Presbyterian Community Hospital

PRESBYTERIAN COMMUNITY HOSPITAL Presbyterian Community Hospital and Union de Empleados de Hospitales de Puerto Rico and Office and Professional Employees International Union, Local 462, AFL-CIO, Party to the Con- tract. Case 24-CA-3774 June 29, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On March 30, 1977, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order except as modified herein.l Respondent apparently concedes that it violated Section 8(a)(2) and (1) of the Act by executing a 3- year collective-bargaining agreement with Office and Professional Employees International Union, Local 462, AFL-CIO (hereinafter Local 462) on September 30, 1976, although it had been advised that Local 462 no longer represented a majority of the employees in the bargaining unit. However, Respondent excepts to the Administrative Law Judge's finding that it unlawfully maintained and enforced said contract in all respects. Respondent takes the position that, although it honored the union-security and dues- checkoff provisions of the agreement,2 it did not otherwise implement the contract, including its wage and fringe benefit terms. 3 We agree with Respondent that the record fails to disclose that it put into effect the September 30, 1976, contract, except for the articles relating to union security and dues checkoff. But we find that evidence that these two articles of the contract were observed is sufficient to satisfy the allegation of the complaint that Respondent maintained and enforced the I In par. I(c) of his recommended Order, the Administrative Law Judge provides that Respondent shall cease and desist from "in any like or related manner" infringing upon employee rights guaranteed in Sec. 7 of the Act. However. in cases of this kind, involving a violation of Sec. 8(aX3), it is the Board's established policy to use the broad injunctive language "in any other manner." See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Accordingly, we shall modify the Administrative Law Judge's recommended Order and notice to conform his injunctive language to that customarily used by the Board. 2 Respondent, however, placed the dues collected from employees under the contract in escrow, rather than paying the money to Local 462. 230 NLRB No. 80 collective-bargaining agreement. General Counsel need not establish that each and every term of such an illegal agreement was enforced. Respondent also excepts to the following language contained in the section of the Administrative Law Judge's Decision entitled, "The Remedy,": "Nothing contained herein shall be construed as requiring the Hospital to vary the wages, hours, seniority, or other substantive terms of employment which the Hospital has established in the performance of said contract, or to prejudice the assertion by its employees of any right that they may have thereunder." Respondent excepts further to similar language used in paragraph l(b) of the Administrative Law Judge's recommend- ed Order. Respondent contends that such language might be interpreted as requiring it to pay retroac- tively to employees the wage rates and fringe benefit levels specified in the September 30, 1976, collective- bargaining agreement. The intent and purpose of the language called into question by Respondent is to insure that the Decision and Order is not construed as requiring Respondent to change or vary any wage, hour, seniority, or other substantive terms of employment which it may have established in the performance of the illegal contract. The language in issue is not intended or designed to require Respondent to observe retroactively, or prospectively, the substantive provi- sions of the contract. However, to resolve any ambiguity, we hereby modify the last sentence of the second paragraph of "The Remedy," section of the Administrative Law Judge's Decision to read as follows: "Nothing contained herein shall be con- strued as requiring Respondent to abandon or vary any wage, hour, seniority, or other substantive terms of employment which it may have established in the performance of said contract." We shall similarly modify paragraph l(b) of the recommended Order and the Notice. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Presbyterian Community Hospital, Santurce, Respondent does not except to the Administrative Law Judge's finding that it violated Sec. 8(aX3) by including a union-security clause in the contract. 3 We hereby deny Respondent's request that the record be reopened to receive a sworn statement from its comptroller averring that Respondent did not implement the wage and fringe benefit provisions of the September 30, 1976, agreement, as Respondent has shown no reason why such evidence was not offered at the hearing. 599 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) Giving effect to its collective-bargaining contract with said Local 462 executed on September 30, 1976, or any renewal, extension, or modification thereof; provided, however, that nothing contained herein shall be construed as requiring Respondent to abandon or vary any wage, hour, seniority, or other substantive terms of employment which it may have established in the performance of said contract." 2. Substitute the following for paragraph l(c): "(c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize Office and Professional Employees International Union, Local 462, AFL- CIO, as the exclusive collective-bargaining repre- sentative of our licensed practical nurses and technicians, unless and until said Local 462 demonstrates its majority status in a Board- conducted election among such employees in an appropriate unit. WE WILL NOT give effect to our collective- bargaining contract with said Local 462 executed on September 30, 1976, or any renewal, extension, or modification thereof; provided, however, that we are not required to abandon or vary any wage, hour, seniority, or other substantive terms of employment which we may have established in the performance of said contract. