St. Agnes Medical Center

146 304 NLRB No. 27 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 287 NLRB 242. 2 St. Agnes Medical Center v. NLRB, 871 F.2d 137. 3 On April 5, 1991, the Respondent filed a second motion to reopen the record in which it contends, inter alia, that the Board should reopen the record for reconsideration of the monetary award in the original Order concerning payments to union funds because, due to the passage of time, such an award would be punitive. On April 22, 1991, the General Counsel filed an opposition to the Respondent’s second motion to reopen the record. We deny the Re- spondent’s second motion as lacking in merit. 4 In addition, we shall delete from the Order those provisions in the original Order regarding conduct that the Board found to constitute unfair labor prac- tices, but which the court found not to be unlawful. 5 In this regard, the Board cited Decorel Corp., 163 NLRB 146, 149 (1967), for the proposition that the ‘‘loss of [an] election by the union [is] not a fair reflection of employee desires when [the] election was set aside based on the respondent’s objectionable conduct.’’ St. Agnes Medical Center, supra at 242 fn. 4. The results of the decertification election were 126 for the Union, 132 against, with 10 challenged ballots. The revised tally of ballots showed 126 for and 138 against the Union. 6 St. Agnes Medical Center v. NLRB, 871 F.2d at 146–147. The court ob- served that an employer is only precluded from asserting a good-faith doubt ‘‘if its unfair labor practices ‘significantly contribute to such a loss of majority or to the factors upon which a doubt of such majority is based,’’’ although employer conduct that does not rise to the level of an unfair labor practice may upset the ‘‘laboratory conditions’’ required for an election and require that the election be set aside. 7 Id. 8 The court vacated four of the unfair labor practice findings of the judge which were adopted by the Board, on the ground that they were not supported by substantial evidence. Specifically, as to the preelection violations found by St. Agnes Medical Center and District 1199C, Na- tional Union of Hospital and Health Care Em- ployees, AFL–CIO St. Agnes Medical Center and Albert L. Becker, Es- quire, Petitioner, and District 1199C, National Union of Hospital and Health Care Employees, Division of RWDSU, AFL–CIO, Jointly with International Brotherhood of Firemen and Oil- ers, Local 473, AFL–CIO. Cases 4–CA–14407, 4–CA–14407–2, 4–CA–14407–3, 4–CA–14639, 4–CA–14639–2, 4–CA–15064, and 4–RD–1172 August 20, 1991 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 16, 1987, the National Labor Rela- tions Board issued its Decision and Order1 in this pro- ceeding, finding that the Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act. The violations found, which occurred both before and after a Board-conducted election, included an in- terrogation, warning, threat of layoff, suspension, promise of benefits, and changes in terms and condi- tions of employment. Because of the severity and per- vasiveness of the unfair labor practices, the Board found that a bargaining order was appropriate under the test set forth in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Respondent filed a petition for review with the United States Court of Appeals for the District of Co- lumbia Circuit. On March 28, 1989, the court enforced certain of the Board’s unfair labor practice findings, reversed others, and remanded the case to the Board for consideration of two issues: whether the decerti- fication election results provided a sufficient basis for the Respondent’s asserted good-faith doubt of the Union’s majority status, and whether a Gissel bargain- ing order is appropriate.2 On June 16, 1989, the Board advised the parties that it accepted the remand and invited statements of posi- tion. Thereafter, all parties filed statements of position. In addition, the Respondent filed a motion to reopen the record for introduction of further evidence regard- ing turnover of management and employees. We deny that motion as it would not alter our decision on re- mand as set forth below.3 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered its original decision and the record in light of the court’s remand, which the Board accepts as the law of the case, and the parties’ statements of position and has decided to modify the Board’s original decision by deleting the Gissel bar- gaining-order requirement and directing that a second election be held.4 As to the issue of whether the Respondent violated Section 8(a)(5) by making unilateral changes after ex- piration of the contract, the Board found that the Re- spondent had a continuing obligation to bargain with the Union despite the results of a decertification elec- tion held shortly before the contract expired.5 Despite this obligation, however, the Respondent notified the bargaining unit employees the day after the contract expired that it was unilaterally granting them a sub- stantial wage increase. Consequently, the Board found that the Respondent violated Section 8(a)(5) by