Eastern Maine Medical Ceneter

DI)CISIONS ()F NATIONAI. IA()BOR RELATIONS BO()AR) Eastern Maine Medical Center and Maine State Nurses Association Eastern Maine Medical Center and Catherine M. Leavitt, Petitioner, and Maine State Nurses As- sociation. Cases -CA- 13570 and I-RI)-888 November 10, 1980 DECISION AND ORDER I3 CIAIRMNAN I \NNIN(; ANI) MIMn113IRS Jl NKINS ANI) PINI 0() On October 26, 1978, Administrative Law Judge Robert A. Giannasi issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. The Charging Party, herein called MSNA or the Union, filed an answer to Respondent's exceptions, along with a supporting brief, and Respondent filed a response to the Charging arty's answering brief.' Subsequently, on June 21, 1979, the 3Board issued an "Order Remanding Proceeding for Further Hearing" for the purpose of adducing evidence as to whether or not the Maine State Nurses Associ- ation is disqualified by virtue of a conflict of inter- est from representing Respondent's employees. The Board deferred decision on all other issues pending resolution of that matter. The General Counsel then filed a motion for reconsideration with the Board, contending that the Order Remanding Pro- ceeding for Further Hearing was unnecessary be- cause all the material evidence regarding the dis- qualification issue was contained in the record as made. On August 20, 1979, the Board issued an order denying the General Counsel's motion, and further hearings were thereafter held before the Administrative Law Judge. On February 25, 1980, Administrative Law Judge Giannasi issued the at- tached Supplemental Decision in which he found, inter alia, that MSNA is not disqualified from serv- ing as bargaining representative of Respondent's Rexpolndelt filed a motion to trike the Charging ;larty's ansller to its exceptions. contending that the aller raised issues il o dealt itih i Respondent's exceptions and I tact contituted iiew exceplions which were nioi tiimely filed under Sec 102 46 of the Bloard', Rules and Regula- lions Series , i.s amerncded ()tl Janluary 22, 1979, lie oard advised Re- spondenl that it would not rule oll its moliltiol to strike at thait tile, but set a due ate filr rreceipl of Responldent' respolse to the Charging Parly's answer. Respiondent oil Janllary 29, 1q979 filed a; documenl t stlcd as "Answering Brief to l- xceptiols oif Maine Stall Nilse Asocilionl We have revicwed thie Charging Party's alrlwecr I1l light ol' Respondent's exceptton aid ote that the asvcr deals exclusivtly with rltedial as pects of the Adrillistralive I ;l.a Judge's reconnl ieded ()rder to all i which Respondent has excepted While it is true that the ( h;largig ';lart urges that additionllal remedies not rcelrrlncldd tile Adlllitrlttratic I.aw Judge are alo arratited, we doi not finld Its ulggestiiln of' urthcr remedial rmeasures in resplonse toi Reptnlldetlt's exceptions regarding those proisions recommended hby tlile Admniristratix I lxI Judge jlustif, sIriking he eire answer, partlcularly inl iew oIf Ihe flct that Rcpotnlld clt was afforded an lopportluity io a did lile a rexplose ith respecl to those iues Accordingly, Respoindent's motionl to strike is dctiecd 253 NLRB No. 24 employees. Respondent filed timely exceptions to the Supplemental Decision, along with a support- ing brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Supple- mental Decision. The Charging Party filed a brief in answer to the Respondent's exceptions. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and briefs and has decided to affirm the rulings, 2 findings, and conclusions of the Adminis- trative Law Judge in his Supplemental Decision. The 13oard has also considered the record and the attached Decision issued by the Administrative I aw Judge on October 26, 1978, in light of the ex- ceptions and briefst and has decided to affirm the rulings, findings,4 and conclusions of the Adminis- trative Law Judge and to adopt his recommended Order, as modified herein. 1. The Administrative Law Judge found that Re- spondent's no-solicitation rule is overly broad, and thus violated Section 8(a)(l) of the Act. That rule, as revised and distributed on October 1, 1975, after MSNA's organizing campaign began,5 is extant in two versions. In a memorandum from Respondent's executive director addressed to all EMMC (East- 2 ReKpiIlttic rqj11les ill t cxceptlTIx to tle Sitpjiluppleriill I)ecisiiotl thal thie hiarrd r le IIt llmotiln t correct traiscript rrors That otit It[i altS1 filed wilh lti Adiiiitrall c I ax Judge, but ot ruled upilt lin t'i ihxt .iu ' lf iiectill h> tie (icnral Cutinel ior the ('harging l'rtl . c litebhk gialllt RiisptlrLIet'x tilll t correct transcript errrs lit s ding. xx lJL' ta t i le l ' thex , laige, iff'ects tie rexslt ItI lil cecllt ' () )C cetili I II. 11 7, Rpilldentt iled a illlil ior special Lalci tI file ;a u pll l'trtitll bl hlet . tiCrIllrng tilt' "n'-sollitation rule" isue raise h Iit xceptiolls i Ihe Atidnlitislritic I ;iw Judge's I)ecisioln/ ill lightl il recent dcisiions ti tile Supremire 'lourt i' the Uniltcd States I he (itteral ('lounstel f ied a llotilOl Ilpl poiti li t i Rcporlldlclt's nilotiol 'Ihe Board o1 Ju;lr 2 ltlS(,. ISsued lanl rder gratinlg Responldent's itiltlio Respondent thereafter iled .a supplemtniltal brief on the rno-sollici- taltoi rule isue, rltd the General ounsel filed a brief' il oppositio to Respolndeils supplemenital brief I its supplemential brief. Respondent requested that tle ard rentand the prolceeding fir urther hcarrig rela- ti've I it, Irt o xolcitatiotl rule Ihat rcquest is hercby deied, iannuch as the present record co italis suffictent ex idence for resolutioni of that ssue I hre Administrative I.aw Juldge fud i his Ilriginal Decisionl that Resporldtlt, h virIuc of its long period ft' actual hargainring with MSNA during wric i raiscd no questill regarding MSNA's cmpelcnc Io represent its employes, 'aixed r s cstopped frorllr asserting in the unrfair labor practice tage of this priceeding anrl right it r haiy t had tio objclt to tIhc corrpctcrlce of MSNA a hargaining agell Suhbsequent to the issuance of the Admirnitrati e aw Judg e' I)cision, the Board issued its decition il S.'err Ii'ita lospilita. In-., 241 NIRH 63tl i I97). arnd remanded thc I nstant proceedirig fir further hearing i light o thce IBoard's I)ecisionr ili that case Irl iew of the Administrative I.av JudgeX coinclusoI i his Spplemenial Decision. hich we adopt, that MSNA is not dlsqulilfd frotli representing Respolldent's enlploec.% we d riot fild it 11ccesitr I,) pass oit his iriginal waiecr flildlig Ar ealrher rle. xwhicch the 1975 rI-eiihll replaced. ltated ( fanlu i iiSr, Callvasing or solicillng of any kind i prohibhited ithil the cldical ('rlter aliig crrIpllyecs alnd patients withotul advallce aulhorization fruirt the ectcutive director Irtarics of this naturc should he re- ferred to the tx'cutixe dirictiir 224 EASTERN MAINE MEDICAL CENTI R ern Maine Medical Center) employees, dated Octo- ber 1, 1975, the revised rule is stated as follows: No employee shall solicit for any purpose on property of the Eastern Maine Medical Center during working time, exclusive of break time in non-work areas. The distribution of materi- als for any purpose is prohibited in working areas, even during nonworking hours. Any person not an employee of the Eastern Maine Medical Center is prohibited from entering the premises to solicit or distribute at any time unless with permission. Instances of this nature shall be referred to the office of the Executive Director. An EMMC interdepartmental directive also dated October 1, 1975, and addressed to all medical center personnel from Respondent's director of personnel services, restates the rule, but substitutes the term "break areas" for "non-work areas" in the first sentence of the rule. Further, in Respondent's "Weekly Bulletin" of October 1, 1975, hospital em- ployees were advised by Respondent as follows: Solicitation rules are now clarified for employ- ees. (There is a flat prohibition for non-em- ployees.) Employees may not solicit for any purpose during working time nor distribute materials in working areas even during non- working time. Employee solicitation during break time, in break areas, is permissible. The rule is being posted on the bulletin boards and will be included in the regular updating of the personnel handbook. What about the United Fund?-it's the traditional exception. Because the rule (1) prohibits lawful nonwork- time solicitation in work areas which are not imme- diate patient care areas, and (2) prohibits solicita- tion at times other than breaktime, such as lunch or reasonable periods before and after work in permis- sible areas, the Administrative Law Judge conclud- ed that it is broader than permissible under Board law and, at the very least, is ambiguous. Relying on the general principle that any ambiguity in a statement is construed against the party promulgat- ing it, he found the rule overly broad in that it may be construed to limit impermissibly union solicita- tion both in terms of locations within the hospital where solicitation would be permitted and of times during which employees might properly solicit their coworkers. The Administrative Law Judge found a further violation of Section 8(a)(l) of the Act through Re- spondent's application of its no-solicitation rule to prohibit solicitation in a second-floor hospital lobby from which it expelled two off-duty nurses who were soliciting employees to sign union member- ship cards and dues withholding forms on March 10, 1977. Nurses Mclnnis and Rose had, earlier in the day, been soliciting in the hospital's public cafe- teria, and had returned in midafternoon to solicit nurses coming on and going off duty when they were requested by Respondent's director of person- nel to leave the premises. In concluding that Respondent's no-solicitation rule was unlawful, the Administrative Law Judge relied upon the Board's Decision in St. John's Io.s- pital and School of Nursing. Inc., 222 NLRB 1150 (1976), as providing the applicable standard for lawful limitation of union solicitation in hospitals. The Administrative Law Judge stated the control- ling principles as follows: With respect to hospitals, the Board rule is that, while a hospital may lawfully ban em- ployee solicitation and distribution, even during nonworking time in immediate patient care areas-such as the patients' rooms, oper- ating rooms, and places where patients receive treatment-a ban on that activity in other areas to which patients and visitors have access is invalid absent a showing by the hos- pital that such a ban is necessary to avoid a disruption of patient care. The Administrative Law Judge also noted the opinion of the Supreme Court in Beth Israel Hospi- tal v. .L.R.B., 437 U.S. 483 (1978), wherein the Court affirmed the Board's holding that Beth Israel Hospital interfered with employee rights protected by Section 7 of the Act by enforcing a rule that prohibited soliciting union support and distributing union literature during nonworking time in the hos- pital's cafeteria and coffee shop. The Court stated in that case:7 We therefore hold that the Board's general ap- proach of requiring health-care facilities to permit employee solicitation and distribution during nonworking time in nonworking areas, where the facility has not justified the prohibi- tions as necessary to avoid disruption of health-care operations or disturbance of pa- tients, is consistent with the Act. Thus, the Supreme Court in Beth Israel approved the Board's fashioning and application of a pre- sumption that employer rules which prohibit em- ployee solicitation in health care facilities in areas t" Che calfclcria i, also located on the ccornld flor of the hospital, and s usled h emplo>ees and members of the puhlic. a, v cll as b amhul;l- Ior patirnts he h ilurSC. , who were off dut at that time also. soliciled emploees li the caetlcria fi r approximatelk I hour on the nmorning of M1.arch 10, 1'77. ilhoul interfrlnc h5 Respondcnt vd Iat 07 I)2FCISIONS OF NA IONAL LABOR RELATIONS BOARD other than immediate patient care areas are invalid, rejecting Beth Israel's argument that the Board's use of such a presumption was inconsistent with the legislative intent underlying extension of the Act to nonprofit health care institutions. Subsequent to issuance of the Administrative Law Judge's Decision, the Supreme Court handed down its opinion in NV.L.R.B. v. Baptist Hospital, Inc., 442 U.S. 773 (1979), in which it further dis- cussed union solicitation in health care institu- tions.8 In Baptist, the Court cautioned the Board to take into account the medical practices and meth- ods of treatment incident to the delivery of patient care services in a modern hospital in presuming that employee solicitation on nonworktime and outside of immediate patient care areas does not disrupt patient care or disturb patients and may therefore not lawfully be forbidden.9 The Court also suggested that, in reviewing the scope and ap- plication of its presumption, the Board bear in mind that patient care areas may vary depending upon the circumstances of the particular institution involved."' The Supreme Court held in Baptist that the Board lacked substantial evidence in the record to support its order forbidding any prohibition on solicitation in the corridors and sitting rooms on floors of the hospital housing either patients' rooms or operating and therapy rooms, but that the evi- dence supplied by the hospital with regard to the application of its ban on solicitation in the cafete- ria, gift shop, and lobbies on the first floor of the hospital was insufficient to rebut the Board's pre- sumption of the ban's invalidity in those areas. The Court observed that Baptist's vice president for personnel services and its chief of medical staff had testified that at least some kinds of solicitation in public areas such as the cafeteria would be unlikely I On October 3). 1978. the Supreme Court also issued a decision in Balor U(niverty Medicui Center N .L R.B., 439 U.S 9 in which it denied the Board's ptition foir certiorari as to a portion of a decision of the United States Court of Appeals for the District of Columbia Circu!, 578 F 2d 351 (1978) denying enforcement of a Board order forhidding apphcation of a no-solicitatiot rule to that hospital's corridors, but grant- ed the petitl(ln fior certiorari and acated the judgnllt of the court of appeals insofar as it denied enforcement cof the Board's order requiring the hospital ntot to apply its no-solicitation rule to its cafeteria Finding its owin decision in Bilh Isruel luospill. supra, relevant to tIhe cafeteria issue, the Supreme Court remanded the case to the court if appeals for recoln- sideration in light f that case. The Court of Appeals for the District if Columbia Circuit thereafter remanded the case to the Board for consider- ation in light of the Supreme Court's Beth Israel decision and the court of appeals' decision on remand (593 Fd 1290 (1979)). The Board on Fichru- ary 22, 1980, issued a Supplemental )cecision and Order, 247 NLRB No 178, reaffirming its previous finding that the respondent violated Sec. 8(a)(1) f the Act hb maintaining an ot erl broad no-solicitation, n-dis Iributioin rule il the cafeteria and ending areas at thlie ay or Univers is Medical Center The Ciourt noted that the Board's presunmptionl does no more than place on the hospital the burden of proving, with respect to areas to swhich it applies, that union solicitation may adversely affect paltieits Id at 781 "' Id. at fn Ih to have a significant adverse impact on patients or patient care. After reviewing the facts of the instant case in light of the cases discussed above, we conclude, in agreement with the Administrative Law Judge, that Respondent's no-solicitation rule is overly broad both on its face and as applied to prohibit so- licitation in the lobby at issue in this case. With re- spect to the rule's being overly broad as promul- gated we, like the Administrative Law Judge, find that the rule does not conform to our requirement that Respondent's ban on employee solicitation on nonworktime be limited to immediate patient care areas. It is, therefore, presumptively invalid. Nor has Respondent established that union solicitation in working areas of the hospital which are not im- mediate patient care areas would either disrupt pa- tient care or disturb patients. Accordingly, we affirm the Administrative Law Judge's finding that Respondent's no-solicitation rule is overly broad and thus violates Section 8(a)(1) of the Act.'2 With respect to Respondent's application of its no-solicitation rule to its second-floor waiting lobby, from which it expelled two employees who were soliciting other employees to sign union mem- bership cards and dues withholding forms, we find, also in agreement with the Administrative Law Judge, that Respondent's prohibition of solicitation in the lobby in question unlawfully interfered with the employees' exercise of their Section 7 rights. The facts, as fully set forth in the Administrative Law Judge's Decision, indicate that off-duty nurses McInnis and Rose were situated in a large waiting area or lobby on the second floor of the hospital when prevented from engaging in solicitation by Respondent. The lobby is open to the general public, and is adjacent to hospital conference rooms, the medical library, the cafeteria, and the surgery waiting room. The hospital public cafeteria opens directly into the lobby. The lobby is used by people on breaks from the conference rooms, by nurses who congregate in this area prior to the be- ginning of their shifts while waiting to punch the timeclock located off the lobby, and by persons awaiting news about patients undergoing surgery when there is an overflow from the adjacent sur- gery waiting room, as well as by persons waiting for out-patients or people that have transported pa- tients to the hospital. Elaine Thompson, an employee of Respondent who is secretary to the hospital chaplain, testified Id. at 786. ( Because the Administrative L.as Judge's recommended Order affir- mativcly requiring the rescission of the unlawful rule contains an inadver- tent or typographical error. we shall modify that portiun of his recom- mended Order. 226h EASTERN MAINE MEDICAL CENTER extensively regarding the daily use of the lobby. Thompson has a desk at one end of the lobby and, during her 8 a.m. to 4:30 p.m. shift, Monday through Friday, acts as liaison between friends and relatives of patients undergoing surgery and per- sonnel in the hospital operating rooms. Thompson is in contact with the operating room secretary, who lets her know when a patient is out of sur- gery, and she passes this information along to indi- viduals awaiting news of that patient. The surgery waiting room is alw used by physicians to confer with those awaiting news of the results of surgery. However, even if the lobby is being used as an overflow area, the physician takes those with whom he is conferring about a serious problem as a result of surgery into the surgery waiting room to speak with them, rather than discussing the matter in the lobby area. Thompson's testimony indicates that persons using the lobby sit, talk, smoke, even eat. A patient care area is located approximately 200 feet from the lobby, separated by a corridor. Thompson, who testified regarding her daily obser- vation of the lobby's uses, mentioned patient use of the lobby at only one point. Specifically, as Re- spondent's witness on direct examination, she testi- fied in relevant part: Q. What is it [the lobby area] used for? A. A lobby, it is a place for people to wait. Q. What are they waiting for? A. Sometimes to get into the conference rooms. Some people are waiting for patients or out-patient service, rather than wait down- stairs. That is about it. Sometimes we have an overflow from the surgery waiting room. Other than the above-quoted reference, the record is devoid of any indication that patients use the lobby for any reason. It would thus appear that Re- spondent is not justified in prohibiting solicitation in this lobby as "necessary to avoid disruption of health-care operations or disturbance of pa- tients."' 14 Respondent asserts in its supplemental brief on the no-solicitation rule issue that its ban on solicita- tion in the lobby is valid because members of a pa- tient's family who are in an anxious state awaiting surgery results are deserving of greater protection than the general public. Respondent urges that views expressed by the Supreme Court in .:L.R.B. I:' Subsequent to the incident at issue herein, Respondent has prohihl- ed eating ill the lohhb coatrootm area Wshich as, prior to that prhhihl- lion, commonly used hy some hospital staff employees to use the ele- phone and eat snacks he coalroonm has since een c,nserted into all office 4 . . R B s Ba liw Iloprut/ l. r. ru al 77': Beth EIracl lsirual sv' I. R . upr a ) v. Baptist Hospital, Inc., supra, lend support to its position, and suggests that the Supreme Court in Baptist even equates the need for protection of the patient's family from union solicitation with the need for protection of the patient himself. 15 The General Counsel, however, argues that Re- spondent is attempting to extend the protection af- forded by the Board and courts to patients to the families of patients, but at the expense of the em- ployees' legitimate solicitation rights. He asserts that Respondent's reliance upon those Supreme Court decisions cited as supporting its position is misplaced, and that those cases do not indicate that the cloak of protection demanded by the welfare of the patient should be transferred to the patient's relatives and friends. The General Counsel further contends that patient care areas, wherein no solici- tation can take place, must be directly connected with patient care and directly involve patients. Equating the friends and relatives of patients with patients themselves, argues the General Counsel, is not only beyond the scope of legitimate concern for patients, but the acceptance of such an equation would place the entire hospital out of bounds in terms of solicitation because relatives and friends of patients are everywhere in a hospital. We find merit in the General Counsel's argument. In considering the employees' Section 7 rights to engage in union solicitation with reference to any potential impact which these activities may have on the well-being of patients in health care institu- tions, we are of course mindful of views expressed by the Supreme Court in cases cited by the parties herein. Thus, we have carefully reviewed the record in this case in light of, inter alia, opinions of the Court in Beth Israel Hospital v. L. R. B., supra, Baylor University Medical Center v. N L. R. B., upra, and VN.L.R.B. v. Baptist Hospital. Inc., supra. We are not persuaded, however, that the special con- cern for patient welfare expressed in those opin- ions, and which we share with the Court, compels that a similar protection from organizational solici- tation be afforded members of the public who are not themselves patients in the hospital environ- ment. As noted supra, the lobby at issue in this case is used primarily by the general public, rather than by patients of the hospital. Nor does Respondent claim in its supplemental brief that the lobby is a patient care area or that any aspect of patient treat- ment is administered there; instead, Respondent seeks to introduce evidence regarding the use to which the lobby is put by visitors and families of ' In support f this assertion,. Respondent quoles from the concurring opinion f Jstice lackmun ill Beth Isrcetl ltospita \ L.R R. supra at S0'). as quoted h5 the majoritN in .' 1. R B s fluaptit lopiutl. In . upru at f 12 227 DECISIONS OF NATIONAL AfiOR REL ATIONS 13()ARD patients, as well as alternative areas and means of solicitation available to the Union.16 Having re- viewed the evidence with respect to this lobby, fo- cusing particularly upon the delivery of health care services at EMMC as that may involve the lobby area at issue, we conclude that union solicitation in this lobby will not adversely affect patient care or disturb patients. Accordingly, we affirm the Ad- ministrative Law Judge's finding that Respondent's interference with off-duty employees engaging in union solicitation in this lobby violated Section 8(a)(l) of the Act. Inasmuch as we agree with the Administrative Law Judge, for the reasons fully stated by him, that Respondent has committed unfair labor prac- tices in violation of Section 8(a)(l), (3), and (5) of the Act, we shall adopt those portions of the Ad- ministrative Law Judge's recommended Order re- quiring Respondent to cease and desist from its un- lawful conduct and to take affirmative actions de- signed to restore the status quo ante adhering prior to Respondent's unlawful actions and to make whole employees who suffered monetary losses as a result of those unfair labor practices. 7 We shall also adopt the Administrative Law Judge's recom- mendation that the notices to employees required by that Order be mailed to the homes of all present employees and all those employed by Respondent since March 1, 1977,t' whether in the bargaining unit or not. We find this requirement appropriate in view of Respondent's extensive violations, the evi- dence that its unlawful conduct was motivated in part by a desire to squelch any unionization in order to deter further organizational efforts with respect to other hospital employees, and because of the passage of time since commencement of Re- spondent's unfair labor practices due to the pro- tracted nature of these proceedings. Our primary concern with regard to the posting and mailing of notices is that all employees potentially affected by Respondent's actions be apprised of the unlawful nature of these acts and assured that they will not be repeated. We shall not, however, adopt those additional remedies recommended by the Administrative Law I6 Respondent in its brief identifies the cafeteria, timeclock areas, break or lounge areas on patient floors, and exterior grounds as areas wv.here so- licitation was permitted. The General Counsel, in his brief in opposition. avers that Respondent's statement in this regard is not true, and that the no-solicitation rule was in fact enforced in such areas, claiminig that the fact that Mclnnis and Rose did solicit in the cafeteria without being ousted can only be attributed to Respondent's ignorance of their activi- ties. Assuming, urguendo, the availability of these additional areas fitr so- licitation, e nonetheless cnclude that Resptttdent's ban o solicitition in the second floor public lobby is not justified a See Ogle Protection Servcei, Inc. X183 NLR 6hX2 (1970). '" The first charge in this case was filed on September 1, 1977 Sec I(b) of the Act therefore bars consideration as unfair labor practices of any conduct occurring prior to March I, 1977 Judge which would require Respondent to publish the notices in a newspaper of general circulation and to post them for a -year period unless impasse or a contract is reached prior to that time, to bar- gain 15 hours per week in the presence of a repre- sentative from the Federal Mediation and Concilia- tion Service should the Union so request, to pre- pare written bargaining progress reports to be sub- mitted to the Regional Director for Region I peri- odically, and to reimburse the Union for any and all expenses incurred in bargaining with Respond- ent from March 1, 1977, until June 22, 1977, the date on which bargaining ended. Respondent has not demonstrated that it has a proclivity to violate the Act once its actions have been adjudicated un- lawful, and we do not find these further remedies appropriate in these circumstances. Accordingly, we shall modify the Administrative Law Judge's recommended Order by deleting provisions relating to these recommended requirements. 