Perth Amboy General Hospital And Old Bridge Regional Hospital

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Raritan Bay Medical Center a/k/a Perth Amboy General Hospital and Old Bridge Regional Hos- pital and District 65, United Automobile, Aero- space & Agricultural Implement Workers of America, AFL-CIO. Cases 22-CA-13612, 22- RC-9300, and 22-RC-9301 31 March 1986 DECISION, ORDER, AND CERTIFICATIONS OF RESULTS OF ELECTIONS BY MEMBERS DENNIS, BABSON, AND STEPHENS On 12 September 1985 Administrative Law Judge James F. Morton issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, i and i The Respondent has excepted to some of the judge's credibility find- ings The Board 's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In sec II,F,2 and fn 2 of his decision , the judge incorrectly reported the name of and citation to Jamaica Towing, 236 NLRB 1700 ( 1978), affd and remanded on other grounds 602 F 2d 1100 (2d Cir 1979) In sec II,F,1 of his decision , the judge incorrectly reported the citation to Dutch Boy, Inc, 262 NLRB 4 (1982), enfd sub nom ARTRA Group, Inc v NLRB, 730 F 2d 586 (10th Cir 1984) We correct these errors 2 We agree with the judge that the Respondent's restriction on the dis- tribution of union literature was unlawful We do so, however, because Administrative Coordinator Connor told employee Walker that she was not permitted to distribute union literature between the time she punched in and the beginning of her shift We find that in the Respondent's facili- ty such time is nonworking time and under the Respondent's no-distnbu- tion rule distribution on nonworking time is not prohibited Thus, the re- striction on such distribution is unlawful Member Babson, in finding that Connor's instruction to Walker not to distribute union literature violated Sec 8(a)(1) of the Act, relies on the fact that Walker's activity occurred on nonworking time in a nonworking area and that the Respondent failed to demonstrate the necessity for its prohibition of such activity See Stoddard-Quirk Mfg Co, 138 NLRB 615 (1962) We also agree with the judge that the Respondent's president violated Sec 8(a)(1) of the Act by calling a union activist an agitator and trouble- maker in the presence of other employees , but only for the following rea- sons The judge found that during an informal discussion session follow- ing a meeting the Respondent held with employees to discuss the Union, employee Lopez was discussing decertification with a coworker The Re- spondent's president, McLaughlin, began to walk toward Lopez and told the employees to go back to work When Lopez asked McLaughlin if she could finish her conversation, McLaughlin became angry and called her an agitator and a troublemaker who did not belong at the meeting Lopez testified that she thought McLaughlin was going to hit her She then left the meeting McLaughlin's comment equates union activity with causing trouble and indicated that employees who engage in union activities are out of favor with the Respondent The statement emanated from an authoritative source, the Respondent's president, and was not an isolated remark conclusions as modified2 and to adopt the recom- mended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Raritan Bay Medical Center a/k/a Perth Amboy General Hospital and Old Bridge Regional Hospital, Perth Amboy and Old Bridge, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. Insert the following as paragraph 1(f) and relet- ter the subsequent paragraph. "(f) Unlawfully restricting the distribution of union literature." CERTIFICATION OF RESULTS OF ELECTION IN CASE 22-RC-9300 IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for District 65, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO and that it is not the exclusive representative of the employees in the bargaining unit in the above-designated case. CERTIFICATION OF RESULTS OF ELECTION IN CASE 22-RC-9301 IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for District 65, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO and that it is not the exclusive representative of the employees in the bargaining unit in the above-designated case. Rather, it occurred during a campaign in which other unfair labor prac- tices were committed Under all the circumstances , we find the comment coercive and violative of Sec 8(a)(1) of the Act s The Respondent's motion to sever Cases 22-RC-9300 and 22-RC- 9301 from Case 22-CA- 13612 is denied Absent exceptions , we adopt pro forma the judge's recommendation that certifications of results of elec- tions issue in Cases 22-RC-9300 and 22-RC-9301 Mitchell A. Schley, Esq., for the General Counsel. Peter A. Somers, Esq. (Lindabury, McCormick & Esta- brook), of Westfield, New Jersey, for the Respondent. Ellen F. Moss, Esq., of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASES JAMES F. MORTON, Administrative Law Judge. Elec- tions were conducted in Cases 22-RC-9300 and 22-RC- 9301. District 65, United Automobile , Aerospace & Agri- cultural Implement Workers of America, AFL-CIO (the Union) did not receive a majority of the votes cast in either election and it filed objections . Certain of those 279 NLRB No. 10 PERTH AMBOY HOSPITAL objections[ were identical with the allegations of unfair labor practices