel table. On August 12, his name was added in handwriting with those of four commit- tee members already printed on a union leaflet for distribu- tion-indicating persons to be contacted for information. This event took place upon instruction of a union official at the premises of the hearing, and the leaflet was subse- quently distributed. The union organizing committee con- sisted of 12 to 15 employees, varying in number from time to time. Apparently, Terneny was a member of the com- mittee.19 Terneny and Cook, the chief organizer, were roommates during most of the campaign, were on the same team in the mental health unit and, as part of a larger group, participated, in pamphlet distribution. Respondent admitted that members of the union com- mittee were "well known" to the hospital, and that it was "well aware" of the activities of Terneny. Erwin knew he wore a union button. She herself wore a button opposing the election of the Union, and she discussed her feelings with some employees. Chumley knew he was active in the campaign. She had spoken about the Union with more than half of the employees under her supervision, although 19 One employee on the committee testified she was told in July that Terneny was a committee member. He did not himself so testify 297 what- she said is not shown. As earlier described, she told Terneny her opinion that unionization could make it more difficult to function under the team concept in the mental health unit. Conclusion In the long campaign involving over 800 employees in four voting units embracing virtually all departments of the hospital, it does not appear that Respondent has commit- ted any Section 8(a)(1) violations, apart from the two in- fractions by Hansen of a relatively minor and confined nature. Respondent's union opposition-is not, in my opin- ion, so pronounced or hostile as to reflect a coercive or discriminatory animus toward employees favoring the Union.20 The evaluations and discussions concerning Terneny's job performance portray a large subjective con- tent on the part of his reviewers, particularly Erwin and Showalter. The totality of the evidence leaves little basis for challenging the sincerity of all the individuals who crit- ically appraised Terneny although others might have dif- ferent views as to the seriousness of his conduct. Concern- ing the ground of his "ovennvolvement with patients," the record does not present any clearly comparable situations of a different application of the policy to other employees. There are two added considerations. (a) It is evident that an element of professional medical judgment, in the esoter- ic field of mental health care, entered into the decision to dismiss Terneny.21 (b) An employee in probationary status has all the rights and protections of the Act, as any other employee. However, unless it is intended to cloak an un- lawful purpose, an employer's use of a wider discretion in determining not to continue employment of a probationary employee does not on its face constitute evidence of dispa- rate treatment of this class. It appears that such a factor was substantially relied on by Respondent in Terneny's termination. I cannot find that the various grounds underlying the discharge decision were so clearly unreasonable as to war- rant the inference they were pretexts, separately-or com- bined. And generally, I am not persuaded that Terneny's union activities were so outstanding, in contrast with other employees, or that the timing or circumstances of his dis- charge were so pointedly opportune, as to justify the con- clusion that Respondent engaged in an unlawful discrimi- nation. Accordingly, I find that the burden o'f proving the alleged violation of Section 8(a)(3) has not been sustained. D. The Representation Cases In, Objection 6, the Union alleges that the Employer im- properly assisted and directed the Committee of Con- cerned Employees, hereinafter called the Committee.22 20 Cf Boston Cab Company, Inc, et al, 212 NLRB 560, fn. 2 (1974). 21 While entitled to a measure of weight in this case, such professional opinion is not immune from challenge and may be outweighed by other evidence in different circumstances to establish pretext. 22 In his report, the Regional Director indicated this objection would be supported if a witness proffered by the Union were credited. The witness Continued 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Witnesses Kenneth Arnold, Cappy Johnson, and Mary P. Hadley were called by the Union. Arnold, an electronic technician, testified that the Committee was formed in Au- gust 1975 to urge employees to vote against unionization. The Committee consisted of about eight "people," all of whom participated in drafting , leaflets at Hadley's resi- dence where weekly meetings were held. Johnson was em- ployed in the hospital's print shop; she has the same work- ing hours, from 7 a.m. to 3:30 p.m., as does Arnold. Before and after their working hours and on weekends , the leaflets were brought by Arnold to the print shop, where copies were xeroxed by Johnson on the hospital's paper. About 20 different leaflets were thus prepared , with 200-300 copies of each. They were distributed by committee members to employees as well as to supervisors in the hospital cafeteria during the lunch hour . Certain small expenses were paid out of the pocket of the committee members. The contents of the leaflets, of which many are exhibits in evidence, are not alleged as coercive or objectionable . There is no direct evidence that supervisors participated or assisted in the committee activities , or that any supervisors were aware of the use of the hospital's premises, equipment, and paper in the preparation of the committee leaflets. The testimony of Arnold and Johnson tends to show that they sought to carry out their xeroxing operations in a manner designed to avoid any knowledge by management. The Union con- tends that an inference may properly be drawn that many of the supervisors must have known and acquiesced in such use by the Committee of the hospital's property, and that generally the Employer interfered with the elections by uti- lizing the Committee in a manner calculated to give other employees a false impression of the depth and rationality of employee opposition to the Umon. The testimony of Arnold and Johnson raises serious questions as to their veracity.23 They were called to estab- lish the Union's supporting evidence, and no opposing wit- ness testified for the Employer . Supervisory assistance or direction of the Committee, as alleged, is not reflected in this record by any positive evidence . In my opinion, in this case such evidence cannot be found or inferred on suspi- cion or simply on the discrediting of Arnold and Johnson. Accordingly, it is concluded that Objection 6 has not been supported. was identified as Joni Anson As earlier described, she testified that Supervi- sor Espejo brought her literature to read from the Committee, the Respon- dent, and the Union. She also saw one employee writing a committee card at her desk during working time , without the awareness or approval of any supervisor This testimony is plainly inadequate to support a finding of interference with the elections 23 Inter alia, several conflicts appear Arnold stated that different type- writers were used at Hadley's residence to type the originals of the leaflets Hadley testified that there was only one typewriter at her home. Johnson insisted she was not a member of the Committee, although she had attended two of its meetings (at which she said there were no leaflets drafted), and she assisted in distributing the Committee's literature In the pnntroom, Arnold assisted her only "once in a while " Arnold stated they worked together In Objections 1 and 2, merit has been found as to only one aspect, in that Hansen threatened two of his house- keeping employees with loss of health insurance benefits if the Union succeeded in the elections. In view of the narrow and isolated circumstances involved, this finding is scarce- ly sufficient to set aside all the elections or the particular election (Voting Unit C) in which these employees were included24 It is therefore recommended that.the Board is- sue certifications of results of the elections. III. THE REMEDY It has been found that all the complaint allegations of significant violations are not supported by a preponder- ance of the evidence. In limited circumstances, an 8(a)(1) violation has been found with respect to"Hansen's threats to two housekeeping employees that certain existing health insurance benefits would be lost if the Union became the employees' bargaining representative . Upon the totality of this record, I am of the opinion that it will not effectuate the purposes of the Act to issue a cease-and-desist order against Respondent. CONCLUSIONS OF LAW 1. The 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. In one limited respect, the Respondent has violated Section 8(a)(1), as to which it will not effectuate the Act's purposes to issue an order. All other complaint allegations that the Respondent violated Section 8(a)(1) and (3) of the Act have not been sustained. 4. The Employer has not interfered with the elections in Cases 38-RC-1760, 38-RC-1761, 38-RC-1762, and 38- RC-1783. It is recommended that the Board issue certifica- tions of results of the elections in these cases. 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: ORDER25 The complaint is hereby dismissed in its entirety. 24 The Union contends that the elections be overturned in all four voting units if any one of its Objections is sustained 25 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