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, as modi- fied below, and hereby orders that the Respondent, Eastern Maine Medical Center, Bangor, Maine, 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 paragraphs 2(c), (d), and (e): "(c) Rescind any rules restricting the areas and times in which employees may solicit on behalf of labor organizations as they apply to times other than working time and to areas other than immedi- ate patient care areas; also rescind any no-access rule insofar as it applies to off-duty employees and prohibits them from soliciting on behalf of labor organizations in the outside nonworking areas of the hospital premises. "(d) Upon request, bargain collectively and in good faith with MSNA as the exclusive bargaining representative of the employees in the above-de- scribed unit. "(e) Post at its hospital facilities in Bangor, Maine, copies of the attached notice marked "Ap- pendix." Copies of said notice, on forms provided by the Regional Director for Region 1, 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 228X IASITIRN NAINI NMEt)DICAI CTNTl FR by Respondent to insure that said notices are ot altered, defaced, or covered by any other material. Copies of said notice shall also be mailed to all eni- ployces on the payroll as of March 1, 1977, and to all present employees at their homes." 2. Delete paragraphs 2(f) and (g) anid relctter the subsequent paragraph accordingly. 3. Substitute the attached notice for that of the Administrative La\w Judge. APP lEND)IX Nol Ict To EM ll OYI.it. S POSItIt) BlY ORI)IR OFt Tit NA\IONAi LABOR R ..,vJ IONS BOARI) An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WI. w.lll. NOI promulgate, maintain, or en- force any rule, regulation, or other prohibition against employees who solicit on behalf of any labor organization on our hospital premises in other than immediate patient care areas, during employees' nonworking time. Wi. Wiil. NT promulgate, maintain, or en- force any rule, regulation, or other prohibition which prevents off-duty employees from dis- tributing or soliciting on behalf of any labor organization in the outside nonworking areas of the hospital premises. Wt! wiLt. NOT interrogate you regarding your union sympathies. WIt witL. NOT withhold general wage in- creases which are otherwise due to employees because they have chosen to bargain collec- tively through the Maine State Nurses' Associ- ation (MSNA) or any other labor organization. WL Wll NOT refuse to bargain in good faith with MSNA as the exclusive collective- bargaining representative of: All full-time and regular part-time general duty nurses (staff RN's) employed by the Employer ait its Bangor, Maine Medical Center locations, including nurse anesthetists anid all instructors and assistant instructors at the School of Nursing hut excluding em- ployee education instructors, supervisors, as- sistant supervisors, head nurses I and II, guards, all other supervisors as defined in the Act, ad all other employees. WVI: il I. NOI make changes in wages, hours, and terms and conditions of employ- mnicnt in the above unit of employees without first notifying and consulting ith N;ISNA af'- fording it the opportunity to bargain about these subjects. W. IV ll NOI interfere with restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WIE Will rescind any rules restricting the areas and times in which employees may solic- it on behalf of labor organizations as they apply to times other than working time and to areas other than immediate patient care areas: also rescind any no-access rule insofar as it ap- plies to off-duty employees and prohibits them from soliciting on behalf of labor organizations in the outside nonworking areas of the hospital premises. Wl wlit , upon request, recognize and bar- gain with the above-named labor organization as the collective-bargaining representative of the employees in the unit described above re- specting rates of pay, wages, hours, or other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. Wi c witi. make whole all the bargaining unit employees affected for any loss of pay they may have suffered as a result of our dis- crimination in refusing to grant to them gener- al wage increases on and after about April 3, 1977, to which they would have been entitled but for their protected activity on behalf of MSNA, plus interest. EASTEIRN MAINI MEI)ICAI CENTER DECISION SIATHr MtiNT OF l'tl CASF RORI-Rr A. GIANNASI, Administrative Law Judge: This consolidated case was heard before me for 9 days in January and May 1978 in Bangor. Maine. The representation case, Case ! RD-888, was initiated by the filing of a petition to decertify the Maine State Nurses Association (referred to as MSNA or the Union) which had been certified by the Board as the exclusive bargaining representative for Respondent's nurses. Re- 22) I)ICISI()NS OF NATI()NAL L.AI()OR REL.A'I)NS B()ARI) spondent and MSNA had been bargaining for a first col- lective-bargaining agreement. Pursuant to a Stipulation for Certification up on Consent Election executed by the parties and approved by the Regional Director for Region 1, an election was conducted on July 28, 1977. among Respondent's nurses in an agreed-upon appropri- ate unit.' MSNA lost the election but filed objections to the election based on conduct of Respondent which it al- leged interfered with a free and fair election and re- quired that the election be set aside and a new one held. O()n September 28, 1977, the Regional Director issuel a Report on Objections in which he recommended that all of the objections but one be overruled and that one, ()b- jection 3 involving Respondent's no-solicitation rule, be sustained. He therefore recommended that the election be set aside and a second election be directed. ()n Octo- ber 4, the Regional Director issued a Supplemental Report on Objections revoking the earlier report and stating that Objections 2, 4, and 5 raised issues of fact and law best resolved by an evidentiary hearing. MSNA thereafter withdrew Objections 4 and 5. On October 28, 1977, the Regional Director issued a complaint in Case -CA-1357() which he consolidated with the remaining issues in the representation case, Case l-RD-888. The complaint alleged that Respondent vio- lated Section 8(a)(1) of the Act by soliciting employees to decertify MSNA, maintaining and enforcing unlawful no-solicitation and no-access rules, and specifically inter- fering with legitimate union solicitation; Section 8(a)(3) and (1) of the Act by withholding, since April 177, wage increases from bargaining unit employees while granting them to nonunit employees; and Section 8(a)(5) and (1) of the Act by failing to bargain in good faith with MSNA since August 25, 1976, and at all times thereafter. 2 Respondent filed an answer essentially denying the substantive allegations in the complaint. All parties filed proposed findings and conclusions and supporting briefs which were received on or about August 16, 1978. Upon the entire record in this case, the briefs and con- tentions of the parties, and from my observation of the witnesses and their demeanor, I hereby make the follow- ing: ' he appropriate collective-bargaining unit, as set forth in the stipula- tlion, s: All full-time and regular part-time general duly nurses (staff RN5') employed by the Employer at its tiangor. Maine Medical Ceuiter lo- cations, including nurse anesthetists ad all insiruclors ad Asslstant instructors at the School of Nursing but excluding employee educa- lion instructors, supervisors, assistant supervisors, head nurses I and It, guards, and all other supervisors as defined in the Actl and all other employees. The Cieneral Counsel as permitted to amend the complaint at the hearing over the objection by Respondent to add a charge f unlawful interrogalion I also granted Respondent's motion to specify certain as- pects of the 8(a){5) allegatin f the complait. And I granted the iern- al Counsel's motion to amend the 8(a)(5) allegation by adding a genieral charge that Respondenl's conduct was "calculated tlo undermine the status of the Unlilon as exclusive bargaining agent." FINI)INGS 01 FA( I 1. tLUSINI.SS 01 RI SPONI)I-NI Respondent operates a nonproprietary hospital in Bangor, Maine, where it provides medical and health care services. It receives from points outside Maine goods valued annually in excess of $50()(XX) and anniuall receives gross revenue in excess of' 25()}(XX) from the op- eration of its medical center. Accordingly, I find, as Re- spondent admits, that it is an eriployver engaged in corn- mrce within the meaning of Section 2(2). (, and 7) of the Act. 1. Tl'1 I.AIlOR OR(ANIZA\ II()N The complaint alleges that MSNA is a labor organiza- tion within the meaning of Section 2(5) of the Act which reads as follows: The term "labor organization" means any organi- zation of any kind, or any agency or employee rep- resentation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Respondent denied this allegation stating, in its answer, that at its annual meeting in September 1977, MSNA voted to discontinue serving in the capacity of a labor organization. In an amended answer filed on January 3. 1978, Respondent added that MSNA was "incompetent to serve as exclusive bargaining representative for the nurses by virtue of the fact that the union nmembership includes large nunibers of supervisory personnel. N. L.R.B. v. Annupolis Emergenv ospital .Is ociation, 561 F.2d 524 (4th Cir. 1977)." I reject Respondent's contentions and find that MSNA is a labor organization competent to represent the bar- gaining unit employees. MSNA was first certified by the Board on May 26, 1976, as bargaining representative of Respondent's nurses. It bargained with Respondent until June 1977. Respondent made no objection to the status of MSNA as a labor organization during this period. Ac- cording to its bylaws, MSNA, through its Council on Economic and General Welfare, directs a program for nurses "eligible for representation under . . Federal laws" and has the authority to execute collective-bar- gaining contracts. By virtue of this authority, the Coun- cil undertook various organizing campaigns, including the one involved at Respondent's facility. Evidence was adduced that, prior to the 1977 annual meeting of MSNA, a resolution was prepared stating that the economic and general welfare program had caused divisions among the membership. The resolution pro- posed that MSNA suspend its economic and general wel- fare activities for 1 year and that the "future direction of Economic and General Welfare will be determined by the Board of Directors between conventions." The reso- lution was passed unanimously at the September 25, 1977, meeting of MSNA. During the deliberations prior to the vote on the resolution, there was discussion and an 23() EASTERN MAINE MEDICAL. C(ENTEIR understanding that the resolution did not apply to the MSNA activities at Respondent's facility. A this point. MSNA had filed objections to a decertification election as well as charges of unfair lanor practices which spawned this litigation. MSNA President Vera Gillis tes- tified that the membership understood that the MSNA was legally and morally bound to fulfill its obligation to the nurses it represented at Respondent. The minutes of the meeting confirmed that "the MSNA Board is legally bound to complete the activities at Bangor (EMMC) if these activities are reopened by a pending NLRB ruling. No new, activities may be initiated by the MSNA, G/WV Council." A few days after the meeting, Gillis added to the resolution an explicit statement that: The intent of this resolution was not to withdraw from the ongoing activities at Eastern Maine Medi- cal Center but to halt any further action outside EMMC for the time being without the knowledge and consent of the Board of Directors. The resolution together with the explanatory note was sent to the parent American Nurses Association as re- quired by the resolution. At its November meeting the executive board affirmed a continued commitment to the reolution of the conflict at Respondent's facility. Based on the above, it is clear the MSNA did not completely vitiate its intent to act as a labor organization and it expressly preserved any such responsibilities as might flow from favorable resolution of the pending issues before the National Labor Relations Board with respect to Respondent's operations. Respondent's second argument is also without merit. MSNA was certified by the Board on May 26, 1976, after it had won a Board sponsored election. MSNA first started organizing Respondent's nurses in the spring of 1975. At no time during the Board representation pro- ceeding did Respondent raise the contention that MSNA was incompetent to act as bargaining representative al- though MSNA undoubtedly had as many supervisory members then as in January 1978. Nor did Respondent raise the issue in Case 1-RD-888 prior to the election or at any time before its amended answer to this proceeding was filed in January 1978. Moreover, as shown, infra, in this decision, Respondent negotiated with MSNA throughout late 1976 and half of 1977 as if it were "com- petent" to bargain for the nurses. In these circumstances, I find and conclude that Respondent has waived or is es- topped from now asserting any right it may have had to object to the competence of MSNA as bargaining agent because it admits supervisors to general membership. Respondent's argument also fails as a matter of sub- stance. Although MSNA admits supervisors to general membership and two supervisors serve on its executive board Respondent conceded that none of its supervisors a It is doubly ironic that Respondent seeks to a ail itself of this issue. Aside from being excepted from the resolution, Respondent, by its cron- duct, caused the MSNA disenchantment with further organizing and bar- gaining actistles. In her report in support of the resolution at the Sep- tember convllienion to suspend council activity. the chairperson of the ('ouncit stated that the financial drain and use of staff time caused by the bargaining slith Respondent ere major factors for the resolution. She also pointed io the results of the decertificatlon election. are officers of MSNA and it has not submitted evidence that its supervisors were members in significant numbers. The Board has held that, absent significant participation by an employer's own supervisors in a bargaining agent's affairs, there does not exist a sufficient supervisory taint to render a union incompetent to serve as bargaining agent. Oak Ridge ospital (/f the Unitd Methodist Church, 220 NLRB 49 (1975); ('arl Cihnic Association, 192 NLRB 512. fn. 5 (1971). In any event, the economic and general welfare program of MSNA-the collective- bargaining arm of MSNA-is limited only to nurses "eli- gible for representation" under Federal law. There is no evidence that this eligibility requirement was not en- forced. Respondent's supervisors did not participate in the election which selected MSNA and they are not part of the agreed-upon bargaining unit. Finally, the bargain- ing in this case was undertaken through a local chapter of MSNA with elected officials and committees from Re- spondent's employees. Although officials of MSNA and the parent American Nurses Association (ANA) headed the union bargaining team the rest of the members were employees of Respondent's and the local chapter, operat- ed under its own bylaws, fashioned its proposals, and had the right to ratify or reject any agreement reached. The Board has held that where, as here, the bargaining authority of a certified union has been effectively dele- gated to a local unit with no supervisory influence there is no basis to disqualify the certified union because of su- pervisory participation in its affairs. Sister o Charity of Providence, St. Ignatuis Providence, d/h/a St. Patrick Hos- pital, 225 NLRB 799 (1976). 4 As the First Circuit has stated in analyzing a similar contention, "there is a considerable burden on a non-con- senting employer . . . to come forward with a showing that a danger of a conflict of interest interfering with the collective bargaining process is clear and present." .L.R.B. v. David Buttrick Company, 399 F.2d 505. 507 (Ist Cir. 1968). This Respondent has not done. It has failed to establish that there exists any conflict of interest or any other prejudice to it by virtue of bargaining with a union simply because it admits supervisors to general membership and to its executive board. Respondent's reliance on the Fourth Circuit's decision in VL.R.B. v. Annapolis Emergency Hospital Association, 561 F.2d 524 (4th Cir. 1977), is misplaced. First, in that case, there was no waiver or estoppel by virtue of a long period of actual bargaining as there was here. In Annap- olis, unlike here, the employer urged supervisory domina- tion from the beginning of the representation case. Sec- ondly, in this case, the MSNA was limited by its bylaws to bargain only through the Council of Economic and General Welfare and only for "eligible" employees which by its terms excluded statutory supervisors. It does not appear that the operative council in Annapolis had a similar eligibility requirement (217 NLRB 848). Thus, here, unlike in Annapolis, there was no actual or potential supervisory domination of the bargaining agent. I The danger posed by suprrrislr dominili ,on of a bargailinig agent is the possibihtll that an employer may sind up ilting tcross Ihe bargain. Ing table from his itn supervis,ors r those of hi, ompetlt irs This is hardly a danger here 231 I)ECISIO)NS OF NATI)NAL I.AIO)R RLATIONS h()ARD To the extent that the Fourth Circuit's decision can be read to conflict with Board decisions on conflicts of in- terest, supervisory domination or effective delegation to local chapters, I am bound by the decisions of the Board. 111. ti1 5 I AC IS UNI)IiRLYIN(, 'I'tIE AI 1I.(i.) NFAI IR I A\l()R PRACICIIS A. Background Respondent runs the second largest hospital in the State of Maine with almost 400 beds and a gross value of patient services totaling some 30 million dollars. It em- ploys between 1400 and 1500 employees, over 2(00 of which are registered nurses, the basic unit herein. The hospital has a school of nursing where students receive diplomas and are often hired as graduate nurses who must then be licensed to become registered nurses. Re- spondent's director is Robert Brandow. MSNA started organizing the registered nurses at Re- spondent's facility in the spring of 1975 and filed an elec- tion petition with the Board on January 23, 1976. An election was held on March 18, 1976, pursuant to a Stip- ulation for Certification Upon Consent Election. The nurses voted to be represented by MSNA and Respond- ent, which had opposed MSNA representation for its nurses, filed objections. There is uncontradicted testimo- ny, during the early days of the organizing drive, that Administrator John Johnson expressed concern to his aides about the MSNA campaign and said the Union had to be "stopped." A day after the election, on March 19, 1976, Respond- ent distributed a memorandum to all employees announc- ing improvements in wages and benefits. Registered nurses in the unit which had recently voted in the Board election were explicitly excluded. Wage increases for all nonbargaining unit employees were implemented during the week of April 14, 1976. The increases averaged about 9 percent for certain classifications and about 6 percent for another group of employees. Also during this period, Respondent announced the following benefits for all employees except registered nurses: an increase in hospital paid life insurance and professional liability insurance. On May 26, 1976, the MSNA was certified as bargain- ing representative for the registered nurses. B. Bargaining in the Latter Part of 1976 In August 1976, after meeting with a committee of Re- spondent's employees to fashion bargaining proposals, MSNA mailed its first contract proposal to Respondent. It was received on August 26 and contained both eco- nomic and noneconomic items. The parties first met on October 14, 1976, for the pur- pose of setting out ground rules for future negotiating sessions. Nancy Chandler, MSNA director of economic and general welfare, headed the MSNA team along with elected employee representatives, including Local Presi- dent Pat Martin and others. The chief management spokesman was attorney Malcomb Morrell. MSNA asked that the employee representatives on the bargaining com- mittee be given time off from work to participate. Re- spondent refused. The parties agreed that the sessions would begin at 4 p.m. and last as long as they were pro- ductive. At this meeting, Respondent presented its first none- conomic proposal. Morrell stated that Respondent would discuss only noneconomic proposals first. He also said that the noneconomic matters would hae to he agreed upon before discussion of the economic issues and Re- spondent's economic proposals would be contingent on acceptance of Respondent's noneconomic proposals. Morrell insisted that the parties bargain on the nonecon- omic issues first but MSNA did not agree to this proce- dure. MSNA also requested that bargaining sessions include a number of consecutive 2- and 3-day periods because its chief negotiator, Les Kuykendall, an official of the parent American Nurses Association, had to travel from Kansas City, the headquarters of ANA. Morrell declined saying it was against his principles to negotiate more than -day per week. On November 4, Morrell reviewed some of the ground rules discussed at the October 14 meeting and stated that the parties had agreed to discuss noneconomic matters first and to agree to them before discussing eco- nomic matters. Nancy Chandler, who had been present at the October 14 meeting, testified that she objected and stated that MSNA officials had not agreed to this proce- dure. Kuykendall confirmed that MSNA officials object- ed and stated they did not agree to this procedure. Mor- rell testified that there had been agreement on this proce- dure on October 14 aid that, when he raised the matter again on November 3, neither Kuykendall nor any other MSNA representative objected. He also testified that, on November 4, when there was a dispute between him and Kuykendall over whether to discuss an MSNA economic proposal Kuykendall got angry and Morrell reminded Kuykendall of the agreement to discuss only nonecono- mic matters. According to Morrell, Kuykendall denied the agreement. Respondent's administrator, John John- son, who was present at the negotiations on November 3 and 4, essentially corroborated Morrelli 3 I do not credit the testimony of Morrell on this issue and credit instead the testimony of Kuykendall and Chandler that there never was an agreement by MSNA officials not to discuss economics until the noneconomic issues were resolved. First I have credited Chandler and 1 T'his is based on the estimony (lf Nancy Chan;dler and i)oroth Baron who were straightforward and candid lties\si Baron particular- ly was a witness who as totally without guile and hillth uitllesse carl- didl1 admitted to matters which w:cere cntrars ihe inlterests of M SNA I d, riot credit the contrary testimony of Mo rrell which was self-setrsilg, argumentative. and, at limes, easive lie ted slt lforth his procedure that noneconomics would be negotiated fir - well before Octoher 14 when he prepared Respondent's first proposal. nd his sa as hs argaill- ing procedure over a 20-ear period His Ilnote' f he mccting do ot x- plicilly sate that MSNA agreed to his proced ure he notes atle "non economics firsl" ad 'ec(iol mics a a packagc" te u tlaXt ip l sitl of these statements leads me to conclude, contrar) to Morrell's estirnlors, Ihat tihe notes "vere not maillnt to show igreerlent iron these rilrttcrs since the Union never agreed ito "economics as package" Significantly. i an exchange of etters after this October 14 meeting conflllirmirg dates and times fr future meeting,. Morrell ne.er merintirnled an agreemenrt rio, to nregoiate economic ma;lters. 