set out in the complaint in Case 22-CA- 13612. The issues in the representation cases are whether there is merit to any of the allegations of unlawful con- duct and, if so, whether the results of the elections should be set aside and new elections conducted. The al- legations of unlawful conduct are that Raritan Bay Medi- cal Center a/k/a Perth Amboy General Hopsital and, ad- ditionally, a/k/a Old Bridge Regional Hospital (Re- spondent): (a) by its administrative coordinator, Kathryn Con- nor, unlawfully restricted the distribution of the Union's campaign literature in mid-October, 1984. (b) by one of its unit coordinators, Debra Mahoney, warned employees in mid-November, 1984 that they would no longer get merit raises if the Union was selected as their collective bargaining repre- sentative. (c) by its president, Keith McLaughlin, (1) informed employees on about 22 November, 1984 that Re- spondent would not bargain in good faith with the Union if the employees selected the Union as their representative and (2) made disparaging remarks to employees because they supported the Union. (d) by its chief medical technologist, Judith Gold- berg, (1) in mid-October, 1984 unlawfully interro- gated an employee as to her support for the Union, impliedly warned her that she would suffer because of that support and solicited grievances to induce her to abandon her support for the Union and (2) on about 29 November 1984 threatened employees with stricter enforcement of work rules to discourage support for the Union. I. JURISDICTION As established in the pleadings, Respondent is a New Jersey corporation engaged in providing health care services. Its operations annually meet the Board's juris- dictional standard for employers providing such services. The pleadings further establish that the Union is a labor organization as defined in Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent operates a 459-bed hospital in Perth Amboy and an 80-bed hospital in Old Bridge, both in New Jersey. Altogether it has about 1000 nonprofession- al employees and about 400 professional employees, with each group exclusive of managerial employees, physi- cians, confidential employees , students, casual and tem- porary employees, other employees, guards and supervi- sors as defined in the Act. In 1984, the Union filed the petition in Case 22-RC- 9300 seeking to represent the nonprofessional employees; its petition in Case 22-RC-9301 pertains to the unit of professional employees described above. On 18 October I The remainder of the Union's objections had been withdrawn prior to the hearing before me 53 1984 (all dates hereafter are for 1984 unless specified oth- erwise), arrangements were made to hold elections on 5 and 6 December among employees in those units. The first alleged unfair labor practice is alleged to have oc- curred about 6 weeks before the elections took place. In that 6-week interval, Respondent and the Union cam- paigned vigorously via leaflets and meetings. B. The Alleged Unlawful Restriction on the Distribution of Union Literature The complaint alleges, and Respondent denies, that Kathryn Connor, Respondent's administrative coordina- tor, unlawfully restricted employees with respect to the distribution of union literature during the preelection period. In support of that allegation, the General Counsel of- fered the testimony of Mary Walker as follows. She is an LPN who had a practice of punching in on the time- clock about one-half hour before her starting time. There was an occasion, about 6 weeks before the election, when she intended to use that one-half hour interval to hand out union literature in the cafeteria. On that occa- sion she greeted several employees as she walked in and placed union leaflets on a table. Respondent's administra- tive coordinator, Connor, saw her do this and said, "I can't believe this." Connor then asked Walker if she had already punched in on the timeclock. Walker responded that she had. Connor then told her that she could not hand out union literature after she had punched in. Walker protested that Connor was infringing on her rights but complied with Connor's instruction. Connor testified for Respondent as follows. The "whole problem" she had with Walker in October had to do with Walker's not having complied with Respond- ent's guidelines regarding the use of the timeclock. Re- spondent had a problem with employees who punched in their timecards 20 minutes or more before their starting times in that those employees were often not reporting for work on time. Respondent adopted a policy of re- quiring employees not to punch in prior to 10 minutes before their scheduled starting times to ensure that they would begin work on time. Sometime in October, Connor had occasion to walk into the cafeteria about one-half hour before the day shift was to begin. Walker came into the cafeteria a few minutes later. Connor asked Walker if she had punched in. Walker replied that she had. Connor then told her that she should not be punched in that early and that she has been told before about Respondent's policy on that point. Walker told her that she was infringing on her rights and then began to hand out union literature, "particularly to a dietary girl ... working at the time." Connor told Walker that she was not allowed to hand out union literature to employ- ees who were working. Walker handed a leaflet to her, Connor, and told her to read it. Connor again told Walker not to hand out union literature to "people who were working." Walker started to yell and finally left "under protest." Walker then "started to whimper" that Connors was hired as a union buster. