Chicago College Of Osteopathic Medicine

CHICAGO COLLEGE OF OSTEOPATHIC MEDICINE Chicago College of Osteopathic Medicine and Connie B. Stewart. Case 13-CA-12479 April 21, 1975 DECISION AND ORDER By MEMBERS JENKINS. KENNEDY. AND PENELLO On December 31, 1974, Administrative Law Judge Richard L. Denison issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the Decision of the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,¹ and conclusions of the Administrative Law Judge and to adopt his recommended Order dismissing the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 1 In agreeing with the Administrative Law Judge that no jurisdiction exists over Respondent, we deem it unnecessary to consider his alternate view relating to the applicability of the "50 percent" rule enunciated in Duke University. 200 NLRB 81 (1972) Nor need we consider, in view of our dismissal for lack of jurisdiction, the merits of the unfair labor practice allegations of the complaint. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge: This case was tried before me at Chicago, Illinois, on September 18, 19, and 20, 1974. The charge was filed by Connie B. Stewart, an individual, on July 5, 1973, and later amended on July 23, 1973.' The complaint, issued on August 5, 1974, and amended at the hearing, alleges that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Connie B. Stewart because of his union activities and protected concerted activities, and further independently violated Section 8(a)(1) of the Act by means of interrogation, threats, changes in working conditions, and promises of benefit directed toward the other employees. Respondent's answer denies the allegations of unfair labor practices alleged in the complaint. 1 All dates are in 1973 unless otherwise specified. All parties were afforded full opportunity to participate in the trial and to argue orally. The General Counsel and the Respondent have filed briefs which have been carefully considered. Upon the entire record in the case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1 THE ISSUES A. Whether jurisdiction should be asserted over the Respondent on the basis of the Board's jurisdictional standards for nonprofit educational institutions enunciated in Cornell University, 183 NLRB 329 (1970); or whether Respondent, with respect to the events of this case, is not an employer by operation of the then extant nonprofit hospital clause of Section 2(2),² and whether its employees are thus excluded from the Act's coverage by virtue of Section 2(3).³ B. Whether or not Connie B. Stewart was discharged because of his activities on behalf of the Warehouse and Mail Order Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and his protected concerted activities, in violation of Section 8(a)(3) and (1) of the Act. C. Whether Respondent through its supervisors was engaged in various acts of interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. II LABOR ORGANIZATION As alleged by the complaint and admitted by the answer, I find that the Warehouse and Mail Order Employees Union Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereafter referred to as Local 743, is now, and has been at all times 2 At the time the charge was filed in this case prior to amendment by Public Law 93-360 (July 26, 1974), 61 Stat. 137, 29 USC § 152, effective August 25, 1974, Sec. 2(2) read. The term "employer" includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof. or any corporation or association operating a hospital. if no part of the net earnings inures to the benefit of any private shareholder or individual, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer). or anyone acting in the capacity of officer or agent of such labor organization. 3 Section 2(3) reads: The term "employee" shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act exphcitly states otherwise, and shall include any individual whose work has ceased as a consequence of. or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment. but shall not include any individual employed as an agricultural laborer. or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined. 217 NLRB No. 75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD material herein, a labor organization within the meaning of Section 2(5) of the Act. III JURISDICTION As alleged in the complaint and admitted by the answer, Chicago College of Osteopathic Medicine IS a nonprofit II- linois corporation with its principal offices located in Chicago, Illinois, where it operates a medical college and teaching hospital. During the calendar year 1973, a representative period, Respondent's gross revenue, excluding revenues from its hospital operations and grants unavailable for operating expenses, was in excess of $1 million. During the same period of time Respondent purchased and received at its Chicago, Illinois, facility goods and materials valued in excess of $50,000 from points outside of the State of Illinois. Other uncontradicted and credited testimony concerning Respondent's operations was adduced at the hearing by its vice president in charge of business affairs, Dr. Robert Schaerer, and its chief of security, Eugene Irvin, Sr. Basically there are three divisions of Respondent, the Chicago Osteopathic Hospital, the Chicago Osteopathic Clinic, and the Chicago College of Osteopathic Medicine which includes an apartment complex known as Ashmore Apartments. The hospital is a seven-story