St. Joseph's Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD St Joseph's Hospital and Barbara Sisson and Cali- fornia Nurses' Association, Party to the Con- tract. Case 32-CA-1966 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND ZIMMERMAN On September 23, 1980, Administrative Law Judge Harold A. Kennedy issued the attached De- cision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and Respondent filed cross-exceptions and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, St. Joseph's Hospital, Stockton, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. DECISION HAROLD A. KENNEDY, Administrative Law Judge: The Respondent, St. Joseph's Hospital, a nonprofit Cali- fornia corporation located in Stockton, California, is charged in this proceeding with violating Section 8(a)(2) and (I) of the National Labor Relations Act (hereinafter called the Act). The case was heard in Stockton on May 6, 1980. The General Counsel maintains the Hospital vio- lated the Act because: 1. Assistant Head Nurse Dolores Miniaci participated in the negotiations with the Respondent Hospital in the summer of 19791 as a member of the bargaining commit- tee of the Union, California Nurses' Association. 2. A "substantial number" of supervisory nurses par- ticipated in a "ratification/strike vote" taken by the Union on or about July 17. 3. A "substantial number" of supervisory nurses par- ticipated in a second "ratification/strike vote" taken by the Union on or about July 27. According to the General Counsel's complaint, issued on January 31, 1980, and based on a charge filed on July I All dates used herein are for the year 1979 unless otherwise indicat- ed. 254 NLRB No. 77 25 by an individual named Barbara Sisson, the Respon- dent "allowed" Miniaci to participate in the negotiations and "permitted" a substantial number of supervisory nurses to participate in the first and second ratification/ strike votes. The complaint also alleges that the "number of supervisory nurses participating in the Ratification Vote was sufficient to affect the results," and that the agreement became effective on July 27.2 The Union, California Nurses' Association, is named in the complaint as a party to the contract but not as a re- spondent. The General Counsel requests that the con- tract be set aside and declared to be of no force and effect. I find that the Respondent Hospital engaged in technical violation of the Act but decline to abrogate the bargaining agreement as requested by the General Coun- sel. Jurisdiction is conceded, and a number of matters are not in dispute, including the following: 1. The Respondent, St. Joseph's Hospital, is a Califor- nia nonprofit corporation engaged in the operation of an acute care hospital in Stockton, California; that it has had an annual gross of over $250,000; it has purchased and received goods or services from out of the State valued in excess of $5,000; and it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. California Nurses' Association, referred to as CNA and also as the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. Persons holding the positions of assistant head nurse and charge nurse, both referred to as "Supervisory Nurses," are and have been, at least since the decision issued in Case 32-UC-16 (issued by the Regional Direc- tor on June 21, 1979, and affirmed on August 14, 1979), supervisors within the meaning of Section 2(11) of the Act. 3 4. That the following employees constitute an appro- priate bargaining unit under Section 9(b) of the Act: All nurses, full-time and part-time, with the excep- tion of the assistant executive director for nursing, division directors, shift directors, department heads (i.e., head nurses), first-line supervisors (i.e., assistant head nurses and charge nurses) and supervisors as defined in Section 2(11) of the National Labor Rela- tions Act. 4 2 he General Counsel's brief states that the participation of supervi- sory nurses only affected the results of the July 7 vote. At the hearing, the General Counsel's attorney maintained that the test of illegality is not whether the votes of supervisory nurses affected the results of the vote per s'e "Our theory," he said. "is based upon their participation, whether it affected the results or not " Asked if the General Counsel's theory con- templated responsibility of an employer for "participation" of supervisory nurses whether it had any knowledge or not of that fact, the attorney for the General Counsel responded in the affirmative. :' Both thie Respondent and the Union deny, however, that such super- visory nurses acted as agents of the Hospital. The decision in Case 32- UC 16 states that the parties stipulated that there are 18 assistant head nurse positions and 30 charge nurse positions. 4 All parties agree hat the above description, taken from par 6 of the complaint, is the same as the description given in the recognition clause of the present agreement Sally Knahb, the labor representative of CNA, said the unit consisted of about 250 nurses 634 ST. JOSEPH'S HOSPITAL 5. There has been a continuing bargaining relationship between the Respondent and the CNA with respect to registered nurses since 1966, although the bargaining unit has varied somewhat during the succession of different collective-bargaining agreements. (See Resp. Exhs. 5- 10.) 