grant- ing the wage increase and by making other unilateral changes after the expiration of the contract. The court remanded this proceeding to the Board to reconsider whether the Respondent was free to make the unilateral changes on the ground that it had a good-faith doubt of the Union’s majority status based on the results of the decertification election. Noting that ‘‘the standards for determining whether an em- ployer can validly assert a good faith doubt and for de- termining whether an election should be set aside dif- fer greatly,’’6 the court stated that it was ‘‘troubled by the Board’s suggestion that no decertification election that is later set aside as the result of an employer’s ‘objectionable conduct’ may serve as a basis for an as- sertion of a good faith doubt.’’7 (Emphasis in original.) The court further instructed the Board to determine whether the Respondent’s preelection unfair labor practices, in light of the court’s ‘‘winnowing’’ of the violations,8 ‘‘were of a nature that would significantly 147 ST. AGNES MEDICAL CENTER the Board, the court denied enforcement to the Board’s findings that Super- visor Stanley requested employee Chambers to distribute antiunion literature in violation of Sec. 8(a)(1) and that the Respondent’s adoption of the discipli- nary guidelines violated Sec. 8(a)(5). As to the postelection violations found by the Board, the court declined to enforce the Board’s findings that Super- visor Plotkin promised employees increased benefits and that Supervisor Sams threatened employee Mobley with layoff in violation of Sec. 8(a)(1). As noted above, we shall delete from our Order the provisions relating to this conduct in our original Order. 9 Id. at 147. 10 As we are accepting the court’s remand as the law of the case, this deci- sion should not be read as agreement with the court that a good-faith doubt can be raised in this context. See W. A. Krueger Co., 299 NLRB 914 (1990). Chairman Stephens takes no position on whether W. A. Krueger Co., supra, was correctly decided. In that case the employer was not found to have com- mitted unfair labor practices or objectionable conduct of any kind prior to the decertification election. The issue was whether the employer violated Sec. 8(a)(5) and (1) of the Act by making unilateral changes in terms and condi- tions of employment in the period between the initial announcement of the ballot tally showing the union’s loss and the Board’s final order overruling the union’s election objections and certifying the election results. In the present case, as noted, we are setting aside the election for reasons that the remanding court agrees are entirely sufficient, and, pursuant to the require- ments of the remand, we are making an additional finding that the unfair labor practices were likely to ‘‘cast doubt on the validity of the election as a fair reflection of employee sentiment.’’ 11 As the court noted, an employer’s obligation to bargain with the exclusive bargaining representative of its employees extends beyond the expiration of the collective-bargaining agreement unless the employer can show that it has a good-faith doubt of the union’s continued majority status. Because we find that the Respondent has not rebutted the presumption in favor of the Union’s con- tinuing majority status, we shall include in the Order a provision that the Re- spondent bargain in good faith with the Union. In this regard, we note that the affirmative bargaining language in the Board’s original decision is appro- priate as the traditional remedy for the Respondent’s 8(a)(5) violations in light of its continuing obligation to recognize the Union’s current incumbent status, pending the results of the second election. This traditional remedy is separate and distinct from the extraordinary remedy of a Gissel bargaining order to the exclusion of a rerun election. See Angelica Corp., 276 NLRB 617, 617 fn. 2 (1985). 12 St. Agnes Medical Center v. NLRB, supra at 147–149. Because we con- clude that a Gissel bargaining order is not warranted, we find it unnecessary to apply the analysis set out in Peoples Gas, supra. undercut employee support for the Union and thus cast doubt on the validity of the election as a fair reflection of employee sentiment.9 Accepting the court’s remand as the law of the case,10 we have reexamined the Respondent’s preelection unfair labor practices found by the Board and affirmed by the court and conclude that they were sufficiently serious to significantly undercut employee support for the Union and thus cast doubt on the valid- ity of the election results. In this regard, we emphasize that prior to the election the Respondent subjected em- ployee Porter to onerous working conditions and sus- pended employee James because of their union activi- ties and that the Respondent’s actions in this regard were widely publicized among the unit employees. We also emphasize that on the day before the election the Respondent promised unit employees increased bene- fits to discourage them from supporting the Union. In these circumstances, we find that the Respondent’s sin- gling out of union supporters for punishment combined with its promise of more favorable working conditions if the Union lost the election, acts which were widely disseminated among the unit employees, clearly con- veyed to the employees that they must choose between ‘‘the carrot and the stick.’’ Accordingly, we conclude that the Respondent cannot rely on the results of the election to support its contention that it had a good- faith doubt of the Union’s majority support. Con- sequently, we reaffirm the Board’s finding in its origi- nal decision that the Respondent violated Section 8(a)(5) when it unilaterally changed the terms and con- ditions of employment on expiration of the collective- bargaining agreement.11 As to the second issue, whether a Gissel bargaining order is warranted, the Board concluded in its original decision that a bargaining order was the only reason- able remedy that could restore the status quo as it ex- isted prior to the election in the circumstances as found by the judge. In this regard, the Board noted that the Respondent’s unlawful acts of interference, coercion, and discrimination were engaged in by high manage- ment officials over the course of several months and that they affected every member of the bargaining unit. The Board emphasized, however, that it found the Re- spondent’s postelection conduct ‘‘most significant’’ in concluding that a Gissel bargaining order was war- ranted. In this regard, the Board found that the Re- spondent’s postcontract-expiration grant of the substan- tial wage increase, discussed above, would continue to give the Respondent an unfair advantage in a new election because of the ‘‘lingering effect’’ that the wage increase would have on the employees. In these circumstances, the Board concluded that the imbalance could be corrected only by giving the Union an oppor- tunity to resume its role as collective-bargaining rep- resentative and that a Gissel bargaining order should issue. In its remand, the court directed the Board to reas- sess the cumulative impact of the Respondent’s viola- tions, especially in light of the court’s reversal of some of the unfair labor practice findings and ‘‘to justify this extreme remedy’’ under the analysis in Peoples Gas System, Inc. v. NLRB, 629 F.2d 35, 38 (D.C. Cir. 1980).12 Specifically, the court directed that the Board ‘‘explicitly determine whether traditional remedies can erase the effects of the unfair labor practices and en- sure a fair rerun election.’’ In making this assessment, we must initially take ac- count of the fact that the court has characterized the violations which it upheld as a matter of the Respond- ent’s ‘‘step[ping] over the line a number of times’’ in the course of a campaign that was ‘‘vigorously con- tested by both sides.’’ Further, in our view the 8(a)(1) violations upheld by the court were of the type that can be adequately remedied by the customary notice- posting and cease-and-desist orders. See M. A. Indus- tries, 285 NLRB 1140, 1147 (1987). There were no plant closure threats (cf. NLRB v. Sinclair Co., 397 F.2d 157 (1st Cir. 1968), affd. sub nom. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)); and nothing 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in the record indicates that the Respondent will renew its unlawful restrictions on the campaign efforts of the Union’s supporters. In complying with the affirmative relief granted in our Order, the Respondent will be, to the extent possible, restoring the status quo ante as to its unilateral change violations. With respect to the postelection wage increase, we construe the court’s re- mand order as not permitting us to give that significant weight unless we can find that it was more substantial than the wage increase at issue in Angelica Corp., 276 NLRB 617 (1985). We cannot make that finding. Fi- nally, we note that no employees were discriminatorily discharged and that the unlawful 3-day suspension of Union Steward James was rescinded before the unfair labor practice hearing in this case, pursuant to a griev- ance settlement that was entered into without prejudice to the Union’s ability to file an unfair labor practice charge with the Board. Accordingly, we conclude that a Gissel bargaining order is not required in this case, and we shall delete the corresponding language from our original Order, reopen the representation proceed- ing, and direct that a second election be held once the unfair labor practices found have been remedied. ORDER The National Labor Relations Board orders that the Respondent, St. Agnes Medical Center, Philadelphia, Pennsylvania, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Maintaining a rule that precludes the unauthor- ized solicitation of employees on St. Agnes Medical Center’s premises for any purpose. (b) Maintaining a rule that precludes the distribution of nonwork-related materials without prior approval of the Hospital. (c) Coercively interrogating employees about their union sympathies. (d) Promising employees that their previously re- duced hours will be restored in order to discourage them from supporting the