building with three wings, occupying the space of one city block. The clinic IS the older portion of the hospital building, a two-story structure Adjacent to the hospital building is the basic science building of the college, three lots of a city block in area, and an apartment complex, two lots of a city block in size. The personnel department is located in a prefabricated building 60 to 80 feet south of the hospital. Here are kept the personnel records for all of Respondent's employees except those of top-level college people, whose hiring and supervision falls within the responsibilities of the dean. Dr. Schaerer is in charge of business affairs for all divisions of Respondent. There is one business office and one set of books. Ninety percent or more of Respondent's purchases are for the hospital, and the great majority of its maintenance expenditures are for this building. Unlike colleges and universities having an appurtenant medical school and hospital, Respondent's academic program is entirely postgraduate medical training. Students, having completed their undergraduate premedical education elsewhere, are accepted into Respondent's program which emphasizes practical training in the hospital. After initially completing basic science courses such as anatomy and physiology, which are taught in the basic sciences building, the student attends the remainder of his classes in the seminar rooms of the hospital. In addition, groups composed of approximately nine students are assigned to a doctor where for 6 or 8 weeks they intensively pursue a specialized subject, such as urology, before being tested. This phase of the program involves hospital work with actual patients under the doctor-instructor's close supervision. Although the Chicago Osteopathic Hospital is a teaching hospital, it is equipped to perform and does perform all the functions and services that any hospital can do, including open heart surgery, with the exception of treatments involving cobalt radiation and brain surgery. The Respondent employs approximately 1,000 employees, of which a great majority work in the hospital. This case involves Respondent's force of security guards under the direct supervision of Chief of Security Eugene Irvin, Sr., whose office is located in the hospital. Irvin's superior IS Vice President of Business Affairs Schaerer. As of June 1973, when security guard Stewart was terminated, Respondent employed 18 persons as guards, all of whom worked in the hospital except for three officers, one each shift, who patrolled all the other buildings. Although assignments to either the college buildings or to the hospital are permanent assignments and interchanges do occur when necessary The security guards are Respondent's employees working under the same centralized supervision as other hospital employees. The guard's personnel records are kept in the central hospital personnel department building together with the records of all nonacademic hospital employees. General Counsel argues in his brief that the Board should assert jurisdiction over the Respondent in that, based upon the allegations in paragraph II of the complaint as admitted in the answer, the Board should view Respondent as a nonprofit educational institution clearly meeting the Board's jurisdictional standards by virtue of the admitted allegations of the complaint, paragraph II. On the other hand, Respondent contends that it is in reality a nonprofit hospital containing, as an integral part of its operations, a medical college, and thus all its employees, including the group of guards involved in the case are employees of that hospital, exempt from coverage under the Act at the time of the instant charge by operation of Section 2(2) and (3) of the Act. Respondent further notes that the security force spends well in excess of 50 percent of its time performing services for the hospital. Among the cases cited by Respondent are Lovelace Foundation for Medical Education and Research, 165 NLRB 743 (1967); The Cleveland Clinic Foundation, 205 NLRB 989 (1973); Loyola University Medical Center, 194 NLRB 234 (1971); and the two Duke University Cases, 194 NLRB 236 (1971), and 200 NLRB 81 (1972) Counsel for General Counsel, on the other hand, responds that the Duke cases are representation cases and that the 50-percent rule enunciated by the Board in the second Duke case is a rule applicable only to the unit placement of employees, which Respondent has misapplied in the context of an unfair labor practice proceeding. General Counsel further contends that the facts in the instant case are comparable to the line of decisions in which the Board asserted jurisdiction over educational institutions that also operated hospitals as an adjunct to the college or university, citing The University of Chicago, 210 NLRB 190 (1974). I cannot agree. In footnote 1 of the Board's University of Chicago decision there is a strong indication that in appropriate circumstances the Board may utilize the 50-percent test of Duke II with respect to jurisdictional issues arising in unfair labor practice proceedings. In the instant case if the 50-percent rule is applied to Respondent's security guards they are clearly employees of the hospital excluded by operation of Section 2(2) and (3) even if General Counsel's second argument has merit, i.e., Respondent is a college over which the Board would assert jurisdiction operating a hospital as an