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walker was recalled to rebut the assertions of Con- nors. In particular, she denied she handed union litera- ture to any employee who was working. Respondent called a security guard for the purpose of corroborating Connor's account. The guard related that Connors asked Walker if she had punched in and that Walker said she had. The guard observed nothing else. Respondent also called a supervisory nurse apparently in an effort to corroborate Connor's testimony about Re- spondent's rule against employees punching in too early. The supervisor's testimony on that point did not allude to any such policy. I credit Walker's account in view of the failure of Re- spondent's witnesses to corroborate Connor's account, and as it is unlikely that Respondent would have a late- ness problem with employees who come to its premises early or that Respondent , to ensure that employees begin work on time, would instruct those coming in early to punch in later. Moreover, as the General Counsel notes in the brief, Connor's version is implausible as it is incon- gruous for Walker to have accused Connor of infringing on her rights to distribute union literature before Walker handed any literature out that day . Further, and as the General Counsel also noted in the brief, Connor's testi- mony that the "whole problem" pertained to Walker's having punched in too soon is undermined by her later testimony aimed at showing that Walker was also in vio- lation of Respondent's distribution rule. Respondent, for its part, notes in its brief that Respondent's "concern over early punch-ins is not debatable" by reason of the Fair Labor Standards Act. If that be so , that assertion would add but another dimension to the matters that de- tract from the validity of Connor's account, inasmuch as she never indicated that that was her concern when she confronted Walker. C. Alleged Threat Concerning Merit Raises One issue in this case is whether one of Respondent's unit coordinators, Debra Mahoney, threatened employ- ees under her that Respondent would stop granting merit raises if the Union won the elections . It is undisputed that Respondent has a practice of reviewing employee wages each year and granting merit increases then. The issue is one of credibility. In pressing their respec- tive views on that point, all parties pointed out apparent contradictions and inaccuracies on collateral matters, i.e., about when Mahoney held the first meeting with her staff, about which meeting the subject of merit raises came up, about whether witnesses who testified on the issue were actually present when the subject of merit raises was discussed, and so on. For the reasons dis- cussed next, I find that none of the arguments, pro and con, offered by the parties are persuasive in helping to resolve the issue of exactly what Mahoney said when the subject of merit raises came up. Both the General Counsel and Respondent are in accord that Mahoney discussed the subject of merit raises at only one of the meetings she held concerning the upcoming union elections . One of the General Coun- sel's witnesses, Jan Sager, testified that that subject was brought up at the first of three meetings she attended, that that first meeting took place in mid-November, and that Mahoney then made the unlawful threat discussed below. Another of the General Counsel 's witnesses, RN Kim Pilch, testified that that meeting occurred 2 or 3 weeks before the election, that is, about mid to late No- vember. Respondent placed in evidence a report prepared by its unit coordinator, Mahoney, which reflected that she held the first meeting concerning the union election on 29 October and that Sager attended it, but not Pilch. Re- spondent then would have me discredit Sager's testimo- ny that the first meeting she attended took place in mid- November and also reject Pilch's effort to corroborate Sager's testimony. Further testimony adduced from Re- spondent's witnesses beclouded this point . Thus, Ma- honey testified that Sager and another employee, Carol Donadio, arrived so late at the first meeting that it was necessary for her to brief these two employees later what transpired at that meeting. Sager's testimony creates an additional tangential issue as she relates that the meeting for which she and Carol Donadio arrived late was the second one she attended and that it took place in late November. Further, the report prepared by Mahoney about the 29 October meeting presented its own prob- lems in that Mahoney testified she wrote in the names of the attendees whereas another of Respondent's witnesses, Gloria Dolman, testified that she herself signed the at- tendance record . It may be that Dolman signed a sheet, other than the report placed in evidence by Respondent, but I am not sure. Dolman's account throws further con- fusion on the report