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL reimburse all our present and former employees for all initiation fees, dues, or other moneys paid or withheld pursuant to the contract executed on September 30, 1976, or any exten- sion, renewal, modification, or supplement there- of, or any superseding agreement, with interest at 6 percent per annum, computed quarterly. PRESBYTERIAN COMMUNITY HOSPITAL DECISION STATEMENT OF THE CASE MARVIN RoTH, Administrative Law Judge: This case was heard at Hato Rey, Puerto Rico, on January 24, 1977. The charge was filed on October 1, 1976, by Union de Empleados de Hospitales de Puerto Rico (herein called U.E.H.). The complaint, which issued on November 30, 1976, and was amended at the hearing, alleges that Presbyterian Community Hospital (herein called the Hospital or Respondent), violated Section 8(aXl) and (2) of the National Labor Relations Act, as amended. The gravamen of the complaint is General Counsel's contention that the Hospital violated Section 8(a)(2) by negotiating, executing, and thereafter maintaining and enforcing a collective-bargaining contract with the Office and Profes- sional Employees International Union Local 462, AFL- CIO (herein called Local 462), the incumbent Union, notwithstanding that the Hospital had actual knowledge that a majority of its employees no longer wished to be represented by Local 462. The answer, as amended at the hearing, denies the commission of the alleged unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evidence, to argue orally, and to file briefs. Upon the entire record in this case and from my observation of the demeanor of the witnesses, and having considered the arguments of counsel and the briefs submitted by General Counsel and by Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Puerto Rico corporation, maintains a proprietary hospital at Santurce, San Juan, Puerto Rico, where it is engaged in providing hospital and medical services and related services. The Hospital has an annual gross volume of business in excess of $250,000, and in the course of its business annually receives at the Hospital goods and materials valued in excess of $50,000 directly from States of the United States other than the Common- wealth of Puerto Rico. I find, as the Hospital admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED The parties do not dispute the fact that Local 462 is a labor organization within the meaning of the Act. The Hospital contends that U.E.H. is not a statutory labor organization because, in the past, it has represented only employees of the Commonwealth of Puerto Rico or of its political subdivisions. The question is not material to the merits of the present case, because, as will be discussed, General Counsel's case does not rest on any assertion that the Hospital was confronted by rival claims of representa- tion. In any event, the uncontroverted evidence in this case indicates, and I so find, that U.E.H. is a statutory labor organization. U.E.H. has filed two election petitions (one of which is presently pending) seeking an election among 600 PRESBYTERIAN COMMUNITY HOSPITAL the Hospital's employees for the purpose of representing them and in support of those petitions, and has solicited and obtained union authorization cards from among those employees. Therefore, U.E.H. is an organization in which employees participate and which exists for the purpose of engaging in collective bargaining with employers. As U.E.H. is willing to represent the Hospital's employees, it is immaterial that U.E.H. has not previously represented employees covered by the Act. Trenton Foods, Inc., 101 NLRB 1769, 1770 (1952); Plains Cooperative Oil Mill, 123 NLRB 1709, 1710, fn. 2 (1959). 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Since on or before October 1, 1973, the Hospital has recognized Local 462 as the collective-bargaining represen- tative for a unit of licensed practical nurses and technicians employed in various departments of the Hospital.' On or about October 1, 1973, the Hospital and Local 462 executed and thereafter maintained a contract covering the unit employees which by its terms was effective from October 1, 1973, through September 30, 1976. The contract contained a lawful union shop provision and further provided for employer checkoff of union dues and initiation fees. During the month of September 1976, there was a maximum of 103 employees in the recognized unit. During June 19762 there was considerable discontent among the employees concerning the manner in which Local 462 was representing, or ostensibly failing to represent, their interests. Employees, led by practical nurse Ada Diaz, sought to displace Local 462 with another union. However, they found their efforts thwarted by the intricacies of Board law. On July 22, in Case 24-RC-5813, U.E.H. filed a petition for an election. On July 29, the Regional Director, acting on the authority of Trinity Lutheran Hospital, et al., 218 NLRB 199 (1975), dismissed the petition because it had not been filed during the 90- to 120-day period prior to expiration of the contract, which period is applicable to health care institutions. Thereafter the employees tried another approach. On August 13, Diaz presented Hospital Personnel Director Martienzo with a letter, signed by 65 employees, stating that "we, employees of the Presbyterian Hospital and members of the Union O.P.E.I.U. Local 462, want the deduction of dues for said union to be discontinued. Starting from August 31, 1976." The letter had been prepared by Diaz. Martienzo told her that the employees should accept the contract as it was. Undaunted, Diaz and other employees decided to file a deauthorization (UD) petition with the Board. However, Diaz had overlooked one detail. The Hospital had retained I The unit, which is defined in the 1973 contract between the parties, consists of: "Licensed practical nurses, operating room technicians, orthopedics technicians, physiotherapy technicians (excluding physiothera- pists) and cytology technicians (excluding cytotechnologists)... Excluded from the . . . unit are the administrators, executives, superior directors, professional employees excluded by law, operation and maintenance employees, secretaries to the administrator, secretary to the asst.