appendage. However, I also find no merit to the contention that in this case Respondent is a college over which the Board CHICAGO COLLEGE OF OSTEOPATHIC MEDICINE has jurisdiction under its Cornell University standards. In reality, based upon all the evidence in the record, Respondent is a hospital operating a graduate school of osteopathic medicine as one of several key segments of its overall medical services. The circumstances presented here are more closely aligned to the facts presented in Cleveland Clinic and Loyola University than to those decisions cited by General Counsel. The Loyola case in particular seems to indicate the correctness of a decision that jurisdiction cannot be asserted here, since in that case the Board declined to take jurisdiction even over a university's medical school and hospital which was functionally and geographically separated from the other facilities of the university. I therefore find and conclude that no jurisdiction exists over Respondent in this case, and will recommend that the complaint be dismissed accordingly. IV THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Alleged Violations of Section 8(a)(1) of the Act Based on the credited testimony of Roy Black, a representative for Local 743, and security guard William Bennett, the union's organizing drive at Respondent began May 18 or 19, 1973, when Bennett phoned and invited Black to discuss the union with other guards on a Sunday at 1 p.m. At this meeting, held in the front lobby of the college center at 53rd and University without Respondent's knowledge or permission, Black talked with Bennett and Sidney Thomas about Local 743. Both men signed authorization cards and agreed to set up a meeting with other guards. They were given some blank authorization cards to distribute together with information about the forthcoming meeting which was held around the first of June. A second meeting was held at the same place a week or so later, after Connie B. Stewart had been discharged on June 5. Four witnesses called by the General Counsel testified that they had personally been interrogated concerning their union activities and sympathies by Chief of Security Eugene Irvin, Sr., in his office. Thus, Henry Davis stated that during the last half of June Irvin asked him why he wanted a union, to which Davis replied he had nothing against Irvin, but thought he would gèt better working conditions from the administration. Louie Donald testified that a week after he signed a card on May 26, Irvin asked him (in the presence of Sergeant Leonora Ludy) how he liked his job, if he was a man and needed a union to represent him, if he had heard about a Union, and if he'd signed a card. Then Donald remarked that the University had a union, to which Irvin answered, "go to the University and apply for a job." Then Irvin asked Donald to sign a paper repudiating the Union, and Donald refused. Subsequently, around the first of June, Irvin again talked to Donald in the office in Ludy's presence. The occasion for the interview was to tell Donald that his 90-day probationary period was up and that he would receive his 90-day raise. Irvin said that Donald did not need the Union to get the raise he was receiving. Irvin would fight for the people who had 4 183 NLRB 329 (1970) signed the paper against the Union, so they have jobs, but those who don't are probably going to be without a job. 5 The findings of fact contained in this section shall be applicable in the event jurisdiction IS asserted contrary to the finding set forth in sec. III In the first part of May 1974 after Donald had been talking to an employee named Collins, who was a steward for another union in the hospital, Irvin told Donald in the office in Ludy's presence that he should not talk to Collins because he was a "troublemaker." Donald responded that "no one tells me who to talk to," whereupon Irvin remarked that if another union tried to get in, he would get an agency in there and wouldn't be bothered by that. Cheryl Vaxter (also referred to in the record as Carol Vaxter) testified that sometime during May or June in the office, Chief Irvin asked her what she thought about the Union. She replied she had not thought about it, to which Irvin responded that he had arranged it so that his officers were starting at $3.15 an hour, but that their wages could be dropped if the Union came in because the starting rate under the Union was $2.50 an hour. Joseph Taylor testified that within a week after he signed a union card on May 19, Irvin approached him one morning as he was opening the door of the clinic, and asked what happened at the union hall. Taylor answered he did not know. Irvin then asked if Taylor went to any union meetings, and Taylor answered no. Then Irvin asked if Taylor learned or heard anything, could he count on being informed. Taylor refused and Irvin said "I see what kind of security officers I have." Six witnesses called by the General Counsel and one called by Respondent testified concerning two meetings of security guards called by Respondent in June, at which the subject of the union was raised. According to William Bennett, Henry Davis, Louie Donald, Carol Vaxter, Percy Johnson, Joseph Taylor, and Malcom R. Taylor, at the first meeting, held in early June in a seminar room of the hospital shortly after the discharge of Stewart, Sergeant Leonora Ludy came into the room and, while everyone was waiting for Irvin to