Mahoney prepared . Thus, according to Respondent's record, in evidence, Dolman attended only the 29 October meeting but Dolman's own testimo- ny is that she was certain she attended more than one meeting held by Mahoney on the matter of the union elections. In fact Dolman stated she attended one meet- ing at which Pilch was present; Mahoney's records indi- cate she did not. Respondent produced no further records to clarify Dolman's account or explain the ap- parent discrepancies. On the other hand, the Union, based on its analysis of the evidence concerning these collective areas, stated in its brief that the meeting at which the General Counsel's witness, Sager, arrived late with coemployee Donadio was probably the 29 October meeting. But Sager's testimony was that she and Dona- dio arrived too late for the second meeting Mahoney held and that was in late November . In sum, I find that consideration of the testimony offered on the foregoing matters collateral to the central issue concerning what Mahoney actually said respecting merit raises does not provide enough assistance to me in resolving that issue but rather introduces secondary credibility concerns which serve only to detract from it . I turn then to con- sideration of the testimony offered concerning what Ma- honey said respecting merit raises. The General Counsel called three witnesses (RN Kim Pilch, RN Elaine Zimmerman , and LPN Jan Sager) who testified that, in mid or late November, Unit Coordinator Debra Mahoney held a meeting on the fourth floor of the Perth Amboy hospital. Present then were approxi- mately 10 employees; they were aides, RNs, and LPNs either finishing the night shift or reporting for the day PERTH AMBOY HOSPITAL shift. The General Counsel's witnesses testified that Ma- honey then (1) stated that she had been asked to hold staff meetings regarding the upcoming elections, (2) talked about another union which struck a nearby hospi- tal for 2 months to get a raise of only 1 percent, (3) told employees that they could not collect unemployment benefits if they go on strike, and (4) said that, if the Union got in, the employees will no longer get merit raises. 2 According to the General Counsel's witnesses, one of the employees most active for the Union, Jan Sager, then said to Mahoney that the Union will give the employees yearly raises. The testimony of the General Counsel 's witnesses also reflected that Mahoney's comment concerning merit in- creases came to the attention of the unit employees who later voted and was upsetting to them. Respondent called Debra Mahoney as its witness re- specting the alleged threat. She testified that she held a staff meeting and used an undated "fact" sheet compar- ing Respondent's wages and benefits with those at a nearby organized hospital. On that sheet, and under the category "Merit Pay," there is a note that Respondent's program has improved each year and another note appli- cable to a unionized hospital, reading, "not available to bargaining unit employees." Mahoney testified that she discussed in general each of the 11 items listed on that sheet, including the merit pay item. She testified that when she came to the merit pay matter, she explained how Respondent's program worked, then said that at the unionized hospital, merit raises were not available but would be negotiable. Mahoney denied that she told the employees that, if the Union got in, there would be no more merit raises. Mahoney also testified that there was no other discussion at the meeting about the merit pay items. On cross-examination , Mahoney said she recalled "slightly" that she had a conversation with Sager to the effect that Sager told her that if the Union got in, the Union would give increases. I credit the accounts of the General Counsel's wit- nesses. It seems unlikely that Mahoney would have, as her account suggests, only a slight recollection of any discussion she had with Sager, a leading union activist, on the subject of merit pay and it is more likely that Sager's comments were a rejoinder to remarks of Ma- honey, as related by the General Counsel's witnesses. D. Alleged Unlawful Remarks by Respondent's President A credibility issue exists concerning whether or not Respondent's president, on 28 November, told several employees that he would not bargain in good faith with 2 Pilch testified that Mahoney said, "I hope you realize that if the Union gets in there will no longer be merit raises " Zimmerman testified that Mahoney said that if the Union got in , the employees "couldn't expect any merit raises" and Sager testified that Mahoney asked the em- ployees if they realized that "if the Union got in, there would be no more merit increases " Respondent argues in its brief that any such remark by Mahoney is protected by Sec 8(c) as a prediction , not an unlawful threat The cases cited by Respondent in support of that contention are not ap- plicable to the facts in this case I reject Respondent's view as based on sophistry and not plain meaning None of the considerations , discussed in Jamaica Touring Inc, 236 NLRB 1700 (1979), which might have placed Mahoney's remark in a different and lawful context, are present here 55 the Union if it won the election and whether or not he also made unlawful