'ina l l y (r\ Conover, who was preserin at this meeting, was nlt called as a witness to corroborate Morrell `h Johnsonl "as not present at tihe October 14 rctling 232 EASTFSRN MAINE MEDICAL CENTER Baron that there was no agreement not to discuss eco- nomics on October 14. Moreover. according to both Johnson and Morrell, at the November 4 meeting Kuy- kendall and Chandler definitely refused to agree to Mor- rell's procedure. Yet Morrell never really accepted this reality. He testified that even after November 4-until the end of the January 5 meeting--he adhered o the view that there had been a prenegotiation agreement "which on November 4, somebody was trying to re- tract." Indeed, in his December 13 response to a letter from Nancy Chandler concerning NMSNA's agreement not to file charges if Respondent gave the nurses the 1976 general wage increase it gave other employees. Morrell volunteered that there wvas an agreement to dis- cuss and agree to noneconomic items before discussing economic matters, even though, by his own testimony, he knew on November 4 that there was no such agree- ment. Even in January when he agreed grudgingly to MSNA's persistent effort to have him submit an econoin- ic proposal Morrell volunteered that he thought it was premature.' From these facts, and from observing Mor- rell's demeanor on the witness stand, I am convinced that he testified that there was agreement on this matter because he wished it and had proposed the procedure. He impressed me as a man who was so arrogant in ex- pressing his views that he could not see that others had a different view. Accordingly, although Morrell's testimo- ny on dates was more accurate than that of the other witnesses, I do not credit his substantive testimony. To the extent that Johnson corroborated Morrell on this issue I believe he was tailoring his testimony to support what he perceived to be Morrell's position and I also reject his testimony. On October 14, the parties agreed to meet again on November 3 and 4 and on two other dates in November and also on December 1. The first actual bargaining session was held on No- vember 3. Morrell was the chief Respondent negotiator and Kuykendall was the chief MSNA spokesman. At this meeting and the meeting the next day Kuykendall and Morrell explained their proposals. In the course of Kuy- kendall's explanation of the MSNA proposal Morrell stated that Respondent was not going to negotiate on economic matters until the parties settled the nonecono- mic portions of the contract as a package. He said that only at that point would Respondent submit its economic package. Kuykendall rejected this position and said he was going to talk about every provision in the MSNA proposal. At each point when an economic issue in the MSNA proposal was discussed. Morrell mentioned Re- spondent's position on discussing and agreeing on none- conomic matters first. Kuykendall also requested health insurance information from Respondent and Morrell promised to provide the information at the next meeting. There were no agreements-tentative or otherwise- made on November 3 and 4. Kuykendall again mentioned the necessity lbr back-to- back bargaining sessions due to his having to commute It Is Nali' C (handler's ucontradlicled tecsllnil? that. at oIlte Of Ilt hargainilng sessir<ls fler recel rt f Morrell s December 13 letter. MSNA officials again pritItl Morrell's erroneous wic (if a all gllegld agree- merIt to Bangor from Kansas City. Morrell refused to have such sessions stating that his schedule would not permit this hut that, if he felt that the parties were making prog- ress. he would consider the proposition. The parties met again on November 17 and 22. They exchanged revised proposals. There was no discussion of economics at the November 17 meeting except that Kuy- kendall explained the MSNA provision on insurance and repeated his request for insurance information. Respond- ent did not provide the information and, according to Kuykendall, Morrell reminded him that this was an eco- nomic issue which Respondent would not discuss until there WAas agreement on the noneconomic issues Kuy- kendall repeated this on November 22 when Kuykendall attempted to discuss other economic issues. The parties reached tentative agreement on some minor proisilons as well as parts of recognition clause with the exception of a dispute over whether the contract would coser bar- gaining over matters of professional practice. Respondent's original proposals included the follow- inlg: .1anagement Functio,.s Section . The Medical Center shall continue to have the exclusive right to take any action it deems appropriate in the management of the Medical Center and the direction of the work force in ac- cordance with its judgment, unless such right is ex- pressly limited by a specific provision of this Agree- ment. All inherent and common law management functions and prerogatives which the Medical Center has not expressly modified or restricted by a specific provision of this Agreement. are retained and vested exclusively in the Medical Center. It is recognized that except as expressly modified or restricted by a specific provision of this Agreement. such rights, powers, authority and functions in- clude, but are by no means whatever limited to, the right to establish and administer policies and proce- dures related to patient care, research, education, training, operations, services and maintenance, and other matters affecting the functioning of the Medi- cal Center; the full and exclusive control, manage- ment and operation of the Medical Center's facili- ties: the determination of the scope of its activities, programs and services; the location of the facilities to be use: the materials, equipment, technique and methods to be utilized: the right to establish or change shifts, schedules and standards of work; the right to establish, change, combine or eliminate jobs, positions, job classifications and descriptions; the right to establish wage rates for new or changed jobs or positions; the right to establish or change in- centive or bonus compensation: the right to intro- duce new or improved procedures, methods. proc- esses, facilities, machinery and equipment or to " Seseral of Rspondent's ubshequent proposal ,,on the recognitiont clause, more prnliarl. the scope of he unit. conlllalntd all asterisk Ildi calilig thal is propos:al 'sas based rnl NISNA agreetlent to R,pondeilt's nanlllaglent rights nd finllit5 clause 233 I)ECISI()NS OF NATIONAL LAO()R RELATIONS tt()ARi) make technological changes; the right to maintain order and efficiency; the right to contract or sub- contract any work; the determination of the number, size and location of its facilities, and the extent to which and the means and manner by which, such facilities shall be operated, relocated, shut-down or abandoned; the right to terminate, merge, consolidate, sell, or otherwise transfer the Medical Center or any part thereof; the right to make and enforce safety and security rules and rules of conduct, the determination of the number of em- ployees, the assignment of duties thereto, the man- ning of equipment, and the direction of the working forces, including but by no means limited to hiring, selecting and training of new employees, and sus- pending scheduling, assigning, discharging, laying off, recalling, promoting, retiring, demoting, disci- plining, and transferring of its employees. The Medical Center's not exercising any function hereby reserved to it, or its exercising any such function in a particular way, shall not be deemed a waiver of its right to exercise such function or pre- clude the Medical Center from exercising the same in some other way not in conflict with the express provisions of this Agreement. Section 3. Finality. The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and oppor- tunity to make demands and proposals with respect to any subject or matter within collective bargain- ing, and that the understandings arrived at after the exercise of that right are set forth in this Agree- ment. Therefore, the Medical Center and the Asso- ciation, for the life of this Agreement, each volun- tarily waive the right to bargain collectively with respect to any subject or matter referred to or cov- ered in this Agreement, or with respect to any sub- ject or matter not specifically referred to or cov- ered in this Agreement. The express provision,, of this Agreement, for its duration, therefore constitute the complete and total agreement between the Medical Center and the Association with respect to rates of pay, wages, hours of work, and other con- ditions of employment. It is further agreed that this Agreement can only be added to, detracted from, altered, amended, or modified by a document in writing, signed on behalf of the parties hereto, by their duly authorized representatives. Respondent did not change these two clauses from its original proposal on October 14, 1976, to the end of ne- gotiations. At one of the November meetings Morrell insisted that any ultimate agreement must include the management rights and the finality clause set forth above. The parties had previously agreed to meet on Decem- ber 1, 1976. However, on November 29, Morrell sent a telegram to Kuykendall cancelling the meeting stating that he could not attend "due to unexpected circum- stances." On December 2 1976, Nancy Chandler wrote a letter on behalf of MSNA to Robert Brandow, Respondent's director, stating that MSNA had learned of Respondent's 1976 pay raises to all employees except bargaining unit employees. She invited Respondent to extend this raise to bargaining unit employees and stated that MSNA would not file unfair labor practices if Respondent ex- tended the pay raise to the nurses. Morrell responded in a letter dated December 13, 176. He stated that pay raises were "tied to the collective bargaining process and the give and take of the negotiating table." C. Wage and Bentfit Increase in Late 1976 and Earlv 1977 During December 1976, Respondent undertook a peri- odic survey, as it ordinarily did at least once every year. usually in December, of wage rates for employees." As a result of these surveys Respondent determines the level of wage rate increases for its employees. The fact of the survey is usually announced to employees either orally or in writing. On December 23. 1976, Brandow sent a written memorandum to employees announcing the "pe- riodic community survey of wages which is the first step in determining the amount of our next general wage in- crease." The memorandum also stated Respondent's policy "to maintain our wages and benefits equal to or better than the wages paid in the community and other hospitals." The memorandum also announced a (X) per- cent increase in life insurance effective January 1977-- from $4,00(X to S8,(XX) for all employees excluding the bargaining unit employees. The premiums were to be paid completely by Respondent. The nurses had not re- ceived an earlier increase inl this benefit from S2,(XX) to $4,(XX) announced on March 19, 1976. On February 1, 1977, Respondent announced a fully paid new benefit for all employees-a long term disabil- ity program. Again the nurses were excluded. In another memorandum on March 3, 1977. randow announced a general wage increase effective April 3. 1977, except for bargaining unit nurses. The increase av- eraged about 7 percent. On April 2, 1977, another Brandow memorandum an- nounced the implementation of the professional liability insurance, a benefit first announced the previous March, for all employees except bargaining unit nurses. On April 11, 1977, another Brandow memorandum an- nounced increases in shift-differential pay, a benefit which the memorandum stated, "will not affect the bar- gaining unit nurses." The memorandum continued: This increase comes after a careful survey of other hospitals and the community, and it reflects the importance of our shift employees to the oper- ation of the Medical Center. As I said in my letter to you on March 3, "Our goal is to keep EMMC wage and benefit levels Hospital Director railndow lestilied that the surrey was cnducled about 10 limes in tilhe -1/2 yc3ar he has' bhen ilemployed by Rcspoldenll Ihere were ur'e),s in )eceriher of 1975. 1 76, and '177 234 EASl ERN MAINE MFEI)CAL CEN I I:R competitive with those of other employers in the community, and with those of other hospitals in the region." his increase in thie shift differential, the December incrcase i life insurance. the February addition of long term disability insurance, and the April wage increase are all part of our continuing plan to keep us equal to or better thaln ccmrmunity levels The memorandum ended, as other previous ones did, hby Brandow thanking employees "for your continued conm- mitment to EMMC." Increased and nesw benefits were highlighted also in weekly bulletins distributed to employees by Respondent during the period from December 1976 to June 1977. t the bulletins it was mentioned that nurses were excluded from the benefits because as one bulletin dated Decenl- ber 27, 1976, concerning increased life insurance, stated, "their benefits are being negotiated by the MSNA." At this point, Respondent had not yet submitted an ecollon ic proposal to NISNA. D. Further Bargailng in the Firot Quarter )(/'1977 The parties met agail t on January 5, 1977. At this meetinig Kuykendall submitted a counlterproposcl to Re- spondent's proposal on management rights. Morrell in- sisted on Respondent's proposal and nro agreement was reached on this issue. Other issues ere discussed and Kuykendall asked Morrell for an ecotnomic proposal and for certain inlsurainc informllation lihe had requested ill November. Morrell, according to his own testimony, stated that since the parties were not close to resolving the noneconomic issues Respondent had not even pre- pared a economic package and asked if Kuykendall really wanted to see it. Morrell characterized MSNA's economic demands as extraordinarily high." Kuykendall countered with a characterization that the salaries were barely above the "poverty level." After further discus- sion, the MSNA negotiators caucused and decided to suspend negotiatiolns and ask for the intervention and as- sistance of a Federal mediator. Morrell testified that he told Kuykendall that he was prepared to continue to ne- gotiate oil noioeconomics and that he would make an economic proposal at the next meeting. The parties met again this time in the presence of a Federal mediator-on January 26. 1978. The parties brought the mediator up to date and Respondent submit- ted a new noneconomic proposal. According to docu- mentary evidence, the parties made some additional ten- tative agreements by this date, particularly in article VIII, education and committees, and article XIV, leaves of absence, of Respondent's proposal. Respondent presented its first economic proposal at the end of this meeting at or about 9:30 p.m. According to Morrell's testimony, "it was not until the end of the meeting that anybody asked us for our proposals" and there was no discussion of the economic proposal on January 26. The proposal provided, among other mat- ters, increases in wages for the nurses in the amount of about 5 percent over their present scale commencing when the contract was agreed upon. The nurses had nrot received a general wage rate increase since August 1975. I'he economic proposal of January 26 stated that it was being made "in connection with the non-economic pro- posals" submitted the same day and was subject to: "(1) Agreement by the parties as to non-economic issues, and (2) acceptance of the economic proposals as a package." Fhe first economic proposal provided for shift differ- entials iof 37 cents and 50 cents. It also provided for 2,0(Xh) paid life insurance for the first year, and an in- crease to $8,(XX) in the second year. Respondent offered to continue present health insurance and liability insur- ance henefits applicable to the nurses. In the second year Respondent offered to increase the liability insurance to I millioti dollars atid to reduce the waiting period for hcaltl bhcefils. Responldenit also pros ided for the con- tinuatiotl of exising pension antd leave plans. I'he parlies met againi on Febuary II and 16, 1977, in the presence of the Federal mediator. MSNA made scaled dowtn or altered proposals on wages and other benefits on Febhruar I I and Respondent also presented a revised nonecoilomic proposal. Much of the negotiations on -bchruary 11 dealt with grievance and arbitration pro- visions. According to John Johnson, the Respondent's administ rator, on Febhruar 1 I the parties met with the mediator until about 2:30 p.nt at which time the parties met together. At this point, according to Johnson. the miediator asked for a response to Respondent's economic proposal aid Kuykendell said he could not agree to it Morrell testified there ¥was no explanation of Respond- cnt's proposal at this meeting. Johnson, however, testi- fied there was some discussion of the competing econom- ic proposals. For examnple, Kuykendall pointed out that Respondent's economic proposal for life insurance pro- vided $2,(XX) for the first year and $8,000 for the second year but that notiunit eiployees were already receiving S8,O(X) and thus the offer was an "affront." The nurses were then receiving life insurance of $2,0X00 ad had not received the last two increases which the nonunit em- ployees had received. According to Johnson, when the mediator asked about "the $2(X) as opposed to the $8()0," Morrell responded to the effect that he was not going to change existing benefits during negotiations andl "I don't know of any idiot that does that." Kuykendall then asked for "detailed information on salaries" and Morrell said that his request should be in a manner that did not require too much expense on the part of Re- spondent. After some further discussic n the mediator said that he "hoped" the parties could find a common ground on wages. Johnson also testified that at one point "Mr. Morrell agreed that there must be an agreement on noneconomic issues first" and that the mediator "clari- fied" that "the acceptance of [the] economic package is subject to working on non-economic issues."'0 I"' t1, lesilmti mony l Jlfhnson's s cryplic With whom did Morrell agree anid whatl did he mediator tIarlfs' -anld seemed lo be an effort to huttres, the Ictstlllilr if Morrell. who precel ed him on the %,ltness stand, hal there wais ian agreeitCti li discuss nloneconlomics first and hat the mediator soelh'.: agreed with Respondent's position ad compelled Ihis pproac h 1t ll .ic lcorunl there "t 'as no longer any agreemenl to dl, cuss rloellolroilllis lirst oin Ft'hruars I Aild Johnson's (ln testinmonr l concerilrlg thc nlwilh.tior', eTrts oi this dat. ad in Ma. 1977 to has, the prtlS reaich agrcctnent on so1mtcIIC .oitnli, isllCs, rtlutle Morrell', ( ,ntnu d 215 I)(lISI()NS ()F: NAII() NAI. IABOR RELATI()NS ()OARD ()On February 18, according to Johnson, the only dis- cussion of economics was that, toward the end of' the meeting, Kuykendall asked for a "counter to economics and Mr. Morrell said no." Morreli confirmed that there was no discussion of economics at this meeting. The parties met again on March 3 and 4. MSNA made another proposal at this time concerning wages iand benefits. MSNA officials also agreed to accept Respond- ent's management rights clause if Respondent accepted the MSNA agency shop proposal. Respondent refused. According to Kuykendall Morrell asserted during one of these sessions that since the noneconlomic matters had not been resolved, there could be no "negotiations" on economic matters. E. The Board of Inquirl, Report At or about this time MSNA officials felt that the ne- gotiations werc at impasse and requested the appoint- ment of a board of inquiry (1301()) under Section 213 of the Act. On March 11, 1977, Respondent made a written presentation to the 1301() of its position N hich included its last proposals. MSNA also apparently relied on its last proposal made in early March. Hearings were held for 2 or 3 days before the 1()1 in mid-March. During the pendency of the 1301 proceedings, apparently on March 12, Respondent made a new economic proposal. After the preseintation of evidence and the positions of the parties, the O()I, or) March 21, 1977. issued a report recommending acceptance by the parties of various com- peting provisions. The 1301 report also indicated that the Board had been successful in aiding the parties to arrive at agreements on numerous issues and to the withdrawal of twelve sections from the MSNA proposal. The Board considered over (X) noneconomic issues as well as the economic issues presented by the parties. It recommenld- ed adoption of Respondent's position on most of the issues. For example, it recomnmended that the recognition clause not specifically include "professional practice" as a bargainable issue, noting that this matter could be ef- fectively resolved by a properly written grievance proce- dure; and it recommended that MSNA's agency shop clause not be included in the contract. The Board also recommended that the Respondent's management rights clause not be included, but that MSNA's alternative be adopted. In view of this. the Board also recommended adoption of the Respondent's finality or "zipper" clause. The Board also recommended a revocable dues authori- zation checkoff' procedure for MSNA. As to the economic issues, the Board recommended that Respondent's package be accepted. The package first submitted to the Board provided for a minimum starting wage of $4.40 per hour effective on the signing of the contract. This was basically the same economic cll-servling etimliony c hai t allcr the Ill'edJll(to; Ctllied lcgoliatlmilI hIe agreed wih ResponldCent' psilion and diclated Ihat 11orIIC olli c i lli llltr . should he resi v'cd firs, " Kuykeldall's Istilrlli lln II I11iIII I p lit 11 1 rl ciica spci t icy - cd Morrcll andl his , os, ciall. I, orlas JohltOlnl , ho wy re prc't'il it thec' sc.Siios. (Stiicd. JohIn i did i ll hi tc'IlfS ihotit the ',ihsillcc o t e arly ,March litclings nd( Moiirell did iit tes',ti hitii llny diScus.- ioln (il cclnon i Illalers cxcplt tI conrltirm Ihail tic rccm cdl a fturtlli ccolortlic propc)sal from MSNA Adillllraitor Johillsio l did lot tl) speciical ahoui Itesch r iiiC Igs package which Respondent had offered on January 26, 1977. However, during the course of the BOI hearing, Respondent submitted a new economic package which raised the scale fi)r the minimum wage to $4.51 per hour, an increase of about 6 percent over existing rates, and all other scales proportionately The new package also con- lained the sanie shift differentials and holidays as in the original proposal. It also pox ided for $8,(XX) term life in- surance beginning with the first year of the contract; paid health insurance premiums for employees but not for their dependents: provided for a I million dollar lia- bility insurance; and provided for a long term disability itsuranice. In its report, the B13()I also suggest that, since the nurses had not received the 1976 raise, they be given a one time payment to make up "any loss they may have suffered from the equity position of August 1975 [when] they last received a general wage increase and any across-the-board incrcases which they did not receive subsequent to that date which changed their equity posi- tion to their detrimeint." At this point, Respondent's wage proposal to MSNA amoullted to an increase of about 6 percent over the wage rates thei i effect for the nurses. O)n March 3, 1977, shortly before the 1301 hearing, Respondent an- nounced an increase in the wages of nonunit employees. The increase amounted to sonime 7 percent. The nurses had not received the April 1976 general increase granted to other employees and were operating under the general wage rates in effect mi August, 1975. Also at this time graduate nurses were hired at $4.67 per hour-a figure higher than the minimunm then in existence for members of the bargainling unlit aind less than both of Respondent's minimum proposals. As to the fringe benefits in the second economic pro- posal, other nonunit employees had received two in- creases in life insuralnce which the nurses had not re- ceived anld were alrcady entitled to $8,000( life insurance benefits: they were also already receiving the same long Ierml liability benefits offered to MSNA; and it was an- inounced that they would be receiving the same liability insurance offered to the MSNA on behalf of the nurses. The nonunlit cmployees were also apparently already re- cei,,ilg hospital-paid 3Blue-Cross Blue-Shield and major medical insurance coverage. F. lInal Bargaining Ssvion s In .lpril. :cay, and June, ]977 Several bargaining sessions were held after the B)Ol report. The parties met o April 5, 6, and 7, 1977. They waent over the 130()1 recommendations. These were full day sessions and at part of the first two sessions and the entire session of April 7 Morrell delegated his role as chief management spokesman to Attorney Thomas C. Johnston, an associate in Morrell's law firm. The Charg- ing Party stipulated that Johnston had full authority to negotiate and reach agreements At this point, Nancy Chandler became the chief negotiator for MSNA. Kuy- kendall did not thereafter participate in the negotiations. At this point, MSNA dropped its "professional prac- tice" provision in the recognition clause. Nancy Chan- 2 6 I.ASTI RN MNAIN N11MI)ICAI (:IN I R dler also submitted a modified grievance procedure. 'Ihis apparently brought ahout tentative agrenlent oni tle grievancc-arbitration clause. There as also agreclenl on Responident's no-strike and no-lockout clause in ac- cordance with the 13() reconllmenldation. Chandler also suggested that if Respondent agreed ss ith MSNA's marl- agement rights clause, as the B()l had recommelnded. MSNA would agree to Responidenl's finality clause, Re- spondent rejected Chandler's suggestion. Also at this time wagcs were discussed and soime representatives of the facultv nurses and the anesthetist nurses attended tIh sessions and made some statenlents or proposals concerln- ing their wages. One of them said that the latestl econom- ic proposal of Respondent contained a lesser salary for- her than would have beeni the case had raises been grant- ed to the nurses in 1976 and 1977 as were granted to the other employees. During this 3-day period, the MNSNA agreed to about 50 items in the 1301 report, most of v,:hich were itenms concerninig which the report had recommlended Re- spondent's position. None of these itenls inv olved co- nomic matters, The parties did discuss the XO1 recoim- mendation that Respondent grant the nurses a one time wage increase to make up for wage increases that had not been granted since August 1975. MSNA pressed frr such an agreement but Rspondenti refused. According to Administrator Johnson, Morrell took the position thliat since Respondent had granted merit increases to the nurses their "equity position" had inot been impaired within the meaning of the 10OI report even though gen- eral increases had not been granted. The parties met again on April 2 ad 27 and again it May. On Ma 13 MSNA submitted a nes comprehen- sive proposal of both economic and noneconomic itenls and presented a list of open items. The latter included some sections of clauses xwhich had been substantially tentatively agreed upon, but it included the managemenl rights ad finality clauses, agency shop, and all economic items. This list was updated on May 18 with sonime re- vised clauses including a new finality clause proposal. According to Johnson, there was some discussion of eco- nomic matters on May 13. Nancy Chandler answered questions from the mediator and from Morrell conccern- ing the MSNA wage proposal and both parties advanced their positionls. The mediator participated in these discus- sions. There was an additional meetinig during the latter part of May or the first of June at which some additional tell- tative agreements were reached. The MSNA's last wage proposal dated May 13 had a minimum or base salary of 11.4(X) for begiinning nurses. MSNA's first proposal had been based on a minimuLm of 513,000. The incremental steps leading to a maxiunim salary in the last MSNA proposal was based on about 5- percent increases for each ear of service up to 6 years Respondent's first proposal amounited to a minimum of $9,276. 