6. On June 21, 1979, the Regional Director in Case 32- UC-16, acting on a petition filed by the Respondent on February 14 to clarify the bargaining unit, ruled, after a hearing, that assistant head nurses and charges nurses, also designated as "first-line supervisors," are statutory supervisors and are to be excluded from the unit.5 The Union filed an appeal, but the Board on August 14 af- firmed the Regional Director's decision by denying the Union's request for review. 7. The Respondent Hospital and the Union engaged in nine collective-bargaining sessions between May 24 and July 7: on May 24 and 31, June 26 and 28, and July 3, 11, 19, 27, and 29. A collective-bargaining agreement was reached on July 29 and thereafter put into effect. A copy of the agreement, covering the period May 20, 1979 to May 17, 1981, was received in evidence as Gen- eral Counsel's Exhibit 4.6 8. Received as General Counsel's Exhibit 3 is a list of first-line supervisors employed at the Respondent be- tween January I and July 27. The list is reproduced below: First-Line Supervisors 7 Employed Between January 1, 1979, and July 27, 1979 2 West Pam Wix Alice McMurry Marsha Nishioka Crisis Intervention Barbara Matley Garnetta St. Clair Lulu Johnson-Stopped 4-20-79 4 North Roxanna Silveira Martha Bennett Dianne McLaughlin-Started 3-5-79 Marilyn Prato-Stopped 4-16-79 4 East Doris Susich Pam O'Hern Sue Rollins 2 Main Oncology Sandy Woodward Sue Solbach CCD Yvonne Tansley Stella Atler The Regional Director's decision incorrectly stated that the petition was being dismissed. An errata sheet dated June 25 stated that the unit was being clarified as explained in the decision 6 Resp. Exh I is a chronological outline of events relevant to the har- gaining. 7 It is to be noted that some of the nurses ceased or began service as first-line supervisors during the period indicated Elaine Lancaster 2 East Marge Patzer Valerie Snyder-Started 6-17-79 Mary Savio-Started 5-6-79 Donna Burke-3-11-79 to 6-17-79 OB Dorothy Morgan Cora Gines Neri Berbano Fran Broderson Pediatrics Alice Finch Fusae Tanaka-Started 6-3-79 Erlinda Albalos PAD Nancy Bennett-Started 6-24-79 Jeff Lynch-3-11-79 to 7-20-79 3 West Ortho Barbara Whitney Mary Kaehler 4 West Helen Rice Rice Rall (Pirie)-Started 5-27-79 Gerry Lounsbury 2 North Karen Ryder-Started 4-24-79 Janet Marler-Started 5-20-79 Joan O'Hayer-Stopped 2-11-79 Judy Watland-Stopped 4-22-79 Emergency Betty Rodway Penny Linn ICD Fran Morgan Carol Mazerall Dolores Miniaci-Started 3-11-79 Kathy Konklin-Stopped 7-1-79 Sue Brockman-Stopped 2-11-79 9. All assistant head nurses and charge nurses were covered, and thus included in the bargaining unit by prior agreements negotiated between CNA and the Re- spondent. 10. Dolores Miniaci, the charge nurse who participat- ed in five negotiating sessions, voted in the union ratifi- cation elections on July 17 and 27. Seven other supervi- sory nurses also voted on July 17 and 27-Susich, Sil- veira, Bennett, Rollins, Atler, Rodway, and Morgan. There were 18 supervisory nurses who voted on July 17 (but not on July 27)-Wix, McMurry, Nishioka, Matley, O'Hern, Woodward, Solbach, Tansley, Lancaster, Patzer, Gines, Broderson, Lynch, Whitney, Kaehler, Rice, Pirie, and Lounsbury. Four of the nurses voted 635 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only on July 27-St. Clair (Garnetta), Morgan, Berbano, and Linn. (See G.C. Exh. 5(a) and (b).) 8 Sally Knab, labor representative of the CNA, appeared at all of the negotiating sessions and was the Union's principal spokesman.9 She identified six negotiating team members elected by the nurses as follows: Susan Brock- man, Kirsten Reiner, David Rose, Rosemarie Westley, Michelle Guthmiller, and Night Charge Nurse Dolores Miniaci. (Brockman had been a first-line supervisor but such status ended on February 11 before the negotiations began.) Miniaci participated in five negotiation sessions, according to Knab-on May 24 and 31, June 28, and July 3 and 11. Knab said Miniaci did not attend the June 26 bargaining session because the Union removed her from the team as a result of the Regional Director's deci- sion in Case 32-UC-16 but was reinstated to the negoti- ating committee for the June 28 meeting when it was de- cided to appeal the Regional Director's ruling. Knab in- dicated that Miniaci appeared again on July 3 and July 11 but attended no bargaining sessions thereafter. ° Knab regarded Miniaci as a "passive" participant, although she said the negotiations were "very serious." Knab could not recall that Miniaci presented any proposal or said anything during the bargaining sessions. Knab identified a tally sheet which indicated that the membership voted on and rejected a proposal of the Hospital on July 17 by a vote of 82 to 93. (Four of the ballots were considered invalid because no date was placed on them.) She explained that before voting the nurses in the unit met in two separate classrooms in groups of 75 or 80 each and heard an explanation of the offer by Knab. The nurses who attended, numbering about 75 or 80 in each group, signed a signature sheet and were then given ballots. They were instructed that a "Yes" vote was for ratification and a "No" vote was to be taken as a strike vote. Following the vote the Union gave notice of a strike to the Respondent on July 19 and informational picketing began in front of the hospital. Knab stated that Miniaci as well as others participated in the informational picketing. She said there was no work stoppage. " There is an indication in the record that Bennett voted only on July 27. 