Union Hospital of Cecil County

UNION HOSPITAL OF CECIL COUNTY Union Hospital of Cecil County and Laborers' District Council, Laborers' International Union of North America, AFL-CIO, Petitioner. Case 5-RC-9639 April 19, 1977 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered the objections to an election held on June 3 and 4, 1976,1 and the Hearing Officer's report recommending disposition of same, pertinent portions of which are attached hereto. The Board has reviewed the record in light of the exceptions and briefs, and hereby adopts the Hearing Officer's findings 2 and recommendations. 3 [Direction of Second Election and Excelsior footnote omitted from publication.] IThe election was conducted pursuant to a Decision and Direction of Election issued by the Regional Director on April 22, 1976. The tally was 70 votes for, and 97 votes against, the Petitioner; there were 4 challenged ballots, an insufficient number to affect the results. 2 The Employer has excepted to certain credibility resolutions of the Hearing Officer. It is the established policy of the Board not to overrule a Hearing Officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. The Coca-Cola Bottling Company of Memphis, 132 NLRB 481, 483 (1961); Siretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no sufficient basis for disturbing the credibility resolutions in this case. We do not adopt the Hearing Officer's finding that the Employee Representative Committee at a meeting on or about November 30, 1975, submitted a request to the hospital administrator for a cost-of-living wage increase. Employer strenuously excepts to this finding claiming that the meeting occurred on November II before it had any knowledge of union activity. This discrepancy with respect to the date on which the wage increase was requested is not significant. The significant fact is that the Employer's initial action with respect to the wage increase took place in December after the hospital administrator had knowledge of union activity and vowed to do something about it "before it went any further." 3 In the absence of exceptions, we adopt proforma the Heanring Officer's recommendations with regard to Objections 1, 2, 4, 8, 10, and 13. APPENDIX 9. The Union object [sic] to the conduct of the employer alleged in case no. 5-CA-7976 filed on May 25, 1976. Objection 9 concerns the Employer's granting of a 4- percent wage increase during the critical period. The Petitioner takes the position that the wage increase, which affected all voting unit employees, was granted in an effort to influence the outcome of the election. The Petitioner further states that the timing of the increase deviated from past practice. The Employer takes the position that the wage increase was granted at a time when it was economically feasible to do so, was based upon business considerations and was not motivated by the filing of the petition. 229 NLRB No. 20 The record discloses that previous increases had been granted by the Employer in August 1975 and November 1974. The most recent increase had been announced to employees by letter dated July 9, 1975, to be effective during the first pay period in August. On or about November 30, 1975, David Grupenhoff met with the Employee Representative Comittee, herein called ERC. The committee consists of nonsupervisory employee delegates representing each of the Hospital's departments. The group brings personnel and employee relations problems to the attention of hospital management and from time to time makes substantive recommendations to the hospital administrator. Among the requests submitted by the ERC in November 1975 was one for a cost-of-living wage increase. Members of the ERC who testified at the hearing stated that a request for a wage increase had appeared in each list submitted to Grupenhoff in the past, but that no action had been taken. After studying the ERC's suggestions, Grupenhoff met with the full committee at its regularly scheduled meeting on December 16, 1975. The minutes of that meeting (Empl. Exh. I) reflect Grupenhoff's pledge to submit to the Hospital's board of directors a request for a cost-of-living wage increase to take effect in late February or early March 1976. The amount of the recommended increase was to be 4 percent. On direct examination, Grupenhoff testified that both at the time of his receipt of the ERCs requests in November and his attendance at the ERC meeting of December 16, 1975, he had no knowledge of any union activity in the Hospital. Two employees who are ERC members and who were in attendance at the December 16 meeting state that Grupenhoff did indicate he had knowledge of the Union's presence in December. David Cooke and Elizabeth Wilson state that Grupenhoff, in off the record remarks prior to the opening of the meeting, said that he had heard rumors about a union around the Hospital and he "would like to do something about it before it got-before it went any further." Grupenhoff denied making the statement and contends that he had no knowledge of any union activity in the Hospital until March 24, 1976, when the Union's representation petition was received in the mail from the Board's Regional Office. Petitioner's witness David Cooke also testified that he attended his first union meeting around November 20, 1975. He further states that, after reporting to work on the day after the union meeting, he was approached by a supervisor, Mr. Ritter, who asked him about the meeting. David Cooke's testimony concerning his conversation with Ritter is uncontroverted. Therefore, there can be no question that the Hospital had knowledge of union activity among its employees as early as November 1975. Further, I do not credit Grupenhoff's denial concerning the off-the- record discussion at the December 16, 1975, ERC meeting. Rather, I credit the testimony of witnesses Cooke and Wilson. Thus, I find that at the time Grupenhoff forwarded