0, an increase of about 5 percent from the exist- ing wages not including any raises withheld from the nurses. The proposal submitted at the 1301 hearing in March amounted to a minimum of $9,380, or an increase of 6 percent. Respondent's last proposal had incremcental increases which appeared to be less than the MSNA fig- ures. I here ere of course differences in classifications alnd olthr matters whlich inake comparison o' th' tso proposals d(ifficult. ut it does not appear hal the parties entered ilto anyll serious or detailed discu ssion on these proposals after MaY 13. ()n Nla;i 31 1977. a decertification petition was filed. O() Junl 22 the parties llet for the last time. At this poitll Americanr Nurses Association Official D)a id Schniiabel entered the negotiations for MSNA. He was briefed on tile issues andll Respondent presented new but separale economic anid nonecolomic proposals The on- economic proposal ildicated tentative agreilcrnl on such mailttrs ;1t grievance-arhitration. no-strike ad o-lock- out. recogiitionl aid discharge and discipline. The open noneconomic issues at this point included proposals con- ceriing mnanagement fnctions, dues deductlions. union security. and finality Respondent's economic proposal. which \'was conditioned upon "acceptance of Respond- cnt's nonecononlic proposal and acceptance of the eco- nomic proposal as a package, included hbasicall the same proisis as w a ere contained in the sec(n(d or March 12. 1977, economic proposal. There max haa\e been some minor differences in the two proposals but th) tcre not discussed on June 22. As in its other proposals. these benctits were to be effective upon accpltatie of the co- nomic proposals ias a package.' After a no(on recess, attorney Johnston replaced Mor- rell ias Respondent's chief negotiator. Schnabel ohbjected since he had not been notified that Morrell ould not he present at the afterno)n session. No further agreements were mnade at this session. At this point, a decertification petitioni htad been filed as ell ias certain blocking charges of uifair labor practices against certain blocking charges of unfair labor practices against Respondent. The Federal mediator, who was present at this meeting. suggested that MSNA withdraw the charges, permit the election to go forward arid to suspend negotiations until after the election. There is some ambiguity in the testimony of all wit- nesses-Kuykendall. Chandler, aron, Morrell. Johnston. I After the litltoe ero the hearing. Rsponilcnr nlis t sii tlhitiltle i docuninti ftr (i ( Exh 21 on Ihe ground Ihal it, and nol (i C Ihl 21. u j Rpildcill j t ecoilomiic propsal .ild th i it i xl 21 I d Ilt i)iiitill Rcpolniic ll', IistiIi. C prtp ).ls t] he ( t eral C( ulllst.1 inTd (Clargillg IPilrt~ o.pp...ll th mlrll (i C :\h 21 ., propri> atith tiu illd .lltd :Itllliic iinto i idei1c with no objeclitli h Rcsponldni RIc- plilltltlt nlov urge hait 1i did nol otut? lhe exhiitll II uffiClel detlil h't Itt Iglt'll lg Ill It' If11li1tInl l c'idcllc i .Ill .ltlti'LoH uhtlllll tCd ilth Ihc Ill(Olioll ili enl Ihollinas Jiohlll)lq s.itic that dljrillng the Jelc 22. 1977 bargainiig sw torn. (i Fx 21 .a hniltted %iSNA. ht Ihalt MSNA officials .crer toid I disrgaird the ltOCilR ll, tr illd i to sublstilt C e aiollher dit.c' nirll i (I Xh A te It li- i11til. tliih .itis t, 1h thle pertitl ece nofltrnic prot)o;l tlhu,, it ippcatrs ihllit thrre xCr t, C-(1.llini propotas;l submitted by Repondctlll I Juitl 22 in hi' tIt.iliIill. s J h,li tsO [t.ltaled tlllhai Iel opr.ltl JiiiiL. ' tqltaIIL<- rpo s tl l-td 1l1e' .illriilg trine Ofr hllh 1iFil to ir e l 11I'i Cll[p ;N te Ironl .I Illnlthls I mollntlrh nd Ihat the parile d ip C s Ii hilihtn ll-tir- l1ice Aictuall tite .orking pcriod rdulitiOn 1 its Jlrelu rcclcted In thli Siarel 12 proposal ht Johnsito11, triinI dtiP', t i l l lriticlc. 'aii, It1citlliiol ;it thl' iit1 illn tl s t IidtiI lht ti.ltr Ih5 Jule prop-s al Illilud d the sasie Ilril, Itie itncris .is i eS. Ill thle Nalrch prpaosl ill I " or, tll IIi lll\. t ".l] gralll RponlldenCts ntiler li 1 eiel t %sillJ rmake RCt'poliil'tils iI1(It111 tIgtlhltr .tili It1 .I cllrlictIIlt ;Ird1 Iti, or- pOritlOIll 11/' ht (iel.l'llJ ( mlt'l ;aid k'hIll i lPar> n\! Itxlhll AIJ I Olhll I 277 I)t ISIO()NS 1) NAI'I()NAI. IABlO()R RFlATIO()NS li()ARI) and Johnson- as to whether, after Januarv 26, 1977, when it made its economic proposal, Respondent contin- ued to adhere to its earlier position that it would not dis- cuss or negotiate economic matters until the resolution of noneconomic issues. Much of this testimony on both sides was given in coniclusioniary terms and i response to leading questions. I also perceived a semantic difficul- ty, on the part of all witnesses, in distinguishing almong the terms "discussion" of economics "'negotiation" of economnlics, or "agreement" on ecolnomlics, i connection with Responldent's position. t' Without resolving the con- flicts on this issue, particularly because of the semantic difficulties, I conclude that there was discussion of eco- nomic issues after January 26, 1977. These discussions, however, amounted to little more than each side explain- ing its proposals, giving reasons for its position, and an- swering questions and arguments ronm the other side. What is significant and gives suhbstl to the conflicting testimony is Respondent's position, c; brth in documeni- tary evidence. In Respondent's March 11, 1977, submis- sion to the BOI Morrell stated as follows: If the non-economic provisions of the Medical Cen- ter's proposal were accepted substantially in their present form, the Medical Center would be pre- pared to move into erious discussion.s of the eco- nomic package [emphasis supplied.] And the June 1977 economic proposal was explicitly conditioned upon acceptance of Respondent's nonecono- mic proposal and acceptance of its economic proposal as a package. 14 No such conditions attached to the MSNA proposals, economic and noneconomic. As Morrell ex- plained in his testimony Respondent's conditions never changed in substance and they meant at the very least that there could be no tentative agreements on individual economic issues. Indeed, there were none, unlike on non- economic issues where there were numerous tentative agreements reached, Respondent's economic proposals had to be accepted as a package. Thus, I find that Re- spondent's consistent position, after January 26, 1977, was in effect a refusal to seriously negotiate economic issues: There could be no agreement on economic issues-unless MSNA accepted Respondent's total eco- nomic package-until resolution of the noneconomic issues. Indeed, by June 1977, Respondent had made clear the resolution of economic issues meant acceptance by MSNA of Respondent's noneconomic package which in- cluded some tentatively agreed-upon matters but also some positions like management rights aid finality to 1al For example. Kuykendall's ulnconttratdicted tes llln ll) Is in early March Morrell refused to "nlegiltiate" n economic ma ters Johnsl ts- tified that in February Mrrell agreed that here llust hb agreemenl t 1 noneconomic items first. Chandler testified thai ill April anld MaN 1977 "all economics hinged upon our agreement with the ionecrle mic pack- age" and that Morrell stated th i econrllic n matters could t e "agreed to nlw" Ilaron testified tha RHesporndenl would riot "discuss" ecoomllc issues arid Morrell testified generally that he neser refused to discuss economics' 14 tihe phrasing of this c tdilioln was a hit differelt than in tihe Jailtl- ary aid March proposals which menitililed "agrrllt l t is t no- econonmic issus" rather than acceptance of ( ith Rspollldent's Inrlecono- mic proposal Morrell'% testinl yll) is that Ihe "sibsilallnc. lld illteit" if the language was the same which Respondent had adhered fromi the beginning of negotiations. It is also uncontraldicted that, throughout the negotia- tions Respondent maintained its position that all tentative agreelmelts it cntered into colncerning noneconomic mat- ters .s*cre conditioned upon acceptance of its manage- nment rights clause and its finalit' clause. Respondent never deviated from insistence upon these clauses and their content from the beginning of negotiations to the end. TIhese clauses were included i its noneconiomic proposal of June 22, 1977. G. he )Decerlificution Elcction and Suhbscquent Wage and Benefit Increases A decertification petition was filed on May 31, 1977, prior to the last bargaining session on June 22. After the Regional Director approved all election stipulation the election was held on July 28, 1977. MSNA lost the elec- tion hut filed objections and unfair labor practice charges which are the issues presented in the instant case. The day after the hearing in this case was recessed on January 26, 1978, Respondent increased the wages and benefits of bargaining unit employeess. ()n January 27, 1978, a memorandum from Brandow to all registered nurses stated as follows: The hearing concerning the status of the July 28, 1977 nurses election has been suspended until May 1, 1978. It will be many months before a final deci- sion is received. The Medical Center has decided to make im- provements in the wage scales and benefits for nurses. First, we offered a 6% increase in the wage scales to the union at tihe bargaining table on March 12, 1977 and again on June 22, 1977. This increase will now be made effective as of January 29, 1978. Secold, to reflect the increased burden of costs since last spring the wage scales for the nurses in the bargaining unit will be increased an additionial 6% as of January 29, 1978. Third, we will implement the following benefits (which were offered to the union June 22, 1977) ef- fective January 29, 1978 or as soon thereafter as these arrangements can be made with the necessary insurance carriers: 1. Hospital paid liability insurance ($1,0(00,000). 2. Increased life insurance and accidental death and dismemberment (S8,0(X). 3. Long term disability insurance for full time personnel. 4. Shortened waiting period for health insurance. 5. oliday time considered time worked for pur- poses of computing overtime. 6. Hospital paid Blue Shield premiums for full time employees. ' ()O February 16, 1978, another memorandum from Brandow aountced general age increases for all em- I' he h t ah ec hellcit s erl all inclufed in Respindent's alch 12, 1'977, citrllOTIi c proposal 238 FAS'1ERN MAINI NIlt'l)l(AI (CINI R ployees, including nurses. effecti,e March 26. he wagL increases, based o a sutirvc conlducted in )eember 1977 ad annouinced to etnployces at that timni. Acre inl- plemented. The iiirses received all increase of 5.6 per- cent and othe r clipltyces rteived a 6. 5-percenit in- crease. It is uncontcsted that Responidet did not notif., con- suit, or offer to hariain with NISNA before implernirlta- tioi of tlhe Jailiary and March w agc-and-benefit il- creases i I. I)S( t SSl(ON NI) SNAI SIS A. 'reliminur Lv tes I turn first to alleged violatiols whose uderlying flts \were lotl discussed i the fctual taltcrnlt set forth above. 1. Interrogation At the heariig, the General Counsel was permitted to amend the complaint to add an allegation that since on or about June 1977 Respondent, through its admitted agent, I ouise MNoreshead, interrogated prospecti,e em- ployees regarding their position on the Union. Fhe evi- dence shows that sometrime in the spring of' 1977, proh- ably in May, Cicrald I.aird and his wife, graduates of Re- spondent's nursing school, made applications to work for Respondent. They spoke with Louise Moreshead, the head of the nursing department, in her office. In the course of the interview, Moreshead asked them how they felt about the lUniotn. Laird told her he had not made up his mind about the matter. Moreshlead replied that she agreed with some of the things that the nurses were trying to do but niot the way they were doing them. Apparently, the nurses were picketing at the time. Laird was hired at $4.67 per hour plus a shift differenl- tial.l As shown by the uncontradicted evidence, in the spring of 1977, Nursing Director Louise Moreshead in- terrogated nurse applicants Gerald Laird and his wife about their positions concerning the Union. Such interro- gation was not accompanied by assurances against repris- al, had no lawful purpose, and took place in an atmos- phere conducive to coercion. The Lairds were asking for employment and talking with a high official of Respond- ent in her office. The interrogation is thus violative of Section 8(a)( I ) of the Act is Errors in the transcript have been nted and corrected except hose which do not comporit vith my recollectionll or the obh itous immpori rf the testimony in contrext and migtll i ollLe more than the rutlrIe COitrricL11i of typographical errors l7 This is based on the unconlradicted lestimony of I aIrd. A the bear- ing Respondenl objected t the amendmenl of he comnplaint to add this issue on h gtlnd that the ailrendnlcnI Invrl ed nmtierscr hich scre nol related to the charges filcd in tis ca;,c t ove lrulcd lhe oblttlrl and denied Respirndict mlitllt t dismis ,, ii the anL' griound stating would hear eidence on the matier I ahere ti n rltingl thatl hi amendment as sufficierIlI relatlld i the issue, presenled hereil to bc Iitigaled in this priceding 2 Solicilallol o(f a emplosee to circulate decertificatiol petition lie (ietilral Counsel' s coilplaint also alleges that Re- spolldcl xiolalted Sctioll 1)(a 1) of the Act swhen Super- i sI lcIle litiLhotiI solicited cnilployees to decertifN the MSN in March 10i77. In support of this allcgatiolt the (icterl ouiisel ffcrC d lt1c tstillilyl (if i erlployc I'alm Mcllnnis that ensonl approached her and employee Jac- quclile \'afiades hile they were havinig a col\ersatlinll in the hospital cafeteria ad brought up the subhject of ne- goltiatiotns. Bentson stated that niegotiaonlls wcre goinig slowsly, that it would nlot bc long before a tecertification electillon could takC place, and that if Vafiades wailnted in- ftornrlation about starting such a petition Bensou , ould get the information for her. At the heariig Respondent moXed to dismiss this allegalionl on the ground that it ,,'as barred by Section ()(hb) of the Act because it wr;l not contained in the first charge filed on September 1977, but only in the ameinded charge filed on October 14, more than 6 months after the events. The General Counsel argued that the original charge , as broad enough to encompass the allegation. specifically i in catci-alll" language that -hy tile above and other acts. Respondent violated the Act. I reserx ed rulinig onl the motion and ordered fill litigation on the issue. I now rule that the aliegation is not barred by Section 10(b) since it was sufficiently related to the first charge to become part of the Gencral Counisel's complaint. See .IL.R.B. . Central Power & Lh Comnpany. 425 F.2d 1318, 1320-21 (5th Cir. 197()). Proceeding to the merits, I do not find a violation on this allegation because I do not credit Mclilis' testimo- ny. Vafiades, an anti-NMSNA employee, had participated in committee meetings to draA up contract proposals for MSNA. Thus, it is likely, as she testified, that she and not Benson brought up the slox progress of the negotia- tions. She also testified that Benson said nothing about decertification. Benson corroborated Vafiades. They were candid and straightforward witnesses and both withstood vigorous cross-examination Their demeanor impressed me that they were testifying truthfully. In ad- dition, it is uncontradicted that the day after she testified, McInnis telephoned Vafiades and apologized for having to "implicate" Vafiades by her testimony. Vafiades told McInnis that she was disturbed by Mclnnis' reported tes- timony because she and not Benson brought up the nego- tiations and Benson did not offer any decertification papers Mclnnis also testified that Benson was referred to by the term "Hi, Ben." Employee Vafiades testified that Benson was not referred to in that manner and I am con- vinced, after observing the demeanor of all the witnesses, that her testimony was truthful. Accordingly, I shall dis- miss the allegation that Respondent violated the Act by soliciting employees to circulate a decertification peti- tion. 3. No-solicitation and no-access rules and interference with solicitation The General Counsel also contends that Respondent maintailned and enforced a unlawfully broad no-solicita- tion rule, maintained and prom ulgated an unlawfully 24) broaid ino-access rule, and specitically intlcrefercd ilh pro-MSNA employees w\hen l tie alternpcd to distribhuc union iraltcrial and solicit cnmpiloyces it March 177. In the Respondenlt's employee handbook ;at page 21 the following rule is set forth: Can itla ng Canvassing or soliciting of amlny kind is prohibited witlhin the Medical Center among employees and patienits vvithout advance authorizationll fron the ex- ccutive director. illntances of tilns ilt11-re should hC referred to the executli\ director. O()n ()ctober 1, 175. aftcr the MSNA orgallzting camn- paign began, Rspondent issued memororanda updarliig or revising tile rule I( caivllassillg set f'orth ahove. 'IhC re- vised rule read as follows: No employee shall solicit for anlly purpose on prop- erty of the Easterni Maine Medical Center during working time, exclusive of break tinme i non-work areas.' Thre distribution of mallrials for any pur- pose is prohibited in work areas, even durillg non- working hours. Any person not an emplloye (of the E`astern Maine Medical Center is prohibited from enlterilig the premises to solicit or distribute at allny time unless with permission. Instances of this nature shall be referred to the office of the Executive Di- rector. On or ahout March 10. 1977. employees Parn Mclnnis and Maggie Rose were soliciting other employees on Re- spondent's premises to sign MSNA membership cards and dues payroll deduction forms. Mcnnis and Rose were off duty'. They approached employees in the calafetc- ria between 9 and 10 a m. 'The cafeteria is on the second floor of the hospital and is used by employees and mem- bers of the public as well as ambulatory patients. Mclnnis and Ross left after soliciting for 1 hour and returned to tie hospital at or about 2:30 p.m. At this time they solicited nurses coming on duty and going off duty. The solicitation took place in a large waiting area or lobby on the second floor which is openi to the genler- al public. It is adjacent to conference rooms, the medical library, the cafeteria, and the surgery waiting room. 'I'lihe waiting area is used by people when there is an overflow in the surgery waiting room where families wait for news about relatives undergoing surgery. It is also used by people on breaks from the conference room and by nurses who congregate in this area prior to the beginning of their shifts. The timeclock for nurses is nearby and at one end of the area sits the desk of the chaplaii's seer, tary. The waiting area or lobby is not a patient care arci. 'The nearest patient care area is some 2(X) feet away sepa- rated by a corridor. The NLRB election i July 1977 was conducted in a room closer to the nearest patient care area than the waiting lobby. At approximately 4 p.m., Director of Personnel G;ary Conover approached MclIlis and Rose and asked them ' I liillher mcnmora;ldunl irld ill i1 Si bscqtlctlll s tcckl s hullclilr tie phrasc "llln-ork aire;" ,asl chaniged to "hreak arca, " Ih e wCekly hiJll cli c*xcpted Ihl tlnitd Fuind frormll tlls rult toI leave the premises. hey were speaking to o nurses w(ho had ljust gone off duty Cono ,er mentionied that there was it o-solicitation policy at te hospital and asked them to leave the hospital. Mchlitis and Rose then left te premises Thce applicable 13ard principles are as follows: An em- ployer's prohihition against employee solicitation on work ti1le and against eniployee distribution in work areas at all time,, is presumptively lawful. Conversely, prohibitions againist lnonr orktirnc solicitation or distribu- tilii, ol loll Oriorktili ad i olrvork areas arc utrllavful uniless justiied by business reasoirl based on discipline or otllr lccgithilat c i acto rs. Rcpuhlic .lviation Corp. v .YL.R.B. 324 U.S. 793. 797 798 (1954); 'Stddardl-Q)uir M.lujilzclurig Co. 138 NI.Ri 615 (1962). With respect to hospitals, the Board rule is that. while a hospital may lawfully ban employee solicitalio ad distrihution, even during nonlworking time ill illlediate patient care areassuch ias the patienlts' roollis, operating rooms, alld placs whecre patieits recevce reatlmci it ball, ol that activity i other areas to which patienlts alilt visitors ha e access is invalid absenlt show ing by the hospital that such it ball is necessary to avoid a disruption of palienll care. St1. Johln s lopilal and School oj Nursing Inc. 222 NIl RB 115() (1976). See also Beth sraucl Iopltal v. .VL.R.B., 437 U.S. 483 (1978); N.L.R.B. v. National Jei/rs.h lompital & Recarch Center, 593 .2d 911 (10()th Cir. 1978). Applying these principles irst to the Conover incident ill March 1977, 1 find that Respondent's conduct in pro- hibitiiig tile SNA solicitationl and distribution arid ex- pelling employees Mclilis and Rose was violative of Seetion 8(a)(1) of the Act. Cono er prevented the em- ployees from egaging in protected activity in what as clearly a nolipatielt and onwork area " Members of the public, visitors, and off-dtuty crrployees had free access to aid congregatcd in the wvaiting lobby. Neither the so- liciting employees nor those they were soliciting were on worktinie. This as not an inlllediate patient-care area aind was not prinlarily ta work area. Conover did not rely on any precise rules either the handbook rule or the re- vised rule; he did not cite a no-access rule; and there is no evidence that one for off-duity employees was in exist- ence at the time. He simply explained generally that Re- spondent had a no-solicitation policy. lThere is no cvi- dence that Conover, who did not testify. meintioned a business reason for the prohibition or stated any concern about interference with patient care. Indeed. it is likely- since no eidence was offered that similar expulsions had occurred i the past for other solicitations- that Con- over's concern was thiat the solicitation oil this occasion was for the Union. Accordingly, I find that Respondent's conduct in preventing employee Mclnnis and Rose from engaginig in union solicitation and distribution in the waiting lobby in March 1977 arid expelling them from the premises was violative of Section 8(a)( ) of the Act. Respondent argues that it could properly prohibit em- ployee solicitation because amolng those who used this Rcspolldcl Ci(licl s th;t ihe rIploe es A crc pcrrnllttel to ,)]lcil 1 ile Cialclria. ilut Cioucr did inot ieiritIn tis .hlc he Cxpelled Rost .i1d t\1c1i1ils froim Ile pirciicm 1)1:(']S]()NS (* NA I IONAL I ABOR RELA- IONS BOARD FASTIFRN MAINE -MELDICA CN'NIIR lobby were tile faimilies and relatives of patients at times when there was an "overflow" from the surgery waiting room and that these people should not be subjected to solicitation. The argument is ithout merit. The waiting lobby was not exclusively a patient-care area thus, under the Board's St. John Ilospital decision, upra, Respond- ent's argument does not amount to a significant business justification to limit employee solicitation on behalf of the Union. Contrary to Respondent. the availability of al- ternative places for solicitation or means of communica- tion is not a significant factor in the consideration of em- ployee rather than non-employee solicitation rights. Compare .L.R.B. v. he Babcock & Wilcox Company, 351 U.S. 105 (1956). Respondent also alleges that Mcn- nis testified that she thought the waiting lobby w\as a pa- tient-care area. This testimony was elicited in respronse to leading questions from Respondent's counsel. Counsel's questions suggested that Conover relied on a lawful rule prohibiting solicitation in patient-care areas; the evidence shows, however. that he asserted a broad no-solicitation policy and did not mention a specific rule. McInnis testi- fied that she did not believe she was doing anything wrong and her response to counsel's questions simply demonstrates that Conover did not purport to rely spe- cifically on Respondent's revised no-solicitation rule. In any event, Mclnnis' belief that she was soliciting in a pa- tient care area or, more probably. her belief, in response to a leading question, that Conover construed it to be a patient-care area does not make it so. About a week after the Mclnnis and Rose solicitation, Respondent issued a weekly bulletin stating that employ- ees were not to be on the hospital premises within a half hour before starting time and no later than a half hour after quitting time. It is settled law that a rule which denies off-duty employees entry to outside nonworking areas is invalid unless justified by valid business consider- ations. Presbyterian Medical Center, 227 NLRB 904, 905 (1977). Any ambiguity is to be construed against the party which promulgates the rule. Continental Bus System, Inc., 229 NLRB 1262 (1977). Under this standard the instant rule is unlawful. It does not limit access of off-duty employees to interior working areas and there is no evidence that the rule was clearly disseminated to all employees. 