disparaging comments to one of them then. Respondent's president, Keith McLaughlin, conducted 34 meetings with separate employee groups in which he discussed the union elections. The format of those meet- ings was fairly uniform. He and other officials gave brief talks to the assembled groups and then had a question and answer session after which all adjourned to the rear of the room for coffee and informal discussion. On 28 November Respondent was conducting one of these meetings when two employees, who had just fin- ished distributing union literature outside the building, namely, Grisela Lopez and Raymond Kijoroski, walked in and sat down to listen to the opening talks. Respond- ent's president testified that he was concerned that these two off-duty employees might attempt to turn the ques- tion and answer part of the meeting into an open con- frontation; he then opted to forgo the usual question and answer session and to have coffee served immediately after the formal talks concluded. The alleged unlawful remarks of Respondent's president purportedly occurred during the informal discussions when coffee was served. The first credibility issue has to do with whether Re- spondent's president said that he would never bargain in good faith with the Union. To put the evidence concern- ing that issue in context, it should be noted that the Union had stressed in its campaign that it would aim for better wages and benefits, if it won its election, by seek- ing interest arbitration in the event of a bargaining im- passe and that it would avoid a strike. Respondent's cam- paign literature, on the other hand, pointed up how unionized employees had suffered because of strikes. During the course of the informal discussion session on 28 November, one of the prounion employees, Jan Sager, asked Respondent's president, Keith McLaughlin, why the hospital was always talking strike while the Union was talking arbitration. Sager testified that McLaughlin responded that she was daydreaming if she thought that he was going to bargain in good faith across the bargain- ing table. Grisela Lopez testified for the General Counsel that she heard McLaughlin make this remark. Raymond Ki- joroski also testified for the General Counsel and he re- lated that he heard a man at his rear make that comment but he had not observed which man said it. McLaughlin testified for Respondent as follows. Jan Sager asked him why the hospital would not agree to in- terest arbitration Before he could respond, Grisela Lopez started to answer. McLaughlin told her that she should give Sager the courtesy of allowing him to answer as the question was asked of him. He also told Lopez that if he was continuously interrupted, he "would have to dismiss her from the meeting." He then told Sager that he did not believe that the hospital would agree to interest arbitration. She asked if he was saying that he would not bargain in good faith and he replied that he was not saying that. Respondent's chief operating officer, Ronald Esser, testified that McLaughlin told Sager that the hospital 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not agree to interest arbitration and that was Re- spondent's point of view throughout its campaign. It is apparent from the testimony presented at the hearing that McLaughlin was talking to some but not all of the employees during the informal part of the meet- ing. It is also clear that Lopez, Kijoroski , and Esser were in conversation with other employees during that inter- val. This is not a matter where witnesses had been focus- ing on the remarks of one individual conducting a meet- ing. I note also that the subject of interest arbitration was referred to frequently during the Union's campaign to offset Respondent's campaign emphasis concerning the impact on employees of a strike. The question posed by Sager to McLaughlin itself evidences a sense of frustra- tion on her part, and possibly the Union's too, at Re- spondent's campaign tactics and suggests to me that she asked the question in a rhetorical manner . It seems likely that she did not expect a satisfactory response . 3 These considerations, coupled with the unlikely prospect that a knowledgeable executive such as McLaughlin would make so blatant a remark that Respondent would not bargain in good faith, weigh heavily against the General Counsel's burden of persuading me that he did utter such a remark. There are countervailing factors in the General Counsel's favor. Thus, as noted below, McLaughlin struct me as a strong personality who would be quick to voice his displeasure. Also, the General Counsel's wit- nesses stood up well against vigorous cross-examination. The first of those factors, McLaughlin's strong pesona- lity, cuts both ways however. It is not unlikely that, in his stating Respondent's position to Sager, as he recount- ed it, she was affected more by his mannerisms and that, coupled with her own predisposition to hear an answer unsatisfactory to the Union's demands, could easily have led her to interpret his remarks as a statement that he would never bargain in good faith. The tenor of the ac- counts of the General Counsel's other two witnesses sug- gests this same conclusion . In short, the totality of the evidence is insufficient