Union. (e) Threatening employees with layoff in disregard of established seniority and layoff policies. (f) Discouraging membership in District 1199C, Na- tional Union of Hospital and Health Care Employees, Division of RWDSU, AFL–CIO, jointly with Inter- national Brotherhood of Firemen and Oilers, Local 473, AFL–CIO (collectively the Unions) by discriminatorily informing employees that they are being watched, changing their lunch and breaktimes, escorting them whenever they leave their department, including escorting them to the toilet, and changing their job assignments to restrict and confine them to their department and, further, by discriminatorily sus- pending employees. (g) Failing and refusing to bargain in good faith with the Union as the exclusive bargaining agent of its employees in the following appropriate unit by failing to contribute to the Union’s training fund on behalf of the unit employees and to submit the required reports to the fund as required by the collective-bargaining agreement; by similarly failing to contribute to the legal services fund on behalf of the unit employees and to submit the required reports to the fund; by failing and refusing to transmit to the Union dues deducted from unit employees’ wages for the months of April, May, and June 1984 as required by the collective-bar- gaining agreement; by imposing restrictions on the Union’s contractual right of access to the Hospital by refusing access, changing locks on a bulletin board, and removing the bulletin board; by unilaterally con- tinuing to fail to contribute to the training fund and legal services fund; by unilaterally implementing a wage increase for unit employees; by unilaterally lay- ing off employees Johnson, Vereen, and Roberson in violation of job seniority layoff procedures; and by unilaterally failing and refusing to process a grievance filed by the Union concerning employee Moss in ac- cordance with grievance procedures. The appropriate bargaining unit is as follows: All full-time and regular part-time service and maintenance employees, telemetry technicians, burn technicians, phlebotomists technicians, LPNs by waiver and ICU technicians employed by St. Agnes Medical Center at its 1900 South Broad Street, Philadelphia, Pennsylvania facility; exclud- ing all other employees including professional employees, technical employees, LPGNs, RNs, of- fice clericals, guards and supervisors as defined in the Act. (h) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind and abrogate its no-solicitation/no-dis- tribution rules found unlawful in this decision. (b) Insofar as it has not already done so, make whole employees Porter and James for any loss of earnings that they may have suffered, with interest, as a result of the Hospital’s discriminatory action found unlawful in this decision, in the manner set forth in the remedy section of the judge’s decision. (c) Remove from its files any reference to the dis- ciplinary actions against employees Porter and James and notify them in writing that this has been done and that evidence of these unlawful disciplinary actions will not be used as a basis for future personnel actions against them. (d) Insofar as it has not already done so, make the required contributions to the Union’s training and legal 149 ST. AGNES MEDICAL CENTER 13 If this Order is enforced by a judgment of a United States court of ap- peals, 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.’’ services fund and remit to the Union deducted dues, together with the related reports, as provided in the remedy section of the judge’s decision. (e) Restore the union bulletin board, as provided in the remedy section of the judge’s decision. (f) Insofar as it has not already done so, offer imme- diate and full reinstatement to employees Johnson, Vereen, and Roberson to their former jobs or, in the event their former jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges. Make them whole for any loss of earnings they may have sustained as a result of the Hospital’s unlawful refusal to follow its seniority layoff procedures, with interest, as provided in the remedy section of the judge’s decision, and comply with these and related seniority layoff procedures. (g) Process the grievance pertaining to the discharge of employee Moss in accordance with the grievance procedures. (h) On request, bargain in good faith with the Union as the exclusive bargaining representative of its em- ployees in the above appropriate unit and, if an under- standing is reached, embody that understanding in a signed agreement. (i) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (j) Post at its Philadelphia, Pennsylvania facility copies of the attached notice marked ‘‘Appendix.’’13 Copies of the notice, on forms provided by the Re- gional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (k) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that Case 4–RD–1172 is re- opened and that all prior proceedings held thereunder are reinstated. IT IS FURTHER ORDERED that Case 4–RD–1172 is severed and remanded to the Regional Director for Re- gion 4 for the purpose of conducting