20 In addition and apart from the above, in view of its timing, I find that the rule w-as promulgated to thwart off-duty union activity and not off-duty solici- tation generally. No other explanation for the rule ap- pears in the record. Accordingly, I find that the no- access rule testified to by McInnis was promulgated and maintained in violation of Section 8(a)( ) of the Act. Respondent's handbook no-solicitation rule is admit- tedly too broad insofar as it generally prohibits nonvwork- ing time solicitation. Respondent argues that the rule was effectively rescinded by the October 1975 revision. The General Counsel disputes this. A bulletin announcing the revision stated that the revised rule was being posted and would be included in the regular updating of the hand- book. The revised rule was also included in a updated interdepartmental manual which was available to em- z" Thc (onlI cvIdc cC onl this IS\1¢ I Ihc t lrlucontradicicd crtlnilrly of Mcinnls Rc',pondenl offered no husine.s Ijuification fand 1no cvid'lnct ai aII on thi[, , ILC ployees. Although the Conover inciderit creates some doubt as to whether Respondent itself knows the lawful parameters of its no-solicitlation policies and there is no specific evidence that the revised rule was actually posted or the handbook revised, I accept Respondent's representation that the broad rule is repealed and pres- ently inoperative. The 1975 revision- which is presently in effect-pro- hihits employee solicitation "during work time, exclusive of break time in non-work areas." The rule does not ex- press a concern for patient-care areas. The first part of the rule is lawful but the exception renders the rule un- lawful because it suggests to employees that the only permissible solicitation is that which takes place on break time in nonwork areas. This is too broad a restriction since it prohibits lawful nonxvork time solicitation in work areas which are not immediate patient-care areas. Indeed. in two subsequent announcements of the revised rule. the term "break areas" was used instead of "work areas," further limiting the area for lawful nonwork time solicitation. Moreover, the exception prohibits solicita- ltion at times other than breaktime such as lunch or rea- sonable periods before and after work in permissible areas. See Republic viation, supra, 324 U.S. at 803, fil. 10. Finally, though Conover did not purport to rely on the revised rule in expelling employees Rose and Mclin- nis, this incident raises doubts as to whether the revised rule actually protects lavwful union solicitation. Thus, at the very least, the exception renders the revised rule am- biguous and an ambiguity is to be construed against the author of the rule. In short, the no-solicitation rule is broader than permissible under Board law and at the very least is ambiguous in that it provides no clear indi- cation that it conforms to the Board's criteria. The rule is thus violative of Section 8(a)(l) of the Act. See N.L.R.B. v. Florida Medical Centr, Inc,.. 576 F.2d 666 (5th Cir. 1978). B. The Withheld General Wage Increase of April 1977 As shown by the evidence. Respondent granted gener- al wage increases to all its employees except unit em- ployees in April 1976 and again in April 1977. The Gen- eral Counsel alleges that the withholding of the April 1977 wage increase, which was granted in the midst of negotiations, from unit employees was violative of Sec- tion 8(a)(3) and ( 1) of the Act. I agree. It is conceded that the April 1977 wage increase was not applied to the unit employees because of the fact that Respondent was in negotiations with MSNA over their wages. Director Brandow testified that the survey pre- ceding the April 1977 raise included the nurses and that, but for the representation of the nurses by MSNA in ne- gotiations, he would have granted them increases. This evidence establishes that Respondent's conduct in with- holding wage increases from the unit employees in the midst of bargaining, both in its forsecable consequences and, in fact, discouraged union activity and support within the meaning of Section 8(a)(3) and (1) of the Act. The situation herein is comparable to that presented in N. L.R.B. v. United Aircrafti Corporation. Hamilton Stand- ard Division (Bran Filament Plant), 490 F.2d 1105 (2d 241 I) ECISI()NS O() NA FIONAL L.AHOR RATIONS H()ARI) Cir. 1973), enfg. 199 NLRB 658 (1972). In that case, the employer had announced he would grant a wage in- crease on a specified date. The Court upheld the Board's finding that such a promise constituted a condition of employment and that the refusal of the employer to put the "scheduled wage increase" into effect because, 4 days before, the employees had selected a union was "in- herently destructive of important employee rights and violative of Section 8(a)(l) and (3) without specific proof of anti-union motivation," citing N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). The Court went on to reject the employer's defense that it was entitled to with- hold the wage increase in order to improve its bargain- ing position in the anticipated negotiations with the union as not a "legitimate" business justification under Great Dane, supra. As the Court stated, "[if] the Compa- ny's position were accepted, an employer would appear to be entitled, in the hope of improving his bargaining position, to alter all conditions of employment after union certification, reducing wages to the legal minimum and allowing the work environment to deteriorate." That, the Court stated, would have a "devasting impact" on Section 7 rights. United Aircraft, supra at 1110. Respondent's conduct here was much more injurious to Section 7 rights than that portrayed in the United A.iir- craft case and approaches the "devasting impact" charac- terized by the Court's hypothetical. First of all, the general wage increases of April 1976 and 1977 were as much conditions of employment for the nurses as the promise of a wage increase in United Aircraft. The evidence shows that in the preceding De- cembers-as was its custom-Respondent conducted a wage survey which led ultimately to wage increases for all of its employees. This practice-a survey followed by increases-was regular and periodic. It had taken place at least annually over the past 8 years. Moreover, the survey and the prospect of wage increases were an- nounced to employees in December 1976. The eventual decision was also announced to employees in March 1977 together with the actual amount of the increase. The December 1976 survey announcement stated that the survey was the "first step in determining the amount of our next general wage increase." There was no doubt in the announcement that there would be an increase as there had been every other time a similar survey was an- nounced or conducted. Director randow testified that without the presence of the Union he would have grant- ed increases to the unit employees both in April 1976 and in April 1977. Indeed, in January 1978, after MSNA had been decertified, Respondent granted wage increases of about 12 percent which, in effect, compensated the nurses for their withheld wage increases of 1976 and 1977.21 In these circumstances, the practice was suffi- ciently established so as to constitute a condition of em- ployment. That the specific amount of the increase was 21 Respondent also granted he nlurses a gencrldl age increase in March 1978 According to he testimonry of Johnlson the March 197X in- crease provided a 5 6-percent raise for the nurses (above their 12-percent raise) and 6h5 percent for the rest of he employees. Sillce this raise was based on the December 1977 survey it is ohsious that. despile Respond- ent's self-serviing explanations for the Januar increases, the tlallcr were tl compensatl for the failure Ilo grant the 197h and 1977 incrcases not fixed is not significant. Otis Hlospital, 222 NLRBI 4()2, 404, enfd. 545 F.2d 251. 255 (Ist Cir. 1976). See also Allied Products Corporation Richard Brothers Division, 218 NLRB 1246, 1252 (1975), enforcement granted in part 548 F.2d 644 (6th Cir. 1977) (regular merit wage review and/or increase program constitutes term and condition of employment); The Leavenworth Times a Division of Ihomson NVew.spaper. Inc., 234 NLRB 649 (1978); Plasti- crafts. Inc., 234 NLRB 762 (1978). In the words of the First Circuit, the survey announcement of December 1976 was an "unequivocal undertaking [which] amounted to a promise" that became part of the "existing" terms and conditions of employment. Ibid. See also .L.R.B. v. Uinited .4ircraft, supra, 490 F.2d at 1109, and cases cited. Respondent's reliance on Chevron Oil Company. Stand- ard Oil Company of Texas Division v. N.L.R.B., 442 F.2d 1067 (5th Cir. 1971), declining to enforce 182 NLRB 445, is misplaced. In that case the employer's normal policy had been to offer wage increases just negotiated in its industrywide contract as proposals to organized plants not covered by that contract and to grant such in- creases to nonrepresented employees. It had conditioned such a wage proposal to a newly organized unit upon ac- ceptance of a broad management rights clause. The Board found that the withholding of the wage increases was unlawful in the circumstances of that case and that the employer had bargained in bad faith. The Fifth Cir- cuit disagreed and determined that the findings of bad- Faith bargaining and unlawful motive were not supported by substantial evidence. Both the Board and the Second Circuit in United Aircrafi distinguished Chevron from that case, and, since the facts herein are closer to United .4ir- craft than to Chevron, those distinctions apply here. In this case, unlike in Chevron, the employer altered a con- dition of employment. Significantly, in Chevron, unlike here, the employer offered in its initial bargaining pro- posal to the local unit, the same increase it had withheld. In the instant case the wage increase was, according to past practice, an existing condition of employment, but Respondent never specifically proposed the withheld wage increases as a bargaining proposal. Its first contract proposal had no wage proposal at all; its first economic proposal-made sonicme 3 months after bargaining com- menced-called for a 5-percent increase and its last pro- posal-at a time when the nurses reasonably could have expected an accumulated 12-percent increase-called only for a 6-percent increase. Moreover, Respondent never sought to make up to the nurses the amount of in- crease they may have lost by the withheld general wage increases even though the B01 recommend such a provi- sion in March 1977. Indeed, Respondent took the posi- tion that the BOI recommendation did not apply to the withheld general increases and rejected outright an MSNA proposal in May 1977 that it grant two 5-percent increases to make up for the withheld 1976 and 1977 in- creases. In short, Respondent's conduct precluded the employees from ever recouping, through bargaining by the Union, the losses which Respondent had imposed on them for selecting it. However, even if, under Chevron, there is a require- ment that an inquiry be made into actual motive for the 242 EASTERN MAINE MEDICAL CEN ER withholding of wage increases during negotiations, I find that Respondent's motive here was to discourage uion activities. 22 First of all, Respondent withheld the April 1976 wage increase which Brandow conceded he would have granted to the nurses except that Respondent was in a situation immediately after the election "where we didn't know if we had a certification of election, or we were in the pre-election period, or we were going into negotiations." Inherent in this explanation was the idea that it was the presence of the Union which made neces- sary the exclusion of the nurses from the wage increase. See Electri-FIex Company v. N.L.R.B., 570 F.2d 1327, 1335 (7th Cir. 1978). The announcement of Respondent's action came I day after the election which was won by MSNA. Respondent filed objections and the certification did not issue until May 1976. Respondent never specifi- cally offered this withheld increase to MSNA in bargain- ing. Indeed, Respondent made no wage offer to MSNA on behalf of the nurses until late January 1977 when it offered a 5-percent increase upon the signing of a con- tract. There was no evidence that this was the equivalent of the withheld increase and it was never represented as such in negotiations. Any argument that Respondent found itself in a dilemma over whether to grant the in- crease or not because of the presence of the Union is specious. The general rule is that an employer must pro- ceed in these situations "as he would have done had the union not been on the scene" (The Gates Rubber Compa- ny, 182 NLRB 95 (1970)) and he violates the Act if he does not. Plasticrafts, Inc., 234 NLRB 762 (1978); Thur- ston Motor Lines Inc., 237 NLRB 498 (1978). This applies as well to the period during which objections to an elec- tion are pending. Marine World USA, 236 NLRB 89 (1978). Moreover, in December 1976 the MSNA notified Respondent that it had just learned of the wage increase and made quite clear that it would not file unfair labor practices if Respondent granted the increase to the nurses. Thus, it is clear that the April 1976 wage increase was discriminatorily withheld to discourage union activi- ty and, although the legality of the 1976 increase is not before me because it was not specifically alleged and such a finding is barred by Section 10(b) of the Act, the evidence of unlawful motive surrounding the withhold- ing of the increase is highly probative to shed light on Respondent's motive in withholding the 1977 increase and its cast of mind in subsequent negotiations with MSNA. Further. Respondent, throughout the period, demon- strated an anti-union hostility as shown by Moreshead's coercive interrogation of nurse applicants; Conover's un- lawful interference with MSNA solicitations in March of 2' In (herrn,,. he Hloard ite Sh ell (',, 77 Nt.RH 1306 (1948), for the proposilloi that, ahbsent proof of unrlaI ful niive, an employer may withhold v.lage Increases tl untl emnlphoyree pro,ided it hargains in good faith This pilciple as apparently fashioned prior to and withoul con sideralion of he hroiadenred lontirln of "inherently destructlse" conduct which presumes unlav ful nlotlC under Suprtme Court cases culnallllilllg In the (;inru/ )ia, dclslimn 1o he cxteren thia ('hlmro and Sh,'ll Oil can he read to deal ,ith altered conlditlins of employment they d nriot lake into account he (;reat Dull, decisionl and appeal Ito he i conlict i:lth 'nited Aircra.ft I his apparnlt conflict is insignificant in this case hecauset I find Respondent's conducl both Iiherrentl destrucli:e Ilunder Ilited ittr ral/ and unai s full) nil .iitd undte r ( i, mri 1977; and its unlawfully broad no-solicitation and no- access rules. The plethora of announcements of new benefits throughout the period of negotiations makes quite clear that Respondent undertook a campaign to highlight new benefits for nonrepresented employees and to emphasize that the benefits were being withheld from unit employees. Combined with its bargaining positions, discussed more fully infa, and its failure to even make a wage offer until January 1977 the withholding of the April 1977 wage increase made clear to employees that their selection of the Union resulted in loss of benefits they would otherwise have received. Indeed, by the end of negotiations in June 1977 two wage increases had been withheld from the nurses because they had selected the Union and Respondent had only offered an increase of about 6 percent to the MSNA-a figure well under what the nurses would have received had they not se- lected the Union. They had not received a general wage increase since August 1975 shortly after MSNA started organizing the nurses. Only after bargaining had broken down and the MSNA was decertified did Respondent grant increases to the nurses. Respondent's alleged concern that granting wage increases would affect employee rights apparently dissipated at this point even though objections were pending to the decertification election at the time. Thus, the motive for Respondent's conduct is not only estab- lished by Brandow's explanation for withholding the April 1977 wage increases (see Electri-Flex v. AL.R.B.. supra, 570 F.2d at 1335), but is reinforced by Respond- ent's overall conduct toward the MSNA-represented em- ployees. In these circumstances, I find and conclude that Re- spondent's actual motive in withholding the April 1977 wage increases from MSNA-represented employees was to dissipate union support and discourage union activity in violation of Section 8(a)(3) and () of the Act. See KDEN Broadcasting Company, a wholly owned subsidiary of North American Broadcasting Comnpany, Inc., 225 NLRB 25, 26 (1976).2: C. The Failure To Bargain in Good Faith The General Counsel also presents the issue of wheth- er Respondent violated the Act by failing to bargain in good faith. I agree with the General Counsel that Re- spoident's conduct constitutes a violation of Section 8(a)(5) and (1) of the Act. The applicable principles were cogently stated by Ad- ministrative I.aw Judge Itkin in The Adrian Daily Tele'- gram a Division of Tompson Newspapers, Inc.. 214 NLRB 1103, 1110-11 (1974): Section 8(a)(5) of the Natienal Labor Relations Act makes it an unfair labor practice for an employ- er "to refuse to bargain collectively with the repre- sentatives of his employees...." Section 8(d) pro- vides that "to bargain collectively is the perform- ance of the mutual obligation of the employer and the representative of the employees to meet at rea- ' I IS. of cotullrse. irlsignificalnl that Brandou' s condtid l t a, baseld o1n d\ ice of couInse I See Ot Ilpial 222 N RB 4()2. 403 405 1976) 243 I)ECISIONS ()F NAI()ONAL l.ABOR RLATIONS 1OARD sonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment...." In ANL.R.B. v. Insurance Agent.s' Union, 361 U.S. 477, 485 (1960), the Supreme Court recognized that "[c]ollective bargaining . . . is not simply an occasion for purely formal meetings be- tween management and labor, while each maintains an attitude of 'take it or leave it'; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract"; though "the parties need not contract on any specific terms . . . they are bound to deal with each other in a serious at- tempt to resolve differences and reach a common ground." And see, Cox, The Duty To Bargain In Good Faith, 71 Harv. L. Rev. 1401, 1411 (1958). Similarly, in :V.L.R.B. v. Katz, 369 U.S. 736, 747 (1962), the Supreme Court held that the parties must refrain not only from behavior "which reflects a cast of mind against reaching agreement," but from behavior "which is in effect a refusal to nego- tiate, or which directly obstructs or inhibits the actual process of discussion." In sum, as the court of appeals stated in N.L.R.B. v. General Electric Company, 418 F.2d 736, 762 (2d Cir. 1969), cert. denied 397 U.S. 965, enfg. 150 NLRB 192 (1964): [T]he statute clearly contemplates that to the end of encouraging productive bargaining, the parties must make "a serious attempt to resolve differ- ences and reach a common ground," N.L.R.B. v. Insurance Agents' Int'l Union, 361 U.S. 477, 486, 487, 488 (1960), an effort inconsistent with a "predetermined resolve not to budge from an ini- tial position." N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 154-155 (1956) (Frankfurter, J., concur- ring). A pattern of conduct by which one party makes it virtually impossible for him to respond to the other-knowing that he is doing so deliberately- should be condemned by the same rationale that prohibits "going through the motions" with a predetermined resolve not to budge from an ini- tial decision." See A.L.R.B. v. Truitt Manufactur- ing. Co., supra (concurring opinion). The parties to collective bargaining are "required to do something more than attend purely formal meetings constituting no more than a mere pretense at negotia- tion." N. L.R.B. v. Pine Nursing Home, Inc., 578 F.2d 525 (5th Cir 1978). "The mere willingness of one party in the negotiations to enter into a contract of his own composi- tion . . . does not satisfy the good-faith bargaining re- quirement." Wal-Lite Division of the United States Gypsum Co., 200 NLRB 1098, 1101 (1972). Moreover, while there is no requirement that any party agree to specific contract proposals, the Board may consider the "reasonableness of positions taken by an employer in the course of bargaining in negotiations." NV.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 134 (Ist Cir. 1953), cert. denied 346 U.S. 887 (1954). Thus, the Board must determine whether a party showed a willing- ness to "approach the bargaining table with an open mind and a purpose to reach an agreement consistent with the respective rights of the parties." L. L. Majure Transport Company v. NA.L.R.B., 198 F.2d 735, 739 (5th Cir. 1952). Ultimately, according to the First Circuit, the question whether a party "conducted its bargaining ne- gotiations in good faith involves a finding of motive or state of mind which can only be inferred from circum- stantial evidence." V.L.R.B. v. Reed & Prince, supra, 205 F.2d at 139-140. And see Chevron Oil Company, supra, 182 NLRB at 445. Applying these principles to the instant case, I find that at all times material, more specifically, after March 1, 1977,24 Respondent failed to bargain in good faith and instead bargained with a determination not to reach an agreement and to undermine and destroy the Union as bargaining representative. The discussion in part B, supra, clearly supports the in- ference that Respondent's conduct in withholding the April 1977 wage increases not only violated Section 8(a)(3) and (1) of the Act but also Section 8(a)(5) and (1), for it was evidence not only of Respondent's intent to discourage union support but also of its cast of mind against reaching agreement with MSNA and to destroy it as the bargaining representative of the nurses. See Chevron Oil Company, supra. The discriminatory withholding of the April 1977 wage increases was central to Respondent's strategy to frustrate reaching agreement. Thus, Respondent withheld general wage increases from bargaining unit employees from August 1975 until early 1978, throughout the period of the MSNA campaign and the succeeding nego- tiations. Respondent delayed making any economic offer until late January, 1976:10 months after MSNAs election victory; 5 months after receiving the Union's first eco- nomic proposal; and 3 months after bargaining com- menced and only after a Federal mediator entered the negotiations. During this period, Respondent refused even to discuss economic issues until there was resolu- tion of noneconomic matters. Even when Respondent made an economic proposal on wages, it was less than the unit employees would have received had they not selected the Union. The Union's final wage proposal in June 1977-a 6-percent general increase from August 1975 wage scales-was half as great a general wage increase as the employees would have received had they not selected the Union. Wage increases for 1976 and 1977 would have brought about a general wage increase of about 12 percent. This is based on what the nurses received in January 1978 and what nonunit employees received in 1976 and 1977, even considering that the nurses might have received less of a "4 The first charge in the Instant case was filed on September 1. 1977 MN findings relate to events and bargaining positions taken after March i. 1977. but I have considered events and bargaining positions taken befotre that date to shed light on conduct occurring after that date See Local L.odgie 1424. International Aoctation of Marchin:t, AL.-(CIO0 and Inerzr nal -ul a .,socialion oj Muachnisr .4AlL-CIO ryan AManufacturing (Co. s I..R.B., 362 US. 411. 416 417 (190h) Crysl Springs Shirt Cor- poruation 229 NRIB 4, 7 (1977) The Leave.nworth ime., supra, 234 NlRBl 6h49 244 tISI RN MAINI! 'VI)IiCAI (IN I R percentage increase thanl the nonunl1it enlploees. More- over, Respondent never gave MSNA tile opportunitli to recoup the discriminaltoril? wit hheld .~ age increases in bargaining. MIorrell's response to MSNA's attempt to bargain over the 13()I recommlnlclldationl for retroactive paymients s ;as to quibble over the meanin g of the rcol- mendalionl and to argue that since the nurses had been given merit increases after August 1975 there had heen no loss of "quity"' wlithll the maning of the 10()1 rec- ommendation. The lnguage of the recommenldation, however. leaves no room for doubt thlat it referred to "across the hoard increases." In these circumstances, I find that Rcsponldcnt's hargaining position o wvages is evidence of its failure to hargain il good faith.25 In addition. Responden t withheld fringe benefit il- creases from unit emploces and prominetntly annouliced these increases as s well as the April 1977 wage increases in nmelloranda to all emploeecs with the pointed remind- er that the unit employees were excluded because theyic were bargaining ifor their benefits. 2; The April I. 1 77. memorandum recapped the recently enacted benefits anid labeled this action "part of our continuing planl to keep us equal to or better thatn community levels." The mes- sage was clear that employees could gain more from Re- spondent \wilhout a unioin than they could by bargaining through it union. Conversely. Respoident hamimered home the point that the nurses were being denied bene- fits because they had chosen to bargain through MSNA. This conduct reflects Respondent's hostility toward bar- gaining in good faith. Thus, Respondent discriminatorily withheld wage in- creases from unit employees and publicized the with- holding of benefits while at the same time offering a lower wage increase than the employees would have re- ceived had they not selected a union and refused to con- sider a retroactive payment of the withheld wage in- crease in bargaining. Moreover, as shown below, Re- spondent's -percent wage increase offer was conditioned upon the acceptanc e of the rest of Respondent's econom- ic proposals. In composite, these positions, taken by Re- spondent. narrowed the bargainable issues to such an extent that bargaining on economic matters was virtually nonexistent. '5 Respondent asserts thai, on Ma 13,. MSNA was arguing for "double rclroaciivits" inslcad of lthe "one tmne pnlclll eisiolmed hb the BOt recmltlcendaion Of course h then, Respondent had ilplc- mcnlted a cltld general illcrease which sals sithheld fronm lllt cnplo ces MSNA imply ask d; fr 5 prcint lir te wilihhelid 176 increalse and 5 percelt flr he ,*thheld 1977 increase-an amount less hani the 12-percent increase granted il Januar 19'78 2' Respondent's economic proposal on fringe hencefits 'was l lmt, lower than what the nlurses Iiould hase recei'ed had hey not chosen MSNA For Ceanlple, i D)ecemher 176 Respondent announced a Itt)- percent increase ill hfe insurance, effective Januar, . 11977. for all em- ployees ecept the nurses, from 54.(XX Ito 8.(XX) he nurses had not re- cered an earlier Itncrease from S2.