9 Knab said her position as labor representative is the equivalent of a union business representative. She said she did 95 percent of the talking for CNA and that Susan Brockman talked most after her. 'O Knab testified that a newspaper article dated July 26 correctly quoted her as saying that the Union was appealing a decision made on unit clarification petition. The article reads in part (Resp. Exh. 2): Pending the outcome of this appeal, the 40 supervisors "are in limbo" according to CNA negotiator Sally Knab. One of them, Do- lores Miniaci, is a member of the CNA negotiating team. Ms. Knab said the hospital has not protested her participation: "There has been no comment across the bargaining table regarding composition of the team." After the nurses had rejected a hospital offer and authorized a walkout Sunday if issues are not resolved, hospital administrators told the supervising nurses they are a part of management and would be expected to care for patients in the event of a strike. The association has contended that until the NLRB rules on the appeal, the supervisors are still a part of the bargaining unit. " Knab said that the signs indicated that the nurses wanted more pay, that St. Joseph should pray for them, that "we're tired of eating peanuts, that sort of thing." The strike was to begin she said on July 2q. Knab also identified the tally sheet that indicated the nurses voted and accepted the Hospital's final proposal on July 27 by a vote of 94 to 67. The nurses in the unit came on that date to a private home and, after hearing an explanation of the offer by Knab in groups of two or three, signed a signature sheet and received a ballot. 2 Arthur Mendelson, the Respondent's counsel, who was the Hospital's spokesman during the negotiations, offered copies of collective-bargaining agreements negotiated be- tween the parties since 1967, a number of other docu- ments pertaining to the unit clarification proceeding and the negotiations leading up to the latest contract execut- ed in 1979. These documents, along with certain explana- tory statements made by the Respondent's counsel, were received by stipulation. Carol Lee Cox, currently the vice president for nurs- ing at the Hospital, testified that she has held the top nursing position there for 10 years. She described the nursing structure in the hospital as follows: There are five division directors that are my imme- diate assistants, plus shift directors, one on 3:00 to 11:00 and one on 11:00 to 7:00, that are kind of the overall house supervisors when I'm not there. Each division director has approximately five to seven department heads. Department heads are responsi- ble for their nursing units. They are individualized as listed below: coronary care, crisis intervention, emergency. There are some twenty-I believe twenty-six of these, and they have anywhere from ten to seventy or eighty employees in each one of these departments. Each one of the shift supervisors-and that is the first line supervisor group is the next group-they are responsible for the group of nurses within that department for each shift, days, evenings, and nights. They supervise anywhere from two to three to thirty people. Cox explained that the first-line supervisors, the assis- tant head and charge nurses, are responsible only for their own shift: "They are the shift supervisor for their department." Cox said she had set about to decentralize and give nurses more authority from the time she arrived in 1970. Asked when the charge nurses and assistant head nurses became supervisory personnel, Cox replied that they were all probably functioning as first-line supervisors "as we had defined it in their job description" by 1979. Probably some were functioning in that capacity as early as 1977 or "maybe a little earlier" she said. According to Cox, the Hospital decided in 1979 that the charge and as- sistant head nurses should not be in the unit and there- fore filed the petition for clarification before beginning negotiations with the Union. Cox also testified that she did not ask or encourage any first-line supervisors to vote on either July 17 or July 27 and knew no one in the hospital administration who did. Also, she said that neither she nor any other 1z Copies of the sign-up sheets for the July 17 and July 27 meetings were received i evidence as G.C. Exhs 5(a) and 5(b). 636 ST. JOSEPH'S HOSPITAL hospital official asked or encouraged Miniaci to attend any of the negotiating sessions. No attempt was made to remove Miniaci from the negotiating committee because, she said, "we didn't know for sure what was going on, really, with the first line supervisors." According to Cox, the 1979 negotiations were "very traumatic" and "very difficult" for both sides. "It was the worst one I've ever gone through" she said. On re- ceiving the 10-day strike notice on July 19 Cox stated that the hospital administration met with its first-line su- pervisors and told them to prepare for the strike. Her notes indicate that they were told: 1. NLRB - states that you are supervisors. 