a second election pursuant to the direction set forth below. [Direction of Second Election omitted from publica- tion.] APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT maintain a rule that precludes the un- authorized solicitation of employees on St. Agnes Medical Center’s premises for any purposes. WE WILL NOT maintain a rule that precludes the dis- tribution of nonwork-related materials without prior approval of the Hospital. WE WILL NOT coercively interrogate employees about their union sympathies. WE WILL NOT promise employees that their pre- viously reduced hours will be restored in order to dis- courage them from supporting the Union. WE WILL NOT threaten employees with layoff in dis- regard of established seniority and layoff policies. WE WILL NOT discourage membership in District 1199C, National Union of Hospital and Health Care Employees, Division of RWDSU, AFL–CIO, jointly with International Brotherhood of Firemen and Oilers, Local 473, AFL–CIO (collectively the Unions) by discriminatorily informing employees that they are being watched, changing their lunch and breaktimes, escorting them whenever they leave their department, including escorting them to the toilet, and changing their job assignments so as to restrict and confine them to their department and, further, by discriminatorily suspending employees. WE WILL NOT fail and refuse to bargain in good faith with the Union as the exclusive bargaining agent of our employees in the following appropriate unit by failing to contribute to the Union’s training fund on behalf of the unit employees and to submit the re- quired reports to the fund as required by the collective- bargaining agreement; by similarly failing to contribute to the legal services fund on behalf of the unit employ- ees and to submit the required reports to the fund; by 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD failing and refusing to transmit to the Union dues de- ducted from unit employees’ wages for the months of April, May, and June 1984 as required by the collec- tive-bargaining agreement; by imposing restrictions on the Union’s contractual right of access to the Hospital by refusing access, changing locks on a bulletin board, and removing the bulletin board; by unilaterally con- tinuing to fail to contribute to the training fund and legal services fund; by unilaterally implementing a wage increase for unit employees; by unilaterally lay- ing off employees Johnson, Vereen, and Roberson in violation of job seniority layoff procedures; and by unilaterally failing and refusing to process a grievance filed by the Union concerning employee Moss in ac- cordance with grievance procedures. The appropriate bargaining unit is as follows: All full-time and regular part-time service and maintenance employees, telemetry technicians, burn technicians, phlebotomists technicians, LPNs by waiver and ICU technicians employed by St. Agnes Medical Center at its 1900 South Broad Street, Philadelphia, Pennsylvania facility; exclud- ing all other employees including professional employees, technical employees, LPGNs, RNs, of- fice clericals, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind and abrogate the no-solicitation/no- distribution rules found unlawful in the Board’s deci- sion. WE WILL, insofar as we have not already done so, make whole employees Porter and James for any loss of earnings they may have suffered, with interest, as a result of the Hospital’s discriminatory action found unlawful in this decision, in the manner set forth in the decision. WE WILL remove from our files any reference to the disciplinary actions against employees Porter and James and notify them in writing that this has been done and that evidence of these unlawful disciplinary actions will not be used as a basis for future personnel actions against them. WE WILL, insofar as we have not already done so, make the required contributions to the Union’s training and legal services fund and remit to the Union de- ducted dues, together with the related reports, as pro- vided in the decision. WE WILL restore the union bulletin board, as pro- vided in the decision. WE WILL, insofar as we have not already done so, offer immediate and full reinstatement to employees Johnson, Vereen, and Roberson to their former jobs or, in the event their former jobs no longer exist, to sub- stantially equivalent jobs, without prejudice to their se- niority or other rights and privileges, and WE WILL make them whole for any loss of earnings, with inter- est, they may have sustained as a result of the Hos- pital’s unlawful refusal to follow its seniority layoff procedures, as provided in the decision, and WE WILL comply with these and related seniority layoff proce- dures. WE WILL process the grievance pertaining to the dis- charge of employee Moss in accordance with the grievance procedure. WE WILL, on request, bargain in good faith with the Union as the exclusive bargaining representative of our employees in the above appropriate unit and, if an un- derstanding is reached, embody that understanding in a signed agreement. ST. AGNES MEDICAL CENTER