(XX) to 4.XX) Respondent had inot even made an ecinrlomnic proposal to MSNA and the first proposal did n1t even brinig the ilurse up It tIhe insurance henetils they ws uld hase re- ceived hut I;fr hax in, selected Ihe Unioln The 1 ing term disabil it hbeltcti alnnounced i l'ehru lar 1I77 for nonlulil employees did nlt filld its ,ia 51 into an economic proposal to MSNA until the BO()I hearings i in ii March 177 And the S1 mlillion liahilt. ILnsurance henefit first appeaired In he same economic proposal even thoiugh il hd beerl firstl anllrlluiced for nonlnlii enplo!tce hback in March 1'7h Indeed, after March 1, 1977. Respontdent look the po- sitioni thlt it ould not seriously inegotiate oil economic issues ittil itinellenolomic issues were resolved t its satis- faction. In its submissiuon to the 13()01 i March 1977, Re- spndttiet stated that if its nonecoollnic proposals ,Acrc "accepted uhslantially ill their present orm." it " l he prepared to imo e into serious discussions of lie co- niliic pa;ckagc. The clear implication is that i the ah- seneI of sbstantial acceptance h NISNA of its none- coonic proposals Respondent \kould nl01 undertake "''se- rious discussionis of tie ecornomic package Indeed. Re- sponidetlt's June 177 ecotnomic proposal, made aifter decertification petititio had behen filed, as conlditioned upont acceptailce of its nolleconornic pr(posal of tat fldal an;d acceptane;l of the economic proposal ;i ;a pack- age. This was different roml earlier ;laugage thit eco- noiit ics proposals were condition ed upon agree ilent oil the nonleconomic issues. It represenited a hardenllig of Respondelt's position and meanit that MSNA had to accept a lo , er age increase ad the salme fringe be-ll- fits the unit employees would have rccic d oilthout a union and it had to accept this s a package along iti Respondent's nolneconomic proposal.2 Respondent's position clearly precluded bargalilig oni economic issues for the economic proposal had to be ac- cepted as a package; there was no room for tentative agreements on individual economic issues. his Aas little different than Respondent's position prior to January 2. 1977, that it would not even discuss t econonmic issues until the noneconomic issues were resol'ed. Respond- enlt's position as taken vithout the acquiescenice of the MSNA; and, even by its on witticsses' tstinlony, after November 4, 1976, there was no aquiescence. This posi- tion was clearl a indication of bad-faith bargaining and sheds light on its subsequent bargaining position after March 1, 1977. In view of Respondent's earlier position, it is obvious that Respondent refused to even consider reaching tentative agreements on economic matters until either resolution of the noneconomic issues or accept- ance of its noneconlomic proposal. Such an intransigent position is strong evidence of a cast of mind against reaching agreement See The Adrian Daily Teelegram. a Division of' lTorpson Newspapers. Inc. 214 NLRB 110)3 (1974). For [bjargaining does not take place in isolation and a proposal on one point serves as leverage for posi- tions in other areas." Korn Industries Inc. v .VL.R.B., 389 F.2d 117, 121 (4th Cir. 1967). By postponing eco- nomic bargaining to the end of negotiations, an employer "reduce[s] the flexibility of collective bargaining. [and] narrow[s] the range of possible compromises with the result of'... rigidly and unreasonably fragienlting the negotiations . . "'N.L.R.B. v, Patent Trader. In., 415 F.2d 190, 198 (2d Cir. 1969). Even on noneconomic issues, Respondent's position was inflexible. It rigidly insisted-from the beginning of negotiations to the end-upon a broad management 7 tc assumlng rul h M rr th the truth f Mirrells testinun that lie lsubstallt, and illl of ttt Junll 1977 colnditioin as Itl he anle ai thal iI eaarlier pro- posl]. RKepndcrt', ploill t1,s idence of had fatllh or it suggests that R poindtnl i all tines cllnditiolled its L'ecot n111u p riposal upon ac tcepal" .o , It, ncItilniC propasil 245 I)t(ISI()NS (I NAI I)NAI IAB()R R AIIONS O ARRI) rights clause and filnality clause as the price for any agreement reached. This position, when considered to- gether with Respondent's other bargaining positions, ex- hibited a desire to undermine the Union and to avoid any meaningful final agreement. It is uncontestcd that Re- spondent never changed its ma nagem cnt rights propo sal or its finality proposal, even though the B()I recom- mended the MSNA management rights proposal an d, at one point, MSNA offered to accept the finality clause if Respondent agreed to its management rights clause. It is also uncontested that, although there were tentative agreements o i specific noneconom ic issues, Respondent's fial agreement, even as to noneconomic maltters, was conditioncd uponl the MSNA's acceptance of the man- agemenlt rights clause and the finality cla llsce. The insistence upon the two contested clauses inl Re- spondenit's last noneconomic proposal i June 1977, even with tentatively agreed-upon nonecolomic provisions more severely restricted MSNA's bargaining rights than the management rights and finality clauses would by themselves or as a pair. The management rights clause herein was broad and extremely detailed, spelling out management control over almost all aspects of the em- ployment relationship and it permitted unilateral action on a detailed set of orking conditions. Even though ex- pressly limited by the specific obligations set forth in the proposed agreement rigid adherence to this clause as ap- plied to matters not covered in the agreement and il conjunction with other provisions in Respondent's pro- posals was evidence of Respondent's unwillingness to bargain in good faith. See Stuart Radiator Core ManuJac- turing Co.. Inc, 173 NLRB 125 (1968). In the finality clause Respondent sought the MSNA's waiver of bar- gaining rights during the term of the agreement over "any subject or matter not specifically referred to or covered in this Agreement." This, of course, precluded bargaining during the term of the contract not only over matters not specifically covered in the agreement but also matters which had never been discussed in negotia- tions. As to the latter a union is not thought to waive the right to bargain unless the matter is "fully discussed" and the union has "consciously yielded" its position. Proctor ManuJacturing Corporation, 131 NRB 1166, 1167 (1968). Such matters could not be effectively handled through the grievance-arbitration provision because grievances were limited to complaints involving interpretation of contract language and provisions. The arbitrator was prohibited from even considering a term or condition of employment "not expressly set forth within the provi- sions" of the contract. Furthermore, there was a prohibi- tion against the right to strike during the term of the ,~ Resplliden argles in its hrief that the MSNA nllaiageienlt rights proposal wals, in substlauce, little differclt thanl its ou l I sO 111a1 I ( nlt pass on the matter this simlply conlfirlms Respolltlcli's nitrailsigeince and cast oif mind against realhing agreement fI it refused to agree tol the MSNA clause even tenatively or in exchange fior the MSNA', agree- ment toI Respondent's finality clause Ilo tIhe extlct that Respondenll argues tIht because MSNA tentatively accepted sorie ldf its prlopiisals. II is ahbsoled of a bad-faith bargaiing charge. Responldetit is mistlakel A uniin does not "waive" refusal tol hbtrgain charges by signiig ip for Ihe best deal it can obhtain ad conitiliitig io make all effort to reach agree ment. General Electric Ctomponn Buttertr Products (porutor Department NL' R. B.. 400 F.2d 713, 727 (5th Cir 1968) cert deiedl 94 I S.1 904 (1969). contract. Ihus. i view of the broad matters committed to managerial discretion and excluded from bargaining MSNA and tie employees it represented would be better off without a contract because, without a contract, MSNA would at least have certain statutory rights to ad- vance consultation and bargaining before Respondent im- plemert ecd changes in w orking conditiotis as well as the right to grieve and to strike if lMSNA did niot agree to the changes. 'o this extent rigid adherence by Respond- ent to its management rights anrid finality clauses, inl the context of its entire bargaining coduct, forced the waiver f statutory rights and as evidence of bad faith bargainilg. See Chcevron Oil Co.. upra, 182 NLRB at 447 S Isabel Electric Srrwc s, Ic.. 225 A'NLR 1073. 1080( (1976) (Crystal Sprong Shir (Corporatlion. 229 NI.R 4 (1977); "/ " .S'.slel, . Inc. lobile lomec Divivion N4id-States Corporation 1 29 NIRB 527, 550 551 (1960).29 Other pieces of evidence involving incidents which took place early in bargaining, prior to the beginning of the 10(b) period, some ininocent, in end of themselves, but revealing in conposite when considered with other evidence herein, also shed light o Respondent's cast of mind against reaching agreement in the period after March 1, 1977. There is evidence that MSNA repre- sentatives several times asked for inisurance information but that Respondent while promising the data did not provide the information at least as of January 5, 1977. TIhere is no evidence that Respondent thereafter pro- tided the information. Providing such information is, of course, an essential bargaining requirement. See Sylvania Electric Product.s Inc., 154 NLRB 1756 (1965), enfd 358 F.2d 591. 592 (st Cir. 1966hh). Indeed, according to the December 1976 letter from Nancy Chandler MSNA was not even consulted or given the opportunity to bargain over the withholding of the April 1976 wage increase--a clear change in working conditions; this too was a es- sential bargaining requirement. See 4llied Products Corp.. supra, 218 NLRB at 1252 53. Malcomb Morrell, the chief management negotiator, refused to meet il back-to- back sessions with MSNA officials even though the chief union negotiator had to travel to Bangor from Kansas City. Morrell refused the MSNA requests to meet fre- quently because of his busy schedule and took the posi- tion that he would not meet for longer hours or have more meetings unless he determined that satisfactory progress was being made. Morrell also unilaterally can- -' IHe case prilimarily relied orn hy Respondent t t Justlly Its unctullpro- itlising positilno t)rl thiese tIwo clauses is distinguishable I1 Long Luke .umber Co.. s82 N R 435 (17(), the IBard ieed nlv the anage- menit rights clause and flutd, unlike here, that there as iti other vi- derice ofI' bad-faith bargaining and that ithe employer, i light of its 30- year hargairing histtory. as vAilling t agree, as II had in tie past. i a cilmprehensive c de gloverning cnipllyce sages and cnditions. Mre- ,iver, the union was free i grieve aid to strike uder the contract ver matters ver hilch thie emplyer slmught onl initial cointrol Indeed, that management rights proposal vs,)uld nrlot hace precluded future bargaininig because it was nt a broad is tlie chluse herein and it was rlolt elombined vith a finality clauise anld ther restrictive clauses See alsol San Isabel. supra Moreover, i the ilstalit :ase, there is mnuch oilther evidence of bad- faith bargaiinig including Respondent's discriminat. ry vithholding of geeral i age increases during legotitations and the cnditiilnal aspect of' its eIolnic prpi sal 246 EASTERN MAINE NMtI)ICAI. CNTER celled the December bargaining session on short notice with a curt comment, "due to unexpected circum- stances." As a result there were no meetings for some 6 weeks. Iater, after the intervention of the Federal miedi- ator and the 1301, Morrell utilized an associate in his la\w firm to act i his stead when he was unavailable aid there were, of course, more frequent meetings. et he did not utilize this approach in the early bargaining. In coll- junction with Respondelnt's delay in making an econoniic proposal, this colnduct shows that Morrell insisted oin a unilaterally determined bargaining procedure and exhibit- ed a lack of interest in meeting With MSNA in a deliber- ate effort to stretch out negotiations. Collective-bargain- ing negotiations are entitled the importance and attention of any other business affairs (Lawrence lcxtrile Shrinking Co.. Inc., 235 NLRB 1178 (1978). and Respondent's re- strictions during the period between October 1976 and January 1977 delayed the effective start of negotiations and undoubtedly infected the entire bargaining process. See "M" SYstem nv; ic., supra, 129 NLRB at 550, fn. 27. In view of all of the above, Respondent's conduct throughout negotiations, but particularly after March 1977, evidenced an intent not to bargain in good faith and indeed to undermine and destroy MSNA as bargain- ing representative of the nurses. This record demon- strates the classic case of an employer who is prepared "to sit [at a bargaining table] almost forever . .. to make concessions here and there . . . [as a] means by which to conceal a purposeful strategy to make bargaining futile or fail." N.L.RB. v. Herman Sau.suge Company. Inc.. 275 F.2d 229, 232 (5th Cir. 1960). Accordingly I find and conclude that Respondent violated Section 8(a)(5) aid (1) of the Act. D. The Representation Case and the Unilateral WUage and Benefit Increases As set forth above I have found that Respondent committed violations of the Act which continued to the time of the decertification election. Two of the objec- tions, objection I, involving the withheld wage increases, and Objection Ill, involving the broad no-solicitation rule were encompassed in the unfair labor practice find- ings. The withheld wage increase was first announced well before the filing date of the decertification petition, May 31, 1977, and thus would not constitute grounds for setting aside the election. See Ideal Electric and Manufac- turing Company, 134 NLRB 1275 (1961). However, the existence of the broad no-solicitation rule at the time of the election is sufficient to sustain Objection Ill. See Grundy Hospital, Inc., 210 NLRB 1, 2 (1974). Moreover, my findings concerning Respondent's failure to bargain in good faith, exemplified in part by bargaining positions taken on June 22, 1977-after the filing of the decertifi- cation petition, would also provide grounds for setting aside the election. Cf. .ltnerican Safety Equipment Corpo- ration, 234 NLRB 501 (1978). Accordingly, I find and conclude that Respondent's misconduct interfered with a free and fair election and that the election of July 28. 1977, should be set aside and the representation case should be dismissed. " ) I further find that, as of January and March 1978. MSNA still represented the nurses and, consequently Respondent's unilaterally imposed w\age and benefit in- creases at these times were unlawful. An employer's im- plementation of its last wage proposal in the absence of a legitimate impasse is violative of Section 8(a)(5) and (1) (of the Act. Yamo Woodcraft. Inc. dh/a Cal-Pacific ur- nilure MJi. Co.. 228 NI.RB 1337, fn 1 (1077). And "it is manifest that there can be no legally cognizable impasse, i.e. a deadlock in negotiations which justifies unilateral action, if a cause of the deadlock is the failure of one of the parties to bargain in good faith." Industrial Union C lMarinc and Shiphuilding Workers of .4merica. .4FL-CIO v N. L.R.B. 320 F.2d 615, 621 (3d Cir 1963). In views of my findings set forth above there %v as no impasse in this case and thus Respondent's conduct was violative of Section 8(a)(5) and (I) of the Act. Even though this matter was not specifically alleged in the complaint it was fully litigated and fell within the general scope of the refusal to bargain allegations of the complaint. See Erich R. iebher and Bernadine T7 Weher, Co-Partners d/ h/a Wehbers BakHery 211 NLRB 1, 14 (1974). CONCI.USIONS 01r LAW 1. By virtue of gaining representation rights in a Board conducted election on March 18. 1976, and being certi- fied by the Board on May 26. 1976, MSNA was, at all material times, and is at present, the exclusive bargaining representative for all employees in the appropriate unit below for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 2. The following constitutes a unit appropriate for col- lective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time general duty nurses (staff RN's) employed by the Employer at its Bangor, Maine Medical Center locations, including nurse anesthetists and all instructors and assistant in- structors at the School of Nursing; but excluding employee education instructors, supervisors, assist- ant supervisors, head nurses I and II, guards, all other supervisors as defined in the Act, and all other employees. 3. By discriminatorily withholding w\age increases from bargaining unit employees on and after April 3, 1977, Respondent violated Section 8(a)(3) and (1) of the Act. 4. By the conduct set forth above and by failing to bergain in good faith, since March 1, 1977, with MSNA, Respondent has violated Section 8(a)(5) and (1) of the Act. 5. By unilaterally granting wage and benefit increases to bargaining unit employees in January and March 1978 :" I do not reach he further isuc, presented bhO ()hjccciln II. If ,heher Respondenl als, Imlproperly inlerfered ith ice lccltiln bN pil. ng or t trilll riporaltii (If soni cmplosec, fronm their X acalillu back I llilogmr Malif, to oi l iIn the election 247 I)t'lISI()NS OF) NA'I()NAI IAB)R RA''lIONS B)ARI) without notifying and consulting with their bargaining representative Respondenit violated Section 8(a)(5) and (I) of the Act."l 6. y interrogating employee applicants, by intcrfcring with employee solicitation for union purposes on non- work time in nonlwork, nionpatient areas and by mainlain- ing overly broad no-solicitation and no-access rules, Re- spondent t has interfcred %with, coerced, and restrained em- ployes in the exercise of their Section 7 rights in viola- tion of Section 8(a)( ) of the Act. 7. I'he unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The decertification election in Case I-RD-888 is set aside and the petition in that case is dismissed. 9. The Respondent has not otherwise violated the Act. TIrlE RtMNt)iY Having fou)nd that Respondent has engaged in certain unfair labor practices I shall recommend that Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act, including the posting of appropriate notices and bargaining with MSNA in good faith. 2 Since Respondent has been found to have discrimina- torily withheld wage increases to which bargaining unit employees were entitled and would have rcccived but for Respondent's discrimination, I shall recommend that each of the affected employees be reimbursed for the in- creases they would have received from April 3, 1977, to the present by payment to them of the difference be- tween their actual wages and the wsages they would have received had the increases been granted to them in the manner testified to by Director randow and granted to the other unrepresented employees in order to return these employees to the status quo ante. The amount shall be computed on a quarterly bsis in the manner set forth in 41lied Products Corp., 218 NLRI3 1246 (1975), and ' W. Woolworth Comnpany, 90 NLRB 289 (1950), with in- terest thereon to be computed in the manner set forth in Florida Steel Corporation, 231 NLRI3 651 (1977)i' :" Nolhing in this l)ccisiun or ()rder shall hb c nstrued s rqirlnig Respondetill Io rescind iany such hetlfils Ia" Curiously, Respolldcn argues al leilglh againl inliptriion of il har- gallinig rilr by citilg anld discussing . RI v (;i / I'twkin/ Co.) Inc. 35 t S 575 (19751. alld is protgen I hest cascs are clcirl appi- ite fir Ii', bargainiing tbligatit iarise h5 irtie of a Board certifilatiOi ad rllilains itt ill eca e t Respo ildl Cl' s failutrte to ibitde h il siatI- itry dul1 baI hirgai Il good falith I hc bargaiillg order rmcedy is lot hased on arl assessllnt of lihelher a car-d Iliatoril) is a better illdicatlr or free cholice Iehai i anc 1,i thaird cllecion, but raltlher R ,pordcni's failurc to hbargali l and oilt r eulduct prilol li the dItcerTrlil-cain (cleclilrl licjl 1as sel aside becal'c;l of R espoidcplleIi niiscollli CL t Itled. i l usuai l lil such cases oii e' enid I l crt'ltifiica;ll ll year to IIlake up for ile ptrliod cll1- sumed hb an; elploetr's failure to hargain in geood faith Se Southil Itwlwr losppttul, I't) Nl RB 1077, 1088 (1t 977), ad .ar J, /'outr ( In, 136 NL.RB 785. 787 (lth2) tn [ii rgardl, tlite ( .harging Party alid li (nicrail ((rilsel rge tili l extend the ccrificatiiill sear I shall iit recollnCllid thi renietl. li . - er, silce Rspondent's refusal 1I1 bargain d1atid froitj March 1. 1977. h months before the irst unfair lhor pracltlc harge and Ihis flls aiilr t at te end of tile rigillal crtiilttiInl yCear C(iseqiuerlilh h hargaining obligalio iposed hrein sha.ill h a general ne t extend tit a reisti able perIol ill I hch it Call h giveii a fair chliance io sicecd /rUlAi lBro (C ompue, s 1. R., 321 i S 7)2. 75 19441 a Set gnerall. ili 'll utilitr & tlcaling (o., 13s NIRII 716 1 1962) As I have indicated, in January 1978. the bargaining unit employees receiv ed a wage increase of about 12 per- cciit over their August 1975 wage scale. While this might have tolled some backpay liability, I leave resolu- tion of this issue to the compliance phase of the case. Re- spondent's action simply confirms that but for the dis- rinmination which occurred in April 1977 the employees would have received wage increases which other unre- presented employees were receiving on April 3., 1977. See .illied Products Corp.. supra: Chevron Oil Co., supra, 182 NLRI3 at 450-451; and roavis Meat & Scabod Corn- pany., Inc., 237 NLRB 213, fn. 2 (1978). In view of the devasting impact of Respondent's delib- erate violations on employee rights, which led inevitably to the decertification of MSNA, and the creation of an atmosphere at the Medical Center, which becomes more permanent with the passage of time, that Respondent has successfully repulsed MSNA under the guise of having bargained fairly with it;: 4 and also in view of the evi- dence (pra, fi. 3) that a resolution to suspend new col- lective-bargaining activities throughout the State of Maine was caused in part by Respondent's apparent suc- cess-by its unlawful conduct-in ridding itself of MSNA as bargaining representative, I deem it absolutely necessary in order to recreate the vtacru quo ante to rec- ommend the following additional remedies in this case: 1. In order to fully dissipate the effects of Respond- ent's widespread and flagrant interference with employee rights and in view of Respondent's liberal use of its weekly bulletin to apprise employees of its discriminato- ry policies, I shall recommend that the notices herein be required to be mailed to the homes of all present em- pioyees and all those employed since March 1, 1977, whether i the bargaining unit or not." 5 In addition, the notices should be printed in the weekly bulletin once each month for as long as the notices remain posted. Fi- nally, I shall recommend that the notices in this case remain posted for a period of 12 months or until a bar- gaining agreement with the MSNA is concluded or a lawful impasse is reached, whichever event occurs first. In iew of the impact of Respondent's unlawful conduct on NISNA bargaining activities statewide, I shall also recommend that the notices be published at the Respond- ent's expense in a newspaper or newspapers of general circulation in the State of Maine weekly for a period of 1 month. 2. In order to assure that future bargaining in good faith is carried out ad in view of the record evidence herein concerninig early delays by Respondent in meeting with MSNA and bringing forth economic proposals, I will recommend the remedy suggested by Member Murphy, dissenting in Ihe Leavenrorth Times. 234 NLRIB 631, that: I For examlple. emploce I iilt vte, filed tile ccerification pelilllion Ittificdl Ihat lnlph 'ecs wcre LIpsi becaust Ih dccertifical loin cleciillo "ias lno upheld ilil threfire making iH iellligible for us It request he l ;"igt ill rcIrese" :' Ihcre Is tUlconltradicted ct idcelce thait Rcsplidenit feared tha if MSNNA tcre lit stoippc antllh r liilll. tIspitill w\ rkers lUnilnl I.ocal I L9', .i ldi ltl ImpI 1to oirgaili C olher hsiplital cnIplo )res, 248 EASTI'RN MAINE MtI)ICAL CtN I IR [A]t the Union's request, Respondent meet for a minimum of 15 hours per week until agreement is reached or a lawful impasse is reached ... Re- spondent consent to the presence of a represenltative from the Federal Mediation ad Conciliation Sers,- ice if the Union so requests; and . . . Respondent prepare wuritten bargaining progress reports everx 15 days and submit them to the Regional L)irector for Region [I] with true copies thereof to the Union. In addition, I ill recommend that Respondent he or- dered to begin hargaining within 15 days from the date of this Order. See lurowe Servo Conrrol, Inc... suprl, 367. I believe that these provisions are necessary to ensure a climate for good-faith bargaining in the future. 3. Respondent's bad-faith bargaining rendered MNSNA's participation i bargaining a nullity and cost the ulnionl time and money as shown in the September 1977 resolu- tion of MSNA inot to undertake nesw collective-hargain- ing activity. Accordingly, I shall recommend that Re- spondelnt be ordered to reimburse the MSNA for anl, and all expenses incurred in bargaining Uithi Respondent front March 1, 1977, uitil June 22, 1977, hen bargainl- ing ended, including reasonable expenses for salaries. travel costs, per diemin and other reasoniable collective- bargaining costs. See J. P Svens & Co.. Inc., 239 NI.RI 738 (1978X); and Menmbher Murphy's dissent in 7Th( I. Liiu(n- worth ie', upra, 234 NLRB 649 (1977): see also 1.F..1 Milling Compaunyl, 170 NIRI3 1079. 1080 (196X8). Fhe General Counsel also requests, as does the Charg- ing Party, that Respondent be ordered to reimburse the General Counsel and the Charging Party for expenses in- curred i the investigation. preparation, and presentation of this case. This is a novel remedy ordinarily reserved for those cases where a respondent's defenses are "frivo- lous" or not "debatable." Ilec'S,. Inc., 215 NLRB 765 (1974). Persuasive support for such a remedy is provided by Member Murphy in her dissent in 7ie Leavenworth Titnme, pra, and by Administrative ILaw Judge Ries in J. P. Steveon, supra, particularly in cases such as this where an employer has engaged in serious and deliberate bad-faith bargaining. Ho. ever the majority in The Leav- enwortlh irmt did not find the conduct therein "so egre- gious" or respondent's defenses "so frivolous" to require such a remedy. The instant case is a strong candidate for the imposi- tion of the litigation expenses remedy. Respondent's bad- faith conduct was egregious in any meaningful sense of the word. Its conduct was calculated and deliberate. Moreover, Respondent is a large employer w'hose deci- sions on the basic issues in this case were made by high management officials. Respondent was represented at all relevant times, including ill the negotiations, by counsel who also litigated this case. In addition, the operative facts herein were not seriously in dispute. There were testimotnial conflicts over whether there had been an agreement early in negotiations not to discuss economic issues. ut, even on this issue, the significant factor was consideration of the documentary evidence which showed that Respondent placed conditions upon its eco- nomic proposals which effectively precluded bargaining on them until noneconomic issues usere resolved. The violations herein involved events ad bargaining posi- tions taken after March 1i 1977, and they were based pri- marily on doclumentar. or essentially uncontradicted evi- dence and the testimony of Respondent's officials. ran- dous explained the discriminatory wage policy and docu- metlary evidence highlighted its impact on emplosecs. Respondent's negotiating g positions ere also well docu- imenited. rom these facts it might be argued that the legal implicaltions of Respondent's bargaining positionis and discriminatory ithholding of wages were so clear that Respondent's litigation of this case was simply a conitinuation of its bad-faith bargaining attitude aimed at defeating the Union. I am reluctant to make the above finding and from it order a litigation expeinses remedy because of my under- standing of the position of the oard's majority on this issue Its iew conltinues to be that such a rcmedy uitill not hbe imposed xein a "egregious"'' case of bad-fltlh bargaining unless a respondent's defenses are deemed "frivolous."'' While many of Respondent's defenses ere wide if' thie mark anid urpersuasive, I cannot ith confi- deuce label them frivolous. See King i'rrac \' .