2. You as supervisors are to take care of pts during the strike if we have one. This is especially important in a hospital where pts lives are at stake. 3. We are instructing you to come to work & take care of pts. We cannot conceive of a situation when you would not want to work. 4. We are stopping dues deductions in payroll to CNA and we are placing you on hospital benefits & on FLS salary schedule. We will hold a special meeting a year, Mrs. C. & Cee. 5. As far as negotiations are concerned, we had hoped not to be in our present position of giving a final offer but we were forced to do so. We did not desire a confrontation. Now that this has occurred, we must tell you once more that you are FLS, & we expect you to perform your duties as supervi- sors. Dolores Miniaci is presently employed at another medical facility in San Francisco and appeared under subpena. She became a first-line supervisor as a night charge nurse on the 11 to 7 shift in intensive care on March 11. Shortly thereafter she was elected, as she had been in 1977, as a member of the Union's negotiating committee. 13 Miniaci's name was suggested as a member of the Union's negotiating committee by other nurses, and she never told the Hospital she was a candidate for the job. She stated that she participated in the negotia- tions only on behalf of the nurses. She confirmed that she engaged in informational picketing (on roller skates) after July 19. She asserted that the Hospital did not tell her, or anyone else as far as she knew, to vote. Miniaci indicated that she exercised limited supervising authority as a charge nurse over six employees, including one LVN, as she was "still new to some of the policies." She hired no one and fired no one but did counsel em- ployees concerning the care of patients, she said. She also approved overtime, assigned patients to nurses, han- dled timecards, made up schedules, and made an evalua- tion of one employee. Miniaci said she attended both ratification meetings but told no one how to vote. 4 Miniaci said she attended a first-line supervisors' meeting held at the home of Sue i3 According to Miniaci, the nurses voted on approximately 25 names. She said of the six elected to the committee three were "nurse representa- tives," and three were "sort of members at large" 14 Miniaci said she spent 9 hours at the July 27 ratification meeting and notified employees of the vote to be taken that day. Rollins after informational picketing had begun. "[W]e were being called up as managers now to help out in the event of a strike," and "we just wanted to sit down and discuss what was going on," she said. Section 8(a)(1) and (2) of the Act makes it an unfair labor practice for an employer: (1) to interfere with, restrain, or coerce employ- ees in the exercise of the rights guaranteed in sec- tion 7; [or] (2) to dominate or interfere with the formation or administration of any labor organization or contrib- ute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay. Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174 (1957), set forth certain guidelines applicable to employer supervisors voting in union elections and serving on union negotiating committees. In that case an association of contractors had negotiated on behalf of a number of construction firms with the International Union of Operating Engineers. Smith and Dean were members of the Union's negotiating committee and Hen- drickson, president of one of the employer construction firms, was a member of the association's negotiating committee. Smith and Dean were master mechanics and as such supervised at least five engineers and effectively recommended hiring and firing of employees. Smith worked for Hendrickson, was responsible for mainte- nance of equipment worth "at least a million dollars" and maintained a desk with two assistants in the general office of the firm. The master mechanics and other su- pervisors, including executives not included in the bar- gaining unit, participated in union elections. The Board held in the case that "company executives and ranking supervisors" outside of the bargaining unit could not vote in union elections or serve on union negotiating committees. Low-level supervisors who are members of the bargaining unit may vote in union elections, said the Board, but not serve as members of a union's negotiating committee. These passages from the Board's Nassau and Suffolk Contractors' Association decision (118 NLRB at 184) are of interest here: 3. As stated, the Trial Examiner found that the participation of Master Mechanics Smith and Dean in bargaining negotiations on behalf of the Union proves that their employers unlawfully dominated and interfered with the administration of the Union's affairs. We agree that this conduct consti- tutes unlawful interference, but not domination. The Board went on to explain that there was no evi- dence that the employers had anything to do with the appointment of Dean or Smith to the union's negotiating committee and that the employee