to persuade me that the testimoni- al accounts of Sager, Lopez, and Kijorowski, although lucid, reflect more probably the actual comments of McLaughlin than his denial. I thus find that Respond- ent's president did not state on 28 November that Re- spondent would refuse to bargain in good faith with the Union if it won the elections. I turn now to the allegation that Respondent made un- lawful disparaging remarks. Although the resolution of this issue turns on credibility, and although the General Counsel relies on the testimony of the same witnesses (Sager, Lopez, and Kijorowski) whose accounts about what McLaughlin had earlier said were rejected, as set out in the preceding paragraph , I am not disposed to reject all the testimony offered by these witnesses simply because I have rejected their accounts about their per- ception of the impact of McLaughlin's remarks on the 3 Shortly before Sager questioned McLaughlin , she had in effect ac- cused Respondent's chief operating officer, Esser, of having made offen- sive remarks to a nurse at an earlier meeting and demanded that Esser apologize Esser told Sager that his remarks were proper and that there was no reason to apologize I note that testimony as, to some extent, it indicates that Sager was then inclined to challenge Respondent's view- points and inclined also to perceive them in the worst possible light duty of Respondent to bargain collectively on the sub- ject of interest arbitration. Moreover, nothing is more common in all kinds of judicial decisions than to believe some and not all of a witness' testimony. See Giovanni's, 259 NLRB 233, 236 fn. 7 (1981). Sager testified that after her discussion with McLaugh- lin on the subject of interest arbitration, Lopez asked McLaughlin a question and that McLaughlin then became furious, shook his head violently, and told Lopez that she was a troublemaker who did not belong at the meeting. Lopez testified as follows on that matter. She was asked by a coworker about decertification and was in the process of discussing that subject. McLaughlin then began to walk towards Lopez and told everyone to return to work. Lopez asked McLaughlin if she could finish her conversation with her coworker. In response, McLaughlin called her an agitator and a troublemaker who did not belong at that meeting. She felt that McLaughlin was going "to hit" her and she left. Kijoroski testified along the same lines as Lopez. McLaughlin testified as follows for Respondent. He was in the process of answering Sager's question about interest arbitration and Lopez interrupted. He told her to give Sager the courtesy of letting him respond, that ev- eryone else present was there on hospital time but she was not and that, if she continued to interrupt, she would have to leave. Respondent's chief operating officer, Esser, testified that Lopez interrupted McLaughlin while he was an- swering a question, that McLaughlin told her to stop in- terrupting, and that she then did stop. Esser denied that McLaughlin called her an agitator or troublemaker. Respondent called a staff nurse, Jill Lorfing, as a wit- ness. She testified that Lopez interrupted McLaughlin and he told Lopez that everyone else was there on hos- pital time but her and that if Lopez continued to inter- rupt, she would have to leave. I credit the accounts given by the General Counsel's witnesses. In doing so, I have taken into account that McLaughlin impressed me as one with a strong personal- ity, accustomed to receiving deference, and inclined to ready annoyance at having his views questioned. The very fact that he viewed Lopez' one question to him as a continued interruption betrays his temperament in that regard. I note, too, that he had been anticipating an at- tempt by Lopez and Kijoroski to convert Respondent's meeting to a Union's campaign effort. It seems clear, too, from Lorfing's account as well, that McLaughlin was an- noyed that Lopez was there on her own time while ev- eryone else was on Respondent's time. In short, it seems likely from the foregoing that McLaughlin was disposed to anger at the prospect of Lopez' exploiting Respond- ent's coffeetime with employees to use it in furtherance of the Union and that he vented that anger at Lopez. E. Alleged Unlawful Interrogation, Implied Warning, and Threat Anna Coy, a technician in Respondent's employ, testi- fied that in November the Union distributed a leaflet which listed her name as one of its supporters. Her su- PERTH AMBOY HOSPITAL pervisor, Judith Goldberg, later approached her and said she had no business to ask Coy but nonetheless Goldberg wanted to know if Coy had given the Union permission to list her name. Coy told her she did. Coy testified that Goldberg then asked her if she was not worried and that when Coy replied that she was not, Goldberg then asked her if she liked her job and that she responded that she did. Coy also testified that sometime before the election, Goldberg talked to her about her work schedule and that, in the course of doing so, Goldberg referred to the fact that Coy often had been late for work. According to Coy, Goldberg told her then that, when the Union gets in, she will be fired if she is late three times. Coy testi- fied that she had never previously been warned