\urring Hlome nd lie /Hlel acilitrv 227 NLRH 251 (1976). I shall therefore declilne to order the reimbursement ft' litigation expentses. Ulpon the foregoing findings ad conclusioins and thle eintire record, anrid pursuant to Section 10(c) of the Act, I issue the follo,inrg recommended: ()ORDE)R :" The Respondent, Eastern Maine Medical Cenlter its officers. agents, successors. and assigns. shall: 1. Cease and desist front: (a) Promulgating, maintaining in effect, enforcing or applying any rule. regulation, or other prohibition against employees Iho solicit on behalf of any labor or- ganization during their nonworkilng time in any area of its hospital or on its outside preniises other thant immedi- ate patient care areas. (b) Promulgating, maintaining, enforcing, or applying ally rule. regulation, or other prohibition which prevents off-duty employees from soliciting on behalf of any labor organization in the outside nonworking areas of the hos- pital premises. (c} Interrogating employees with respect to their union activities or those of other employees. (d) Discouraging membership in Maine State Nurses Association (SNA), or any other labor organization, by withholding wage increases from employees represented by MSNA or any other labor organization or otherwise discriminating against employees ill any manner ill regard to their hire or tenure of employment or any term or condition of enployment. i n tecxcnit o *ctplion. are Iilc i pllx p t'dL h5 S. 112 4 ,) the Rild il it Rt.'g ~inlltln . I thc Natwlil I .ior Rt'l linl Ba rd til, fitin ll rCkoni rltlJl ()rtt. }lt, i ll hrC ll. a- i pro ikti i S- i() 48 lf 1lc Rulis ,ni,] Rcg ulllon. hi adiptedL h tit Hlril ildSn hiconic it ftlllligv. ,L'TIC/u i i . i1iI ()irdt,. illn il;II ohicclllls Ithlrct. ,.hll d ,,ted ' %d foI r purpoe', 24q I)ECISIONS ()F NA I IONAI. LABOR RELATIONS BO()ARI) (e) Refusing to bargain in good faith over wages. hours, and terms and conditions of employment with MSNA as the exclusive representative of its employees in the following appropriate unit: All full-time and regular part-time general duty nurses (staff RN's) employed by the Employer at its Bangor, Maine Medical Center locations. including nurse anesthetists and all instructors and assistant in- structors at the School of Nursing; but excluding employee education instructors, supervisors, assist- ant supervisors, head nurses I and II, guards, all other supervisors as defined in the Act, and all other employees. (f) Unilaterally implementing changes in wages, hours, or other terms and conditions of employment without first notifying and consulting with MSNA. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Make whole the employees in the unit found ap- propriate herein for any monetary loss they have suf- fered as a result of Respondent's failure to make applica- ble to such employees the increased wages and benefits generally granted by Respondent to its unrepresented employees on and after April 3, 1977, together with in- terest, in accordance with the remedy section of this de- cision. (b) Preserve and, upon 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, surveys, and all other records necessary to analyze the amount of reini- bursement due under the terms of this Order. (c) Rescind any rules restricting the areas and times in which employees may solicit on behalf of labor organiza- tions as they apply to times other than nonworking time and to areas other than immediate patient care areas; also rescind any no-access rule insofar as it applies to off-duty employees and prohibits them from soliciting on behalf of labor organizations in the outside nonworking areas of the hospital premises. (d) Upon request, bargain collectively and in good faith with MSNA as the exclusive bargaining representa- tive of the employees in the above-described unit within 15 days from the date of the Order. (e) Post at its hospital facilities in Bangor. Maine, copies of the attached notice marked "Appendix."'7 Copies of said notice on forms provided by the Regional Director for Region I shall be: (1) mailed to all employ- ees on the payroll as of March 1, 1977, and all present employees; (2) published in Respondent's weekly bulletin once every month for the period of I year or until a col- lective-bargaining agreement is signed with MSNA or a :" In the event hat this Order is enfirced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the Natlional abor Relations BHoard "shall read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board lawful impasse is reached, whichever occurs first; and (3) remain posted by Respondent for the period set forth above in conspicuous places, including all places where notices to employees are customarily posted with reasoin- able steps taken to insure that said notices are not al- tered. defaced, or covered by any other material; and (4) published at Respondent's expense in a newspaper or newspapers of general circulation in the State of Maine weekly for a period of I month. (f) Bargain with MSNA, at its request, for a minimum period of 15 hours per week until agreement is reached or a lawful impasse is reached; and, at the request of MSNA, in the presence of a representative from the Fed- eral Mediation and Conciliation Service; and prepare written bargaining progress reports every 15 days and submit them to the Regional L)irector for Region I with true copies thereof to MSNA. (g) Reimburse MSNA fr reasonable costs incurred by it in the collective-bargaining negotiations as set forth in the section entitled "The Remedy." (h) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. II Is I:tRIIIIR ORI)IiRI) that the complaint be dis- missed insofar as it alleges violations not found herein; anid that the election in Case I-RD 888 be set aside and the petition in that case be dismissed. SUPPLEMENTAL DECISION S \ ILM}N I OF I HI CASf. ROIIRi A. CIANNSl, Administrative Law Judge: In my original decision in this matter, some 16 months ago, I considered and rejected the contention of Respondent (also called EMMC) that the Maine State Nurse's Asso- ciation (herein MSN was incompetent to represent Re- spondent's employees because of the presence of third party supervisors. As indicated in my original decision, Respondent had not shown participation by its own su- pervisors in the affairs of MSNA and the bargaining be- tween Respondent and MSNA took place through subdi- visions of MSNA which did not include third party su- pervisors. While my decision was pending appeal to the Board, the Board handed down its decision in Sierra Vistla o.spital, In.. 241 NLRB 031 (1979). This decision recognized the possibility, for the first time, that partici- pation in union affairs by third party supervisors-those employed by an employer other than the employer whose employees are represented by the union-could render a union incompetent to act as bargaining agent if their participation creates a "clear and present danger" of a conflict of interest affecting bargaining unit employ- ees or the bargaining process itself.' it date the iBoard has nolt disqualified a labor (irganizatlln solel be- cause f the participation of third party supervisilrs in union affairs 'Ihere are, of course. cases. Iredatlrig S,rr a 'ivra, which hold that a union may be disqualified from acting as bargaining representative where it is shown that the unitoll, whether it includes third party supervsnirs or r, has an iiproiper relatinship with an clipliyer 'hich has a compeli iir or olhr close relationlship ith the enipilner with hom it seeks to balrga;lin Se L. R B. Davild HButrick f; 'npanr. 361h F 2d (X) lis Cir Continued 250 EAS TERN MAINE MEDICAL CENTER On June 21, 1979, the Board remanded this proceeding to me to take further evidence and to make findings, in accordance with Sierra Vista, concerning whether or not: [T]he presence of supervisors of Respondent or of third parties as officers on the board of directors of, or in other positions of authority to speak for or on behalf of the Maine State Nurses Association dis- qualifies that association as the collective bargaining representative of Respondent's non-supervisory nurses. The Board deferred decision on all other issues presented in the original decision, including findings of violations of Section 8(a)( ) and (3) of the Act upon which the remand issue had no bearing. Thereafter, on June 29, 1979, the General Counsel filed a motion for reconsideration which was denied by order of the Board dated August 20, 1979. Member Truesdale dissented and stated that he would grant the motion and decide the case "on its merits now, and with- out further delay." Thereafter, I contacted the parties about setting a hearing date for the remand. The parties were unable to agree on a hearing date prior to November 1979. On No- vember 14, 15, and 16, 1979, a hearing was held in Bangor, Maine, on the remand issue. All parties were permitted to present evidence and examine and cross-ex- amine witnesses. Respondent called all the witnesses except one, Vera Gillis, president of MSNA, who was called by the Charging Party to answer about 10 ques- tions. Briefs from the parties were received on January 4, 1980. Based on the evidence submitted in the original pro- ceeding, the findings in my initial decision and the evi- dence presented in the 1979 remand proceeding, I make the tollowing additional findings and conclusions:2 196h); C(B5. r(ir 226 NLRB 537 (1976), enfd sub nom. Interrnautinual Brotherhrod of Ehctircal Workers [CIBS, Inc v. X .L.RB., 557 F 2d 995 (2d Cir 1977), Bausch and Lomb Optical Co., 108 N.RB 1555 (1954). The presence of an employer's own supervisors in the bargaining process had been grounds for disqualifying a union long before Sierra Vlta. See N'as.au & SuJJolk Coniractory .4socialion, 118 NL.RB 174, 17 (1957) In my original decision, I also stated that I believed that Respondent had waived any objection to the competrency of MSNA to act as bargain- ing representatrie because of the presence of supervisors in MSNA This was based on the law as it then existed which, in my view, did not recog- nize an incompetency defense based on the presence of third party super- visors Had any of Respondent's own supervisors been involved in MSNA or in the bargaining process it surely would have know n about it and should have objected during bargaining. Respondent did not object and none of its own supervisors were involved in MSNA or the bargain- ing process. Sierra ista apparently expanded the incompetent defense to include allegations concerning the participation of third party supervi- sors This intervening factor plus the very fact of this remand put into question the efficacy of my waiver finding. However, I note that at least line court has held that an employer waives a litigation inspired defense to a unions' representative status when it bargains with that union for a period of time See King Radio Inc .VL.R..R . 398 F 2d 14, 20-21 (10h Cir 1968) In response to my request that the waiser issue be briefed, Respondent asserts that it was "only in the context of the present unfair labor practice proceeding" that Responden recoglized the collecli. bahrgainiig sitlh MSNA "had been and could be hampered hy an rganizationl cnlaining large numbers of supervisors who were not sufficlently committed to the bargaining process " his assertion exposes the lack (If suhbtance io the Respondent has failed to satisfy its burden of proving that MSNA is disqualified from serving as bargaining representative of its employees. In Sierra Vitra, supra, the Board recognized that par- ticipation of supervisors in a State nurse's organization could, in some circumstances, result in a disqualification of the organization from acting as bargaining agent. However, the Board held that such a disqualification will be found only where the employer "meets its burden of showing that the participation of its own supervisors, or supervisors of third parties, presents a 'clear and present danger' of a conflict of interest interfering with the col- lective bargaining process." Lancaster Osteopathic fIospi- tal Association, Inc., 246 NLRB No. 96 (1979). The em- ployer's burden is a "heavy" one. Lancaster Osteopathic Hospital A soc(iation, Inc.. supra.3 However, according to Sierra Vista, where, as here, an employer's own supervisors do not belong to the nurses association and the employer relies solely on the pres- ence of third party supervisors, the Board has held that there is no "inherent conflict in the bargaining process between supervisors and employees." (Ibid.) As the Board has stated in Lancaster: The active involvement in PNA of a supervisor em- ployed by a third party may create a conflict of in- terest "[n]ot because . . . there is an inherent con- flict between all supervisors and all employees, but because of the possible relation between the em- ployer with whom bargaining is sought and the em- ployer or employers of the supervisor participating in the bargaining process." With respect to supervi- sors of third parties, a disqualifying conflict of inter- est may result from a demonstrated connection be- tween the employer of the employees whom the nurses association seeks to represent and the third party employer or employers. Finally, a simple assertion that some of the association's leaders hold supervisory positions in hospitals which are in competition with the employer is clearly insufficient to "demonstrate a clear and present danger of a conflict of interest which compromises [a union's] bargaining in- tegrity." Lancaster, upra. See also Arlington Hospital As- Respondent's defense First, the long line of cases recognizing the ncom- petency of unions Io act as bargaining representatives is bottomed on concern for the employees, not the employer. In Bausch A Lomb Optical Company, 108 NLRB 1555. 1559 (19541, the Board gave, as the rationale for its disqualification rule, that a union must approach the bargaining table "with the single minded purpose of protecting and advancing the interests of the employees who have selected it as their bargaining agent and there must be no ulterior purpose." Secondly, had Respondent been prejudiced by the presence of third party supervisors surely it would have objected sooner Is failure to do so durirg the year-long bargaining process at the ery least renders its allegation that there existed a conflict of interest highly unlikely. The alleged conflict is hardly in the category of a "clear and present danger" if Respondent itself-as tough as it was in negotitions - failed It recognize it during bargaining Cf. 4cme Wire iork,. I1.. 229 NI.RB 3333, 336 (19771, enfd 582 F2d 153 (2d Cir 1978) cert denied sub non. Shopmen's Local 455, Internarltnal Asictwriaion of' Bridge. Structural and Ornamental Iron Workers, .41-('IO .Arne Wire 1orkl, In'.] . .L. KB. 99 S.Ci. 1049 (1979) ' The parnllcpation of all employer's ow n super% isors in the bargaining pries, had been ground for disqualifyrig a union long before Sierra 'oita See \'asau & Sjfl, l upra, fr I 251 I)t I'SI()NS ()1: NA I I)NAI. I.AB13()R Rl.AII()ONS )ARI) %ocatioti. Inc. /a .Ir/inlgtonl Iospital, 246 NL R NLRB No. 159) (1979); IluallAhurg Generul lospital, 247 NLRBI No. 30 I 980X()): Rocjord M:morial .l.oci(Jlltonl dl/b/a Rock/Ord .1etmorial llopital, 247 N RB No. 51 (198): Sidnel v lrhcbr Cancer I stilute, 247 N I R No. I (1980). Analyzing the evidence and thle largullCnts i this case in accordianc w ith the albove authorities I find and conl- clude that Respondeiit has not shown that a disqualifying conflict of inllerest-on e that presents a clear and present danger to bargaining unit employees or the bargaining process-may result from any connection between Re- spondeiit and any other emrployer whose supervisors par- ticipate in the affairs of MSNA. My reasons inicluding the niecessar N findings and cone llusions re set forth hbelow: 1. No supervisors of Respondent are officers or direc- tors of MSNA. Nor hits Respondent shown that any of its supervisors are in positions of authoriy in, or even memnber of, MSNA. 2. There are about 8X()00 members of MSNA. PIreseitly, about 12 percent of the members hold supervisory posi- tions. some with public sector eployers. The menmber- ship has beel steadily dcclining. as has the ratio of super- visor 5 mlellbers. For example. in 175 Ihcr.c ere 1283 members ad 18 percent of those were upCervisors he designation supervisor was determined hy computilig tilhe number of members who indicated on their applications that they were either "(1) Administrator or Assistant or "(3) Supervisor or Assistant." Some of the employers of these supervisors were public sector employers such as the State of Maine. Mailne labor ;laws provide for the in- clusioni of supervisors of public sector employers il col- lective-bargainling units and some supervisory meihbers of MSNA are represented by labor organizations. 3. In the past 4 or 5 years anywhere from 4 to 7 of the 13 or 14 officers and directors of MSNA were in super- visory positions, some with public sector employers, such as the State of Maile. 4. The bylaws of MSNA provide for a council on eco- nomic and general welfare (hereafter referred to as 1- and G/W or the council) which is responsible for an economic security program. This includes directing orga- nizational and collective-bargainiing activities for nurses "eligible for representation unler Maine abor l.aws aid under Federal Laws and Executive orders," who are de- fined as "eligible members." The 1()-member council. which is to make annual and periodic reports to the MSNA board of directors and the MSNA general mem- bership, is "accouitable to" and elected by the "eligible members." The council is authorized to establish guide- lines for the chartering of local bargaining units and to execute, on behalf of MSNA and the local bargaining units, all bargaining agreements negotiated. The bylaws also provide that local bargaining units will "approve or ratify a collective bargaining contract" by majority vote. The MSNA bylaws provide that the council's program may he funded by an "assessment in addition to annual dues, payable by all eligible members" and set by eligible members at the annual convelltion. The bylaws also pro- vide that "eligible members shall approve . . . annual ac- couits, audits aiid a budget at the MSNA annual convertn- ion. " 5. At the May 1975 meeting of the MSNA board of directors, the board voted that there hbe an amenidment to the hylaws of the MSNA to chaiige the status of the then-coliiissioin on econllOnlic and general welfare to re- ilect its "insulation" vith a "separate budget." Initial funlding of S2(X) was approved for the remainider of 1975 for the commission. At the Septembnher 1975 MSNA State convention the cihanged tatus described ahove was approved and the colmmission was changed "to a Council with its own budget and with direct accoulltahilit to membership." Tlhereafter "eligible members" appro ecd all accounlt, audits, aind budgets The council is thus the only commis- sion or counlcil of MSNA not directly accountable to the board. ' 6 The 1970 llllual report alllounced the board of i- rector's p olicy, determined at the MaN 1, 1976. meeting, to be as fllovws: "ClearI', those members of the Board holdilg super isory posilions must remo ve themselves from disclsOll anld o oting (on niatters concerning the I conolnic Security Programn" There is testimony aid solileidliatiol ii the illc minutes hat supervisors did ab- stain from voting in accordance with the above po:icy. 7. The forination of the F and G/W council coincided with a organizational campaign and bargaininig activities at Respondent's hospital. It appears that the primary- perhaps the onl-activity of the E and (i/W council during the term if its existence was organization of aid bargaining ith Respoideint. Since September 1977, the couniicil sole r esponsihilitN has beenl to follo the litiga- tionl of tills Case. 8. As stated in my original decision, the collective-bar- gaining activities at Responidenlt were carried on through the EMMC local hargainillg unit of MSNA which is sep- arately chartered and has separate bylaws. Membership in this unit is limited to members of the NLRB approved hargaiiinig unit. No supervisors are included. The bylaws provide for a negotiating and grievance committee which has the authority to draw' up and present bargain- ing proposals which it did during the negotiations with Respondent. TIhe bylaws also contain a provision which provides for a contract ratification vote by all employ- ees. not only members. There is also a provision that provides for grievances under any contract to be present- ed hy the unit's negotiation and grievance committee. Under the charter, the negotiating ad grievance com- mittee is charged with "seeing that the terms of the agreement are enforced." The and (/W council has established a statement of criteria for the chartering of local bargaining units which states that it shall be the responsibility of the local unit, inrer alia, to formulate conltract proposals and to partici- pate in negotiations and ratify final contracts. The state- nient also provides that the local bylaws clearly must state that the functional purpose" of the local unit is "to represent members i collective bargaining," that "con- tract proposals must be approved by the members of the -* S- /Ir tlrrhnIln I pr / il i, lt lr. /In . , ,1 miiton If pytal/ . 246 NtI R N.I 159 (I 7 1 LAS I 'RN MAINt NlMEt)ICA C( N IIR local unit before they are presented flr negotiation" aind that the inall negotiated contract ust be approved by a majority of the members of the local unit before it is rati- fied. The chartering criteria ere not discussed with the MSNA board of directors. During the period when it hargained sWith Respondent in 1976 and 1977 the local bargaining unit actually for- mulated hargaining proposals and negotiated with Re- spondent. There is no e idence of supervisory participa- tion ii the local bargaining unit or in the bargaining which actually took place with Respondent. 9. There is no eidence that the board of directors has veto power over the actions of the E and G/A council or the local bargaining unit with respect to collectixe- bargaining proposals or the final substantive content of collective-bargaining agreements. 10, The E and G/W council is authorized to fund the economic security program by annual dues and assess- ments payable by "eligible members." The fee is set by the "eligible membership" at the annual convenltion. It is authorized to prepare, submit. and approve its own budget. Such activities are limited to eligible members who pass o the budget separately at the annual consen- tions. Separate funding is also available to local units, such as the EMMC local unit, which has the authority to assess and receive dues from its members. Neither the local unit nor the council has apparently secured funding through alr assessment upon eligible members. The council has submitted its budget through the finance committee of MSNA and the board of direc- tors where it has been incorporated in the MSNA budget. Funding since it was formed as a council in 1975 has been provided to a great degree through a grant from the American Nurses Association (ANA), the parent of MSNA. It has also utilized general revenues as follows: 1.95 percent of MSNA dues for 1976-77; mini- mal amounts for 1977 and 1978X; and nothing after 1978. The financial relationship between the E and G/W council and the board of directors is indistinguishable in any significant manner from that in Arlington lospital As- vociation. Inc., 246 NLRB No. 159 (1979). The Board found that the EGWC in that case was insulated from al- leged supervisory influence and participation. Here, as there, the board of directors plays no role in collective bargaining. In the instant case, unlike in the Arlngton case, the MSNA bylaws do not provide for a resolution of a budgetary conflict between the E and G/W council and the board of directors or the finance comniittee of MSNA, but in this case it is clear that the council and its "eligible members" have the authority to provide for annual dues and assessments to fund their program indc- pendently of MSNA. Moreover, in this case the evidence shows a specific intent in te formation of the council to insulate the council from the Board. II. Respondent alleges some impropriety in the MSNA requirement that the EMMC's local bargaining unit adopt a bylaw which stated. "A closed or agency shop is required in each contract to cover the expenses of E and G/W program." Apparently, this provision ;s as inserted to make the collecli, e-bargaitning actii ties of MSNA pay for themselves without burdening the MSNA's educational and promotional activities. In this respect, the pros ision, if aniytlilng. reinforces the insuiila- tion of local hargaining from general MSNA interfer- cnce. Respondent suggests, without supporting evidence, that this provision was prompted by third party supervi- sors in MSNA. here is no evidence that this provision s;sas nirandated or even suggested by third part supervi- sors who were in positions of aulthority in MSNA or that their employers caused them to take such a position be- cause they had an interest in undermining Respondent or the bargaining process. Nor is it shown that this provi- sion worked to the detriment of the employees by virtue of soime recognizable conflict of interest. Absent such evidence-which would be arguably relevant only after Sierra Ia t -- internal union requirements as to t lie proper coutrse of bargaining are none of an employer's business. ' 12. Respondent states in its brief that. in the 1976 annual report of MSNA, a supervisory dominalted com- mission on nursing services. essentially nursing adminis- trators, expressed some confusion as to whether theN should retain membership in MSNA in view of the lat- ter's participation in collective bargaining and that, as a result a committee was appointed at the 1976 aninual convention to study the question of "conflict of interest for supervisory administrative personnel in a multi-pur- pose association." From its brief I cannot tell hat Re- spondent contends from this evidence. How ever, it is clear that the supervisory administrators were concerned with their own role as supervisors and conflicts they had in acting as supervisors for their employers. Nothing in the record establishes the kind of conflict of interest de- fined by the oard in Sierra Vlista and subsequent cases. Nor is there any es idence that this comimission interfered with or participated in the bargaining actisities of the E and G/W council or the local bargaining unit. 13. Some supervisors also served on an ad hoc so- called Think Tank committee appointed in 19 79 -well after the bargaining herein--by MSNA President Vera Gillis to study, recommend, and articulate long and short term goals for the NISNA. A consensus of the comnmit- tee, kwhich included supervisors and nonsupervisors rec- ommended that the education and general welfare coun- cil be dissolved. The recommendation was rejected at the September 1979 annual convention. at least in part. because of the issuance of the original decision in this case and the pendency of the appeal. 