arrive, asked who was for the union and who was not. Upon receiving no answer she issued instructions that those who were for the union should sit on one side of the table, and those that were against the union should sit on the other side. Some employees moved and some did not. At the second meeting, Willie Donald and Percy Johnson remembered that Irvin read a letter from the union, claiming to represent the guards and requesting to meet with Irvin after which he remarked that he did not care which way it went and for the guards to do what they wanted. Joseph Taylor testified that Irvin then said they would have to pay from $90 to $92 per month union dues, and in addition pay the funeral expenses of union officials. According to Joseph Taylor and Henry Davis, Irvin ended by saying he had a list of some of the men's signatures on a statement to the effect that these men opposed the union, that the statement would be turned over to the front office, and if any of the rest of the men changed their minds, they should give their names to Sergeant Ludy. Finally the General Counsel presented testimony by William Bennett, Henry Davis, Louie Donald, and Cheryl Vaxter, concerning shift changes, assignment changes, and an DECISIONS OF NATIONAL LABOR RELATIONS BOARD increased number of clock rounds after the advent of the Union.6 Irvin denied having any private conversation with any employee about the Union. Ludy testified that she did recall attending a private conference between Chief Irvin and Willie Donald, but did not recall the Union having been discussed. In addition Ludy also testified that she had not observed or overheard Irvin interrogate any employee about the Union from June 1973 until June 1974. Ludy admitted that at the first June staff meeting she ordered the guards to separate themselves on opposite sides of the table according to their views about the Union. She stated that no one changed places and that shortly afterwards, Irvin arrived, but left immediately when she informed him that the guards wanted to talk about the Union.' Irvin testified in agreement with Ludy's version. Concerning the second meeting Irvin testified that he read a list of names of those who had completed law enforcement courses at Loop College, and solicited names of those who wished to enroll in such courses. He denied discussing any list of names in connection with the Union. He then read a letter from the Union demanding recognition after which he announced he was going to read to them what he had to say about the Union. Irvin testified that he then read word for word, the text of a document entitled "Supervisors' Instructions for Election Campaign, which contains a list of 49 do's and don'ts for supervisors in connection with organizational drives. He then adjourned the meeting. Ludy corroborated Irvin's testimony to the extent that she agreed he read a list of do's and don'ts, but testified that he altered the wording by beginning each item with the words "In my opinion" or "I do believe." The remainder of testimony differs from Irvin's considerably in that it omits any reference to a list of names in connection with Loop College courses or to reading a letter from the Union demanding recognition. Instead, Ludy says Irvin discussed a change of status form for wage increases, and a food program he had instituted. I credit the testimony of Davis, Donald, Vaxter, Bennett, Johnson, Malcom Taylor, and Joseph Taylor over that of Irvin and Ludy about the conversations and meetings. Although the testimony of these seven witnesses contains some isolated variations and inconsistencies, their testimony as well as their demeanor has the ring of truth in it which the testimony and demeanor of Irvin and Ludy simply do not have. Irvin, particularly, was evasive on cross-examination. His answers displayed a lack of candor and his entire demeanor was that of someone who has something he wishes to hide. Ludy, whose recollection faded at critical points in her testimony, was obviously merely attempting to corrobarate her superior. I therefore find that Irvin and Ludy did interrogate employees concerning their union sympathies and desires, and that Irvin did threaten employees with discharge because of their union activities, and unlawfully instructed employee Donald not to talk to a steward of another union. I do not find Irvin's statement to Vaxter to the effect that "wages could be dropped if the union came in because the starting rate under the union was $2.50 an hour," to constitute an unlawful threat of loss of benefits as alleged in the complaint. Nor do I find that the General Counsel has sustained his burden of proof with respect to the allegation that the shift changes and increased clock rounds were instituted for a discriminatory reason, in the face of testimony establishing that in early June there were many such changes affecting prounion and antiunion employees alike. 