members had no basis for believing "they were employer instruments for the control of the negotiating committee"; they were senior 637 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the union, union stewards, members of the bargaining unit and held master mechanic positions with approval of the union. "[T]o require the employer to ex- ercise some sort of veto power over the appointment of foremen to official positions within the union to avoid the charge of dominations would seem to involve inter- ference in the affairs of the union, which is precisely what Section 8(a)(1) of the Act is designed to prevent." The Board explained as follows why service of the two master mechanics on the union's negotiating com- mittee constituted unlawful interference with the union's affairs ( 118 NLRB at 187): Although we have rejected the Trial Examiner's finding that Respondent Association dominated Re- spondent Union because 2 master mechanics em- ployed by members of the Association were on the 12-member union negotiating committee, we do be- lieve that it is improper for supervisors, even those with predominantly union loyalty, to serve as nego- tiating representatives of employees; and to the extent that the employer acquiesces in such partici- pation the employer is guilty of unlawful interfer- ence with the administration of the Union. It is true that we have held that the employers of master me- chanics are not responsible for the roles played by the latter in the internal affairs of the Union and that their participation in bargaining negotiations in behalf of the employees does not, under the circum- stances of this case, justify a finding of union domi- nation by the employers of such master mechanics. But participation in bargaining negotiations vis-a-vis the employer is not merely a matter of a union's in- ternal affairs, and, although conduct may fall short of proving control, it may nevertheless constitute unlawful interference with a union's administration. Despite the large measure of control exercised over master mechanics by the Union, the mechanics remain in part agents of their employers with a re- sulting divided loyalty and interests. That conflict of interest may be accentuated, as in the case of Clifford Smith, by the payment of special bonuses at the discretion of the employer. Employees have the right to be represented in collective-bargaining ne- gotiations by individuals who have a single-minded loy- alty to their interests. Conversely, an employer is under a duty to refrain from any action which will interfere with that employee right and place him even in slight degree on both sides of the bargaining table. There is no evidence that employers were re- sponsible for the naming of any master mechanics to the Union's negotiating committee. But they were under a duty, we think, when confronted with a union negotiating committee which included their own agents, to protest the composition of the com- mittee and to refuse to deal with it because it was tainted with an apparent employer interest. By fail- ing to register such protest and by actually dealing with the committee as constituted, Respondents Hendrickson and Radory acquiesced in such ap- pointments and to that extent, we find, interfered with the administration of the Union in violation of Section 8(a)(2) and (I) of the Act. CNA states in its post-hearing statement that "we do not believe that the respondent has been shown to have improperly interfered in the affairs of CNA" and asserts further that "even if it were to be assumed that a Section 8(a)(1) and (2) violation has occurred, the facts of this case would not support an order calling for the nonen- forcement of the agreement between the parties." Says the Union: "If there is an unfair labor practice in this case, it is at best a technical kind of violation for which neither Employer nor CNA bears any direct responsibil- ity." Respondent argues in its brief that there is "not one whit of evidence that interference with or domination of CNA by the Hospital did in fact occur." Respondent's brief goes on: On the contrary, the evidence establishes that the Hospital's relationship with the Union throughout the negotiations was adversary, hostile, and that CNA was prepared to exercise its economic weap- ons against the Hospital. All of the facts in the record suggest that the outcome of the negotiations would have been exactly the same even if Miniaci had been barred from the CNA negotiating team after June 21 and even if the first-line supervisors had not voted on ratification or a strike. Respondent further contends that abrogation of the con- tract between the Hospital and CNA, "now past mid- term," as sought by the General Counsel, for "at most . . an extremely technical violation, given the universal confusion over the status of the first line supervisors prior to the Board's denial of review in the unit clarifica- tion case, would destabilize labor relations between the Hospital and CNA and punish the Hospital for its good faith effort not to interfere with the administration of CNA." These arguments are persuasive ones, but I believe that under Board law that Miniaci's participation in the nego- tiations after June 21 and the voting by her and other first-line supervisors on July 21 and 27 "interfered" with employees' Section 7 rights and the Union's administra- tion of its affairs. The facts of the case are rather unique, however, and I regard the violations as technical in nature. 