14. Neither the commission on nursing service nor the "Think Tank" committee have any authority over the E and G/W council, the local bargaining unit of Respond- ernt, or collective-bargaining activities generally. 15. Only I of the 10 E and G/W council members kk as alleged to have been a supervisor-for a limited period. The chairperson of the E and G/W council from 175 to 1979 was Kathy Whitzell. Since April 1978 she has been in a supervisory position with Augusta Mental Health In- stitute. Before April 1978 she was in a nr1onsupersvisory : h} sugL!gstolll iI Rpollid il',s bhrief i ti .SN v' , rsirilc c oi, i , .igIll sIp C1.itlsAIC ill h.lrgainlmllg irtcriferd uith tht ill{\ of thi' par lies [10 I(.ich .Ig.l 'te"i' is 1het.r s1l phl,,iN Rcspor it'>Ll's IliliJrt ' lit har- 2gr11I l gLtI l t 1 l l 111d ilhet ill}.llr ahll r pr.it', Cit auell-' thr i rt o tlI pIrtlc ,h ; llgrinlti RKespinrle-dc it i ll timle l]cel untir hbor practaIce harges galiIt NIMSNA 25S DECISIONS OF NATIONAL LABOR RELATIONS BOARD position. She is employed by the State of Maine and, de- spite the fact that she appears presently to be in a super- visory position, she is eligible for representation in col- lective bargaining under the Maine State Labor Relations Act. She is a member of a bargaining unit represented by the Maine State Employees Association. Whitzell's relationship to the E and G/W council was not objectionable prior to April 1978 because she was not a supervisor. Nor is there any evidence that she used or could have used her supervisory position for the State of Maine to effect the E and G/W council in such a way as to establish a conflict of interest detrimental to the employees of EMMC. That she works for the State of Maine or that she is represented by another union in her own employment conditions does not show a conflict of interest. No other evidence or argument on this point was submitted. 16. Respondent called seven witnesses who were alleg- edly in positions of authority with MSNA and also alleg- edly supervisors. Many were called simply to establish their supervisory positions. One was a supervisor only after April 1978, for a public employer; two others worked for public employers although one had in the past worked for a private employer; and one worked for an agency closely connected with governmental organi- zations. None testified to anything that would even re- motely be considered a conflict of interest much less present a clear and present danger of such a conflict under the Sierra Vista doctrine. Marcelle Solomon is the director of the Early Periodic Screening Diagnosis and Treatment program for the Aroostook County Action Program. She is a member of MSNA and attended the "Think Tank" conference in June 1979. She is also apparently on the MSNA's com- mission for nursing services, a group concerned primarily with nursing administration. She testified that she never took any action in these capacities that would have influ- enced or controlled the collective-bargaining activities of MSNA. Betty Ann Kent was on the MSNA board of directors from 1975 to 1977. She presently works for the State of Maine and prior to August 1978 she worked for the Community General Hospital in Fort Fairfield. At the latter hospital she was a supervisor. She testified that while she was a member of the board she did not, to the best of her knowledge, take any action that controlled the collective-bargaining activities of MSNA and she never discussed nor was concerned about the MSNA budget during her tenure on the board. Kathy Whitzell testified that, during her involvement with the E and G/W council-from 1974 to the pres- ent-no supervisor interfered with the decision making process of the council. She was the president of the council and after April 1978 a supervisor with a public employer. Hope Hurd, who is employed as a supervisor by the State of Maine at the Bangor Mental Health Institute and is represented by a union in collective bargaining, was a member of the board of directors. She was an officer of one of the Districts of MSNA from 1975 to 1978. She was called to testify by Respondent but not asked about her participation, if any, in E and G/W council matters or in bargaining with Respondent. Louette MacLeod, an assistant director of nurses with the Waterville Osteopathic Hospital in Waterville, Maine, was president of MSNA from September 1975 to September 1977. She was not asked any specific ques- tions about her participation, if any, in E and G/W council matters or in bargaining with Respondent. Respondent also called Agnes Flaherty and Mary Ann Ogonowski as witnesses. They were officers and direc- tors of MSNA and also supervisors for Maine Medical Center (also referred to as MMC). Since Respondent argues that there was an adversary or objectionable rela- tionship between it and MMC the roles of these supervi- sors in MSNA is discussed below. 17. The only specific evidence concerning a relation- ship between Respondent and an employer whose super- visors served on the board of directors involved supervi- sors of the Maine Medical Center. MMC. located in Portland, about 100 miles from Bangor.6 is the largest hospital-in number of beds-in the State of Maine. Re- spondent is the second largest. Respondent's evidence is as follows: Agnes Flaherty is the director of nursing at MMC. Flaherty was president of MSNA from 1973 to 1975 and a director thereafter. She testified she was "not aware of any detailed activity or attempts at organizing" on the part of MSNA. She testified that she was president when the council on economic and general welfare was formed. She did not vote on the matter however. She also voted-as did a majority of the members of MSNA-to suspend the activities of the council on eco- nomic and general welfare at the State convention in September 1977. She was also a member of the so-called Think Tank committee in 1979 which recommended dis- solution of the council. At the general convention she voted against the recommendation. She has never re- ceived money or payments from her employer for her activities in MSNA. No evidence was elicited which showed that Flaherty, as a director of MSNA during the period that it was bargaining with Respondent, partici- pated in any way in the bargaining process. Nor was there any suggestion in her testimony that she or any other supervisor had interfered with the bargaining ac- tivities of the E and G/W council. She testified that when the council was formed by amendment of the bylaws in 1975 she did not vote on the matter. She also voted in favor of suspending collective-bargaining activi- ties in the 1977 resolution and, although she was part of the "Think Tank" committee which recommended disso- lution of the E and G/W council in 1979, she voted against dissolution of the council at the convention. Other supervisory members of MSNA employed by MMC are Eleanor Irish, director of ambulatory nursing services; Linda Cox Pearson, director of psychiatric nursing; and Judith Stone, a substitute for Pearson-be- ginning on September 9, 1979-because Pearson was out on maternity leave; and Mary Ann Ogonowski, director of surgical nursing. Leah Vosmus, also employed by h Il it brief, Respondent states that Portland is 135 miles from Bangor. At the hearing MMC's president testified it was 100 miles distant. 254 EASI'.RN MAINE MEDICAL. CENTER MMC, is a director of a community health center where she supervises five nurses. Vosmus was second vice president of MSNA from 1976 to 1978: Pearson was a di- rector during that period; Ogono-Wski w;as a director from 1979 to the present; Stone is presently serving as di- rector and first vice president for a term running from 1979 to 1981. She was elected in September 1979 but did not attend the convention which elected her. None of these other supervisors testified except for Ogonowski. Ogonowski was not a director during the bargaining with EMMC which terminated in July 1977. She was elected a director in September 1979. She did serve on the commission of nursing services from 1977 to the present and on the 1979 "Think Tank" committee. Ogonowski testified that since she became a director of MSNA she does not recollect receiving any reports from the E and G/W council. She also testified that the board of directors "does not have control over the Council of E and G/W." The evidence concerning the relationship between MMC and EMMC is as follows: The two hospitals com- pete to a certain extent for personnel, such as specialty type nurses, for example, in special care units, and super- visors. In terms of facilities provided, Respondent offers the following: The Maine Health System Agency (MHSA), created pursuant to Federal law, is authorized to rule on applications for new facilities and equipment costing over $150,000. The purpose of this agency is to prevent costly and inefficient duplication of facilities and equipment. Dr. Edward C. Andrews, Jr., president of MMC, testified that, several years ago, the Health System Agency approved the purchase of a CAT scan- ner, a computerized X-ray machine, for MMC. EMMC also has a CAT scanner but allegedly its purchase was not approved by MHSA. MMC also is the only hospital in Maine which performs open heart surgery. Patients and their physicians are free to use any hospital in Maine and MMC admits patients from all over the state. There is no relationship between the patient census of MMC and EMMC; both hospitals are full. Dr. Andrews was unable to testify whether there was a staffing relationship between the two hospitals. EMMC and MMC also cooperate, as members of the MHSA, and perhaps the American Hospital Association, in matters such as "negotiating of Blue Cross, education- al activities for hospital administrators and supervisory personnel." Dr. Andrews testified he did not view the two hospitals as having an adversary relationship. In ad- dition, according to Dr. Andrews, the operation of the Maine Health System Agency requires consultation and joint planning among hospitals "who serve a similar area when they are going in for new facilities and new equip- ment." To the extent that MMC and EMMC serve simi- lar areas the required consultation applies to them. Dr. Andrews also testified that he has never utilized any of his supervisors to influence the determinations of any labor organization nor spoken to them about using their positions to influence decisions of MSNA. He testi- fied, "I would not direct or condone a supervisor who works for me influencing the union, the collective bar- gaining unit of the MSNA." There is no evidence that any of the MMC supervisors participated in or influenced the bargaining between MSNA and Respondent. From the above evidence, I find that none of the MMC supervisors participated in the bargaining activities of MSNA or spoke for MSNA in such a way as to affect the bargaining process. Moreover. I find that there is no special relationship between MMC and Respondent which would cause MSNA to be declared incompetent to represent Respondent's employees because MMC su- pervisors participated generally in the affairs of MSNA." 18. Respondent also argues in its brief that other un- named third party employers may compete with EMMC through MSNA because MSNA participates in the Maine Health System Agency. The evidence shows simply a general interest by MSNA in the agency as it affects nursing services generally. None of it even re- motely deals with collective bargaining, supervisors, or competition between hospitals. The only specific evi- dence, aside from the alleged competition with MMC, discussed above, is the following: 4. At its June 22, 1979, meeting, the Board voted to endorse an application for a "certificate of need" (part of the MHSA application process) as follows: A group in Farmington has requested that MSNA endorse their efforts of applying for a certificate of need for a 65 bed ICF in Farming- ton. It was M/S/V that MSNA respond to Leon Bresloff and Mary Bayer's request for a letter of support, by writing a letter to the Department of Human Services stating that the MSNA Board of Directors endorse the concepts reflected in L. Bresloff and M. Bayer's letter of 6/4/79 and that they are both members of MSNA. [Exh. RR-6D, page 14.] There is no showing that supervisors of employers who had a competitive or adversary relationship with Respondent participated in the proceeding or did so for purposes inimical to EMMC. The evidence is thus wholly irrelevant. Nor has Respondent shown that the fact that MSNA had anything to do with the Maine Health System Agency's approval of a CAT scanner for MMC that this action had any effect on the bargaining process between EMMC and MMC or was the result of pressure from the E and G/W council or that MMC su- pervisors used MSNA to cause a preference for MMC over Respondent on this matter. The evidence is unclear whether EMMC even applied for a CAT scanner, but it is clear that it now has one. 19. Respondent alleges that, as a general matter, the E and G/W council is not sufficiently insulated from the MSNA board of directors, which includes supervisors and thus there is a potential for supervisory influence on the council's collective-bargaining activities. Respondent points to evidence of board of directors meetings with council leaders which involved primarily status reports on collective-bargaining activities and of alleged "control of the purse strings" of the Council. I reject this allega- tion. 255 25h First of all, the argument flies in the face of the direct evidence discussed above that the council xwas formed o be insulated from the board of directors and was ac- countable oniy to the memnibership that it hal separate and independent budgeting and dues asssIIlenlt ahorit xwithin its ow ll eligible memnbership \hich xcluded stat- utory supervisors; aid that the board stated a policy that supervisory members of the board should riot discuss or volte (iln anrd (i/W' cvouncil atcrs which ldid comlli before it. Respondent's evidence on board of directors neet ings showed that the council met \vitlh the board to irniform it of its acixities, includig hbargaining actliitly, thal it ap- provec d the council's budgt, that it considered additional requests for funding, restricted funding, discussed the proposal by the council thlat it study the possible affili- ation for collective-bargaining purposes with another labor organization, arid that it discussed the suspension of council activities after a I '77 resolution at the aal MSNA convention suggesting that the council no longer be involved ill collective bargaining except to pursue the instant litigation. None of this evidence is counter to the stated purpose of the formation of the council that it be insulated from the board and that supervisors retfrain from participating i Board deliberations inolving the council. There is no evidence of interference or partici- pation by tile board or arty supervisory board rnellber i the bargaining activities of the E and G/W council or tle local bargaiing unit. Respondent also cites evidence that onl various cca- sions, the Board approved requests for additional x- penditures by the council, approved allocation of 1.95 percent of MSNA dues for 1976-77 council activities and authorized the council to hire a part-time secretary. What Respondent does not cite is other evidence sub- stantially diminishing the impact of this evidence which supports the insulation of the council set forth in its cre- ation. In May 1976, the boardt determined that "those members of the board holding supervisory positions must remove themselves from discussion and voting on lilt- ters concerning the Economic Security Program." 'he evidence indicates compliance with this policy arid Re- spondent has not shown intervention by specific supervi- sors on the board in council budgetary matters. As to funding, the evidence is quite clear that the council's ac- tivities were funded to a great degree from an ANA grant of $5,(X). The council's report to the 1977 coniven- tion states that the $5,(XX) grant was used for staff salary and the "council asked the board of directors to take $5,000 allotted to E and G/W expenses and return these funds to the general fund of the MSNA budget." In a January 1977 meeting, the board minutes state "The Council will not accept the Board's recommendation to hire their own part-time secretary." Other evidence simply shows that the board and the council met to discuss budgetary matters and that the council reported on the status of bargaining arid litiga- tion with Respondent. Nothing more specific is ordered Indeed, at one such meeting, the board specifically ad- vised the council that expenditures beyond the approved budget were the responsibility of the council. On April 28, 1978, the Board reduced the council's budget to $1(500) aid restricted it to expenses incurred ill the legal proceedings w ith Respondent. estilnolly indicates that only $ 50) was spent and that there vas n o fundirng for E arid (/W activities thereafter. Respondent's argunenit is basically that the board of' direcors aind other committees dealt with tie F and G(/ WX council atl times when supervisors were members of tilhe Board and such other comntittees and thus "tainted" the coucil. [lhe argulentei fails to show ai "clear and present danger" of a conflict of interest. First of all, it is clear that the council as formed with the object of in- sulatinig it fromr the board of directors and noneligible rnmlhebers. Scondly, Respondent has not shown that su- perx isors acted any differently than other m embers of the Board inl dealing with the Council. I'hirdly, Re- spondciit has not shown any actual interference in bar- gaining. Indeed, the bargaining was i the hands of the local iiit-i.c., the EMMC bargaining unit w hich was l\o steps removed from the supervisors on the board. Flourth, there ,'ias no showinig that the supervisors on the Board acted on behalif of their employers who had al objectionable relationship with Respondent . Fifth, there was no showing that the supervisors on the Hoard took or could have taken positions which would influence bargaining to the detriment of bargaining unit employees and vhich presented a clear and present danger of a con- flict of interest ill the bargaining process. See Sidner' Frher Cu'ocr'' r lntilulc, upra. 20. As mentioned in my original decision a resolution was passed at the September 1977 annual convention to suspend the collective-bargaining activities of the E and G/W council, except for the activities at Respondent which were the subject of pending unfair labor charges. The chairperson of the council in her report in support of the resolulion stated that the financial drain and use of staff time caused bh the bargaining with Respondent were major flactors for the resolution. The report stated that Respondent "proved to be a formidable opponent at the bargaining table" arid it also pointed to the result of the decertification election. The (lecertification election. which MSNA lost, was set aside. 21. find that Respondent's unremedied arid serious unfair labor practices detailed in my original decision were directly responsible for the resolution suspending E and G/WV council activities in 1977 and subsequent ac- tions to further suspend or dissolve the collective-har- gaining authority of the E and G/W council. 22. Respondent alleges that supervisory participation in the 1977 MSNA resolution to suspend E and G/W council activities and the 1979 "Think Tank" recommen- dation to the same effect was somehow objectionable be- 7 Ih hvllts f Ihe MSNA provide that i tI E and (i/W clunicil shall "dat Il ;accordance with thie policies, hblaw;s and philoso phics (lf he MNNA" Certainly uone such pIlicy is the taled desire of tile board as issr ill Ie byav ns and I, offTicial mlnu es io insulate the 'otuniil Al- lthet is Ihe balrd 's stled polihc5 i presetlI bioard slper.lsWrs from oilinllg or) tF alld (/ /W oulil maltlters Moreover, ther i no evidence that lltere was i cnll ic f interest, pote(rltial or actual by virtue f the role of third-parly supersisirs in effectuating pcics, bylaws. or phillos- phi' o.f Ihe MSNA iconslistet ith the bargaining positions iof MSNA or It the dtriilclt of Respo detlll 's crnploye , sshonl i represnts 1I this respect, the MSNA bylaws re similar to oties considered nonobljec- liionabl h the Board in the Irligrn Ilolpitl case. upra DF( ONS 01: NA I 10NAI_ LABOR RFLA I IONS W)ARI) F.ASIITRN NMAINE M)ICAI. CN'TI R cause it permitted the council to continue to hargaining activities only with respect to Respondent. That may be true but it is difficult to see how this adversely affected the EMMC employees. Indeed, MSNA was true to them by continuing to fight on their behalf despite initernal op- position to collective bargaining as a general matter. In its brief, Respondent argues, "obviously, supervisors of competitor hospitals have a motive on behalf of their em- ployers, to continue proceeding against Eastern Maine Medical Center while preempting the possibility of orga- nizational activity and collective bargaining at their own institutions." There is no evidence to support this allega- tion. Nor is there any evidence that the efforts to sus- pend bargaining were spearheaded by supervisors acting for their employers or that those employers somehow conspired with MSNA to limit bargaining only with re- spect to EMMC employees. Indeed some of the supervi- sors in MSNA were employed by public employers who did bargain collectively with unions. What really caused the E and G/W council to atrophy, according to the report of the chairperson of the E and G/W council to the 1977 annual convention, was a loss of will on the part of MSNA members caused by the apparently suc- cessful but unlawful had-faith bargaining by Respondent. Respondent also argues that the fact that the 1977 res- olution stated that the future direction of "Economic and General Welfare" would be "determined" by the MSNA board of directors "in the interim between conventions" indicates a lack of insulation from the board. I disagree. First, as I have stated, the resolution was the direct result of Respondent's unfair labor practices. Secondly, the bylaws creating an insulated council and its inde- pendent budgetary authority were not affected. Indeed, the council continued to exist. The evidence shows no difference in the relationship of the council to the board after September 1977, except that the council suspended all activities except for the instant litigation and the board authorized studies to determine the direction of the council. That the "Think Tank" recommendation to dissolve the council was put to a vote at the annual con- vention and that the recommendation was defeated shows that the council was still viable. although dor- mant, until the outcome of this litigation. 23 Respondent's arguments, simply reduced, amount to a general sl;ltemelnt that third party supervisors has.e authority ini the MSNA. and aill allegation that there ap- pears to be a division-not attributcd solely to third party supervisors and spawned to a great degree by Re- spondenlt's unlawfiul conduct as to what kind of colinmit- menrt MNSNA should make to collecti e bargaining. Such factors as interinal divisions among member,, as to the rl- ative commitment 1( collective bargaining. absent a spe- cific showing of a conflict of interest, are not sufficient to disqualify a union from representing employees. See IlcaldIhurg General Ilospital. 247 NLRB No. 3) (1980()). My reading of the Board's post Sierra ista decisions leads me to conclude that the Hoard will not "examine the internal affairs of [the labor organization] or the role the third party supervisors play in the bargaining proc- ess" absent a "demonstrated connection or relation be- tween the Employees and the employers of supervisors who . . serve in positions of authority in [the labor or- ganizationl]." l.aicawter O.seoplthic lIospital .lssocialion Inc., 246 NLRH No. 96 (1979). Thus. Respondent's argu- ments concerning the role supervisors generally pla on the board of directors or on committees which arguably have some dealings with the E and G/W council are ir- relevant. unless the employers of these supervisors ha,.e an objectionable relationship with Respondent. Respond- ent has failed to show specific evidence of such a rela- tionship. Hut I have gone further and considered argu- menits of general supervisory influence aid participation. Respondent has failed utterly to show that whatever dealings supervisory personnel on the board or oil other committees had with the E and G/W council have or could have had any effect on collective bargaining with Respondent which would be detrimental to the employ- ees represented hby MSNA. " Althoughl R p-lmdclnt (Idoe,1 nol pclficall] raise the issue, t s ilear thalll IOtram 1, noi nrlnl-llr p legtlionl *i - halgai nin.lr g Iulillri in Ihe crlli- 1Jt10111 it' VINA hcrcSI l c'll S ,' '.r/1 'lhngtl tipla/ Ihl',ltl . ,pra 257