6 A clock round may be defined as one complete circuit of the assigned patrol route, during which the officer registers his presence at certain points called stations by turning a key in the clock recording device called a "detex clock" located at each station , General Counsel contends and Respondent agrees that Ludy, then a sergeant, was at this time a supervisor within the meaning of the Act I so find, based on evidence in the record that Ludy and other sergeants are in charge of shifts, give binding instructions to guards, and exercise authority to change guards from one patrol area to another and to alter the time when they are to punch out. 8 Resp Exh 6 B. The Discharge of Connie B. Stewart The facts surrounding Stewart's discharge are, for the most part, not in dispute. The main factual issue, that of the official routine for training a new guard for a new route, I have resolved in Stewart's favor, since both logic and the testimony of other officers who have performed the training function indicate the correctness of Stewart's testimony. Nevertheless, I find that the General Counsel has failed to prove that Stewart's discharge under the circumstances presented was because of his union sympathies and activities, and not for I find and conclude that Connie B. Stewart was not discharged in violation of Section 8(a)(3) and (1) of the Act as alleged in the complaint, but rather was terminated for refusing to perform a reasonable instruction by his superior. Stewart was employed as a security guard by Respondent from June 8, 1970, until June 5, 1973. His assignment was to patrol the college buildings separate from the hospital. Normally, a clock round took about 15 minutes to perform. Stewart signed a union card for William Bennett at the college, talked to other rank-and-file guards about the Union, and attended two union meetings. On June 5, Stewart worked the 3 to 11 shift, finishing his last clock round about 11:20 p.m. Stewart was scheduled to be relieved by officer Joseph Taylor, who failed to report for work. The result was that Ronald Taylor, an officer, not familiar with the patrol route at the college, was assigned as a replacement. Stewart was instructed to show Ronald Taylor the route, the detex key stations, and the doors which should be locked, but to punch out at 11:30. Stewart refused because his shift was supposed to end at 11:30. Sergeant Taylor then called Chief Irvin in Stewart's presence, and Irvin told Stewart to break Ronald Taylor in, whereupon Stewart asked Irvin if he thought he was crazy, and hung up the phone. Stewart left at 11:36 after only showing Ronald Taylor the four main doors and how to turn off the detex alarm, telling Taylor to sit at the desk until someone came to show him the rounds because he wasn't going to do it. The next evening Stewart was taken to Irvin's office and discharged for failing to obey Sergeant Taylor's order. 9 Based on credited testimony by Sergeant Malcom Taylor Joseph Taylor, a witness for General Counsel on other aspects of this case, confirmed that his assignment at this time was the 11 to 7 shift at the college 10 I credit Stewart's version on this point as opposed to the version of Irvin and Malcom Taylor that Stewart was instructed to show Taylor the first detex station and a list of the other stations. Stewart IS supported in this by the testimony of Bennett, Davis, and Vaxter CHICAGO COLLEGE OF OSTEOPATHIC MEDICINE cause While Irvin's position in requiring Stewart to show Ronald Taylor the clock round on the night of June 5 was undoubtedly a source of irritation to Stewart, 1 cannot view Respondent's discharge of Taylor after refusing to perform the assigned task, which arose in the context of what might be termed emergency conditions, too harsh a discipline, even if Stewart's past unexemplary work record, in evidence, were not considered. Moreover, as strongly argued by Respondent both at the hearing at the end of General Counsel's case and again in his brief, the record reveals a deficiency in General Counsel's basic case in that there is no direct evidence that any supervisor or management official of Respondent knew of Stewart's union sympathies or activities. 11 General Counsel urges that knowledge should be inferred from surrounding facts and circumstances here including Irvin's reference to Stewart as a "troublemaker" in a postdischarge phone conversation with Roy Black. 11 During her presentation of evidence when challenged by Respondent on the lack of evidence on this issue, assurance was given that an employee witness would be called to supply this element of proof This employee, Sidney Thomas, was present at the hearing but was not called, and therefore it may be inferred that his testimony would have been unfavorable to General Counsel's case General Counsel notes that a year later Irvin used the same term in referring to a union steward with whom he cautioned Louie Donald not to converse. I do not attach the significance to these widely separated usages of the term "troublemaker" that General Counsel would have me attach to these remarks. It is readily apparent from the testimony of Roy Black and William Bennett that Stewart was not a leader in the union campaign, yet his is the only discharge alleged to be violative of the Act It IS further apparent that Stewart's past record, as documented in the record by Respondent, IS replete with a series of past infractions which, while not specifically itemized to Stewart at the time of his discharge, would reasonably have been considered by Irvin in reaching his decision to terminate Stewart, and I so find. CONCLUSIONS OF LAW 1. Local 743 IS a labor organization within the meaning of Section 2(5) of the Act. 2. Chicago College of Osteopathic Medicine is not, under the circumstances presented in the case, an employer engaged in commerce within the meaning of Section 2(2) of the Act. [Recommended Order for dismissal omitted from publication.]