16 The General Counsel's case in Nassau and Suf- folk Contractors' Association was stronger than in the in- ' The Board has continued to follow the principles enunciated in Nassau and Suffolk Contractors' Association. See, for example, Geilich Tan- ning Co., 128 NLRB 501 (1960), on remand; A L. Mechling Barge Lines, 197 NLRB 592 (1972): Schwenk, Incorporated, 229 NLRB 640 (1977); Ma- sonry Contractors Associates of Houston. Texas, 245 NLRB 893 (1979). The Board's "policy regarding conflict of interest issues raised by the active participation of supervisors of the employer with which a labor organization seeks to bargain . in the internal affairs of state nurses associations" (quoting from Abington Memorial Hospital, 250 NLRB 682 (1980)), is set forth in Sicrra Visla Hospital Inc., 241 NLRB 631 (1979) (on remand) 6 The complaint does not allege that the Hospital dominated the CNA Union 638 ST. JOSEPH'S HOSPITAL stant matter," but the Board indicated that it would pre- sume unlawful interference whenever an employer nego- tiates with a union committee that includes a supervisor agent of the employer. 18 The Board spoke of an employer being "guilty of in- terference" if it "acquieces" in the participation of a su- pervisor as a member of a union negotiating committee. I interpret the Nassau and Suffolk Contractors' Association case to apply to the case at bar and to require, after the Regional Director's decision in Case 32-UC-16 on June 21, the Respondent to protest the composition of the Union's negotiating committee and to refuse to deal with it as long as Miniaci continued to serve on it.19 Also, under the "Nassau doctrine" the assistant head and charge nurses could not properly vote either on July 17 or 27 because, although they were only low-level super- visors, 2 0 the Regional Director had determined on June 21 that they were no longer members of the bargaining unit. The Board in Nassau and Suffolk Contractors' Associ- ation articulated a clear basis for invoking a duty on an employer not to bargain with a union negotiating com- mittee having one of its own supervisors as a member. It is less clear how an employer in a case such as this, with a change of status being made by the Board with respect to certain employees during "hard bargaining" negotia- tions between the parties, could prevent newly designat- ed low-level supervisors from attending and voting in union ratification meetings-without later being subject to a charge of interference with the Union's affairs or the rights of the employees in the unit. It would have been sufficient perhaps had the Hospital announced, on being advised of the Regional Director's decision, that all charge and assistant head nurses were not to thereafter vote in CNA elections or otherwise participate in CNA's internal affairs. In the case at bar none of the Respon- dent's officials knew who attended the ratification meet- ings and voted on July 17 and 27, but its negotiating committee was able to see Miniaci at the bargaining ses- sions and no doubt knew that the Regional Director had determined that she was to be considered a first-line su- " Smith and Dean had more authority than Miniaci, and there is no indication in the record that Miniaci would have consciously compro- mised her loyalty to or interest in representing the employees in the bar- gaining unit. The evidence of record persuades me to believe Miniaci's loyalty continued to he with the employees in the unit after she became a first-line supervisor in 1979. Unlike some other first-line supervisors, Min- iaci refused to testify for the Hospital in the unit clarification proceeding 18 While agreeing that the Respondent's first-line supervisors are statu- tory supervisors, the Union and the Hospital did not concede that they, were the Respondent's agents. I( is difficult to consider Miniaci to be a statutory supervisor, however, without also considering her to be an agent See Sec 2(11) of the Act Of course an employee can be an agent without being a supervisor (see, for example. IHelena Laboratories Corpo- ration, 225 NLRB 257 (1976), modified 557 F2d 1183 (Sth Cir 1977)) 9 That the Regional Director's determination with respect to the su- pervisory status of the charge and assistant head nurses became immedi- ately operative without affirmance b the Board, see General Cormmruni- cations Service. 