his recommendation for a pay increase to members of the Hospital's board of directors, he did so with full knowledge of the Union's activities in the Hospital. On February 19, 1976, the Employer's Personnel Com- mittee held a meeting. One of the topics discussed was the 91 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advisability of granting a general wage increase to employees of the Hospital. As the minutes of that meeting reflect (Empl. Exh. 2), the Personnel Committee voted to recommend the wage increase to the Hospital's board of directors at the next regularly scheduled meeting. A close examination of Employer's Exhibit 2 reveals the statement, "Mr. Hittel presented the request for a general pay increase. The request is explained in the accompanying letter." At the hearing, however, the Employer declined to submit into evidence the attached letter explaining the pay increase, stating that the letter was not germane. The Employer's position is that the wage increase was eventual- ly granted because it was economically feasible to do so and the timing of the increase was not planned to influence the outcome of the representation election. The omission of the attached document which purportedly "explained" the pay increase does little to persuade the Hearing Officer as to the viability of the Employer's position. On February 25, 1976, the full board of directors held its regularly scheduled monthly meeting. Although the recom- mendation for a pay increase was presented to the board, the motion was tabled. Instead, the board determined to wait for I month, study the matter further, and reconsider it at next month's meeting. On March 24, 1976, the Hospital received from the NLRB Regional Office a copy of the Union's election petition. Coincidentally, the petition was received on the very day that the monthly board of directors' meeting had been scheduled. The minutes of that meeting (Empl. Exh. 5), reflect that the recommendation for a wage increase was again presented by the Personnel Committee and was approved by the board. It was determined to make the increase retroactive to the first pay period in March pending approval of a labor attorney to be retained by the Hospital. The Union's election petition was discussed briefly. After discussions with the attorney, the pay increase was made effective for the pay period March 14- 27. Notification of the wage increase was received by the employees along with the increased paycheck. Having credited Petitioner's witnesses who testified that hospital administration had knowledge of the Union's presence as early as November 1975, we now turn to a discussion of the timing of the March increase and the Employer's past practice. The evidence discloses that the Hospital's past policy had been to grant one wage increase per year. The March 1976 increase, on the other hand, was proposed by the hospital administrator within 5 months of the previous one and implemented within 9 months. Further, nearly 2 months elapsed before Grupenhoffs December 16, 1975, pledge was presented to the board, and on February 25, 1976, the board was content to delay consideration of the increase for yet another month. However, at the board meeting on March 24, 1976, after the petition had been received, the recommendation for a pay increase was "unanimously adopted." In support of its position that the March 1976 increase was not timed in such a way as to influence the outcome of the representation proceeding, the Employer states that it was in response to a specific request from the ERC that the machinery was implemented, resulting in the wage increase in March. I do not find this argument persuasive. I credit the testimony of ERC members who state that the request for higher wage rates was a continuing one and had appeared on each list of requests sent to Mr. Grupenhoff. Clearly the fact that wage increases had been under longstanding consideration does not alter the fact that the actual timing of the granting of the increase is coercive. Similarly, where the Employer learns of union activity and accelerates what were before vague possibilities, the wage increase interferes with a free election. Texas Transport and Terminal Company, 187 NLRB 466 (1970). An employer is free to implement a wage increase during the critical period if (1) the timing and amount of the increase comports with past practice, (2) business consider- ations are involved, and (3) the process through which the increase is granted is begun before the onset of union activity. Mallory Controls Co., 214 NLRB 616. It is the conclusion of the Hearing Officer that in the instant case, these prerequisites are patently absent. The March 1976 wage increase was a deviation from past practice, the planning of the increase began after hospital management learned of the Union's presence in the Hospital, and the Employer has presented no evidence of pressing business considerations which would warrant the increase. The circumstances of this case are similar to those in Tower Paint Investments, Inc., 195 NLRB 823, where the Board states: The timing of the increase during the organizational period could not fail to impress even the most obtuse that the company was giving the increase and that this occurred before the Union obtained bargaining rights, therefore, why was a union necessary. Simply because the Employer in this case refrained from other more obvious violations of Section 8(aX1), it is not free to employ the "fist inside a velvet glove" of well-timed wage increases. N.LR.B. v. Exchange Parts, 375 U.S. 405 (1964). As it is the conclusion of the Hearing Officer that the March 1976 wage increase constituted objectionable conduct sufficient to affect the outcome of the election, the undersigned recommends that Petitioner's Objection 9 be sustained, the election conducted on June 3 and 4, 1976, be set aside, and a new election be conducted. 92