-administra- tor, secretary to the comptroller, messengers, seamstresses, watchmen, drivers, housemothers, and helpers, personnel office clerks, and any other persons with authority to hire, discharge. promote, discipline or otherwise alter the status of the employees or make recommendations to such effect, as defined by law." No issue is presented as to the appropriateness of the unit. the employees' letter and Diaz had neglected to make and retain a copy of the letter with signatures. She then prepared another letter, solicited the signatures of as many of the original signers as she could locate, and as to those she could not locate or did not have time to reach, she inserted their names herself. Late that afternoon, practical nurse Anna Maria Gonzales, in her behalf and other employees, filed the deauthorization petition in Case 24- UD-166, accompanied by the substituted letter.3 A deauthorization election was conducted on September 15. Of approximately 90 eligible voters, 63 voted for deauthori- zation, none against, and I ballot was challenged. On September 22 Local 462 filed timely objections to the conduct of the election. The objections were pending disposition on December 28, when with the approval of the Regional Director the UD petition was withdrawn. In the meantime, on September 16, the day after the deauthorization election, a group of unit employees met with Ada Anduze, who, until September 23, was assistant to the administrator and chief spokesperson for the Hospital in bargaining negotiations. The employees learned for the first time that the Hospital and Local 462 were in the process of negotiating a new contract. They protested that International Representative Amgamiro "Jimmy" Diaz had selected nurse Vivian Ortiz to represent them as their delegate in the negotiations, although Ortiz was a relatively new employee who worked on the night shift and allegedly was not familiar with the views of most of the employees. The employees requested a meeting of all interested parties, including the employees' attorney. Anduze replied that she had no authority to request such a meeting, and that she could not stop checkoff of Local 462 dues until appropriate notice was received from the Board. Once again the employees took action, but this time they utilized a greater degree of professional assistance. Their attorney prepared a petition, addressed to the Hospital, stating that as of September 17 they were withdrawing authority from Local 462 to represent them and from the Hospital to deduct dues, that they requested that no contract be negotiated, and that the Hospital would be responsible for the consequences if negotiations continued. This time, carbon copies were attached to the document. On September 17 nurse Diaz, with the assistance of other employees, solicited and obtained the signatures of 72 unit employees on the petition; i.e., a majority of the employees in the unit. Diaz brought the petition to Anduze's secretary. On September 22 Anduze turned over the petition to the Hospital's attorney. The Hospital never questioned the authenticity of the petition. Indeed, An- duze's transmittal memo conceded that fact. Anduze informed Hospital attorney Rodriguez that the petition was a list of O.P.E.I. nurses' signatures, and was "self-explana- 2 All dates herein are in 1976 unless otherwise indicated. a This explains the hopelessly inconsistent testimony of Diaz, who was attempting to conceal what she had done, and further explains why Gonzales and nurse Juana Vasquz Cora, who had both signed the original letter, were unable to identify their signatures on the substitute. In fact, the Hospital never doubted the authenticity of the original, and Hospital counsel conceded that the substitute corresponded to the original. General Counsel presented the substitute in evidence. The Hospital had the original in its possession at the present hearing, but did not offer it into evidence, thereby impliedly conceding its authenticity. 601 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tory." The Hospital's attorney conceded at the present hearing that the Hospital was not questioning the validity of the signatures, but was simply raising a question as to the legal significance of the petition.4 Nevertheless, despite the petition and the subsequent protests of nurse Juana Vasquz Cora, who complained to Anduze's successor, William Torruellas Muniz, the Hospital continued to negotiate and on September 30 executed a new 3-year contract with Local 462. Indeed, Torruellas conceded to her that Local 462 was violating the employees' rights. The new contract contained a more stringent union-security clause than the 1973 contract, and likewise provided for checkoff of union dues and initiation fees. The Hospital continued to deduct dues from the employees' paychecks; however, in view of the outstanding charge, the Hospital placed such moneys in an escrow account rather than turn the money over to the Union. In all other respects, the Hospital has continued to maintain and give effect to the contract. B. Concluding Findings Upon the foregoing facts, I find that the Hospital continued to negotiate and thereafter executed, main- tained, and enforced the new contract, notwithstanding that it knew that Local 462 no longer represented a majority of the