201 NI.RB 1003 (1973). citing Sec 102.67 of the Board's Rules and Regulations t is to be noted that the General Counsel's atllor- ney, and the complaint impliedly. concedes that there was no illegality for Miniaci to participate as a member of the Union's negotialing leam prior to June 21 20 The Regional Director found in Case 32 UC 16 that "most 'first line supervisors' also engage in direct patient care tip to X80; of their time." pervisor. There are, as the Respondent Hospital and CNA Union point out, a number of factors which make this case unusual and eliminate the need for an order ab- rogating the collective-bargaining agreement. Only one member of the Union's negotiating team was a supervisor and the facts concerning her election to that position and performance in that position thereafter show that there was no apparent conflict of interest. She had previously served as an employee representative in prior negotiations and, although promoted to charge nurse in March, it is apparent that she did not seek to serve any interest of management during the 1979 negotiations. She was a low-level supervisor, an inexperienced one who became a statutory supervisor only after the Regional Director issued his decision on June 21 in the middle of the bargaining. There was no communication between her and the Hospital's management about the bargaining. There was disagreement between the Hospital and CNA and, thus, confusion as to who should be considered stat- utory supervisors among the charge and assistant head nurses. Miniaci left the bargaining committee after the Regional Director issued his decision in Case 32-UC-16 and returned to the committee after the Union decided to appeal the Regional Director's determination. Further, Miniaci was not an active participant in the bargaining, but there was never any doubt about where her loyalty lay, as indicated by her informational picketing. As for the participation of the first-line supervisors in the ratification votes, the first vote resulted in the rejec- tion of a hospital proposal, and on June 27 the contract would have been ratified whether the charge and assis- tant head nurses voted or not. There is no evidence that these supervising nurses (or any other supervisors) sought to influence any of the nurses how they should vote. Nor is there any evidence that the Respondent knew they would vote. In any event, as the Respondent points out, ratification is really an internal matter for a union and not subject to challenge by an employer. See Branch 6000, National Association of Letter Carriers, 232 NLRB 263 (1977), affd. 595 F.2d 808 (D.C. Cir. 1979). Notwithstanding these unusual factors in the case, it is of course the potential for interference that is the test, as the General Counsel points out, and on this basis I do find the Respondent violated the Act-albeit on a techni- cal basis. Quoting from Employing Bricklayers' Association of Delaware Valley, 134 NLRB 1535, 1537 (1961): To the extent that management officials are permit- ted to participate in the formulation of a union's policies, relating directly or indirectly to negotiating and administering bargaining agreements, such offi- cials are forced to choose between competing loyal- ties. Management officials may even make these choices based on their personal rather than their employers' interests, and in some degree their choices may even be of greater benefit to the union than they are to the employer. But despite the pos- sibility that a management official, who is also a member of a union, may act from what he con- ceives the true interest of the union to be, this is nevertheless an area in which, in our opinion, only 639 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union members who have no divided loyalties should be admitted. These factors are relevant in the matter of remedy in the case of course. Abrogation of the contract, which was reached after "hard bargaining in an arms-length re- lationship" and in effect for more than a year, is not an appropriate remedy, in my view. It is sufficient, I be- lieve, that the Respondent be ordered to cease engaging in the violations found. See The Crossett Company, 140 NLRB 667 (1963). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER2 1 The Respondent, St. Joseph's Hospital, Stockton, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Negotiating with any union committee which in- cludes any supervisor of the Respondent. (b) Permitting a supervisor to participate in a union election conducted by, for, or on behalf of the union membership unless such person is in the bargaining unit and is a low-level supervisor. (c) In any like or related manner interfering with the administration of a union or employee union members in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the purpose of the Act: (a) Post at its hospital in Stockton, California, copies of the attached notice marked "Appendix. " 2 2 Copies of 21 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. such notice, to be furnished by the Regional Director for Region 32, shall be duly signed by the Respondent and posted immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply here- with. 22 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX ORDER OF HE NATIONAL LABOR RELArIONS BOARD An Agency of the United States Government WE WILL NOT interfere with the internal affairs of any union, including the California Nurses' Asso- ciation, or the rights of employee members of CNA either by permitting a supervisor to participate in union elections (unless such person is in the bargain- ing unit and has only low-level supervisory authori- ty) or by negotiating with a union committee that includes any supervisor. WIE Wil L NOT in any like or related manner in- terfere with the administration of a union's affairs or the rights of employee union members. S'I. JOSEPH'S HOSPITAl. 640