employees in the bargaining unit. There- fore, the Hospital violated Section 8(a)(1) and (2) of the Act; and, as the contract contained a union-security clause, the Hospital further violated Section 8(aX3) of the Act. Pepsi Cola Bottling Company, 187 NLRB 15, 19 (1970), enfd. 454 F.2d 5 (C.A. 6, 1972); Hart Motor Express, Inc., 164 NLRB 382, 385 (1967); Kenrich Petrochemicals, Inc., 149 NLRB 910, 911 (1964). As Local 462 is not named as a Respondent in this case, it is immaterial whether Local 462 knew that it no longer represented a majority of the Hospital's employees at the time it executed the contract. The Hospital contends that it was privileged to execute the new contract because Local 462's representative status was not challenged during the 90- to 120-day period preceding the expiration of the 1973 contract. The difficulty with this contention is that the Board, with court approval, has held otherwise. The foregoing decisions do not, as argued by the Hospital, involve an application of the Board's Midwest Piping doctrine (63 NLRB 1060 (1945)). Rather, as held by the Board and the court in Pepsi Cola, supra, the decisions involve an application of the principle enunciated by the Supreme Court in International Ladies' Garment Workers' Union [Bernhard-Altmann] v. N.L.R.B., 366 U.S. 731 (1961), that an employer, even when acting in good faith, violates the Act by executing a collective-bargaining contract with a union which does not represent a majority of his employees. 4 Furthermore, the Hospital did not present any affirmative testimony or documentary evidence in derogation of the validity of the petition, but substantially limited itself to cross-examination of General Counsel's CONCLUSIONS OF LAW 1. The Hospital is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 462 and U.E.H. are labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing Local 462 as the sole bargaining representative of its licensed practical nurses and techni- cians and by executing a contract with Local 462 covering such employees at a time when Local 462 did not represent a majority of such employees, and by maintaining such contract in effect, the Hospital has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. 4. By including in such contract a union-security clause, the Hospital has violated Section 8(a)(1), (2), and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Hospital violated Section 8(aXl), (2), and (3) of the Act, I shall recommend that it be required to cease and desist from such violations and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Hospital be ordered to withdraw all recognition from Local 462 as the representa- tive of its practical nurses and technicians, unless and until Local 462 shall have demonstrated its majority status pursuant to a Board-conducted election among the Hospital's employees. It will also be recommended that the Hospital be ordered to cease giving force and effect to its contract with Local 462, executed on September 30, 1976, or any renewal, modification, or extension thereof. It will also be recommended that the Hospital be ordered to reimburse all present and former employees for all initiation fees, dues, or other moneys paid or withheld from employees' wages pursuant to the union-security clause in that contract, or in any extension, renewal modification, or supplement thereof, or in any superseding agreement, with interest thereon at 6 percent per annum. Nothing con- tained herein shall be construed as requiring the Hospital to vary the wages, hours, seniority, or other substantive terms of employment which the Hospital has established in the performance of said contract, or to prejudice the assertion by its employees of any right that they may have thereunder. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: witnesses. In light of the foregoing evidence and admissions by the Hospital, it was unnecessary for General Counsel to present further evidence concerning the validity of the petition. 602 PRESBYTERIAN COMMUNITY HOSPITAL ORDER 5 The Respondent, Presbyterian Community Hospital, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Recognizing Office and Professional Employees International Union, Local 462, AFL-CIO, as the exclu- sive collective-bargaining representative of its licensed practical nurses and technicians, unless and until said Local 462 demonstrates its majority status in a Board- conducted election among such employees in an appropri- ate unit. (b) Giving effect to its collective-bargaining contract with said Local 462 executed on September 30, 1976, or any renewal, extension, or modification thereof; provided, however, that nothing herein shall be deemed to require Respondent to vary or abandon any wage, hour, seniority, or other substantive terms of employment established under such contract, or to prejudice the assertion by employees of any rights they may has, thereunder. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. I 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. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Reimburse all present and former employees for all initiation fees, dues, or other moneys paid or withheld pursuant to the contract executed on September 30, 1976, or any extension, renewal, modification, or supplement thereof, or any superseding agreement, with interest at 6 percent per annum, computed quarterly. (b) Post at its premises in Santurce, San Juan, Puerto Rico, copies of the attached notice marked "Appendix." 6 Copies of the notice, in English and in Spanish, on forms provided by the Regional Director for Region 24, after being duly signed by Respondent's authorized representa- tive, shall be posted by 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. (c) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 6 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." 603