about her attendance record. Goldberg testified for Respondent as follows. When she saw Coy's name on the union leaflet, she was sur- prised and asked Coy if the Union had her permission to use it, to which Coy responded that the Union did. That conversation ended after she told Coy that she should be sure she knows everything about the Union before she lends it her name. Goldberg does not believe she told Coy she should be worried. Goldberg did not then solicit any grievances from Coy. Goldberg further testified that she had several conver- sations with Coy about her being "notoriously tardy." On 19 December, Goldberg informed all the employees in her department that they "better shape up." I credit Coy's testimony in all particulars as she ap- peared very candid, and because Goldberg corroborated material aspects of it and did not directly controvert other material parts.4 F. Analysis 1. Alleged unlawful restriction of the distribution of union literature The credited testimony establishes that on one morn- ing in mid-October LPN Walker was instructed not to hand out union literature after she punched in her time- card. I find that Respondent's reason for issuing such an order to be pretextual and that its real reason was to in- hibit the lawful distribution of union literature. In these circumstances, I find that Respondent's instruction to Walker was aimed solely at curtailing Walker's union ac- tivities and that it thereby interfered with, restrained, and coerced employees as to their rights under Section 7 of the Act. See Dutch Boy, Inc., 262 NLRB 406 (1982). 2. Alleged warning about merit raises Based on the credibility resolution made above con- cerning the meeting held by Debra Mahoney, a unit co- ordinator, with members of her staff, including Sager, Pilch, and Zimmerman about mid-November, I find that Respondent then informed those staff employees that if * Goldberg's testimony about a 19 December warning is not in issue Respondent would apparently have me find that that was the only warn- ing given Coy about her lateness I cannot draw such an inference in light of Coy's unrebutted testimony about the discriminatory warning given her prior to the election 57 the Union won the upcoming elections, Respondent would no longer grant merit wage increases to its em- ployees and that Respondent thereby violated Section 8(a)(1) of the Act. See Jamaican Touring Inc., 236 NLRB 1700 (1979). 3. McLaughlin's statements As I have found that the General Counsel has not sus- tained the burden of proving that McLaughlin told Sager on 28 November that Respondent would not bargain in good faith with the Union, I conclude that the complaint allegation thereon should be dismissed. The credited evidence did establish, however, that McLaughlin became angry with Lopez' talking to a co- worker on 28 November about the union election and that he called her an agitator and troublemaker in the presence of all the employees at that meeting. Respond- ent, in its brief, argues that such conduct cannot be un- lawful, citing Premier Rubber Co., 272 NLRB 486 (1984), for the proposition that it would be but a "harmless com- ment to an open and active union supporter." The Gen- eral Counsel and the Union argue, in their respective briefs, in essence, that such a remark is unlawful precise- ly because it is directed at an open and active union sup- porter, citing Champion Road Machinery, 264 NLRB 927, 929 (1982), and other cases for the proposition that the public disparagement of prounion employees as trouble- makers and agitators interferes with employees' Section 7 rights as it indicates to employees that prounion employ- ees have been placed in relatively unfavorable positions because of their support for a union. Respondent's reliance on Premier Rubber is misplaced as there the union was subjected to name-calling. The cases relied on by the General Counsel and the Union are to some extent also distinguishable as, in good part, the disparaging remarks were made in conjunction with other, obviously coercive, conduct. Nevertheless, it seems quite clear to me that a supervisor' s disparaging an employee before his peers because of that employee's support for a union is inherently coercive. To hold oth- erwise would condone abuse of managerial responsibility, would treat employees as insensitive cogs, and, most im- portantly, would undermine their personal right to have the respect of their fellow workers and their supervisors. Abuse of an employee in the form of name-calling be- cause of his support for a union is a personal affront and a serious impairment of his Section 7 rights and those of his coworkers. 4. The Goldberg-Coy discussion Having credited Coy's testimony and taking into ac- count the attendant circumstances, I find that Respond- ent unlawfully interrogated Coy in mid-October. See Ro- sehill Cemetary Assn., 275 NLRB 180 (1985); Doral Build- ing Services, 273 NLRB 454 (1984); Masters Security Serv- ices, 270 NLRB 543 (1984). The implied warning given by its chief medical technologist that Coy would suffer reprisals because of her support of the Union was also coercive. The General Counsel has alleged that Gold- berg's comments also constitute an unlawful solicitation of grievances, presumably aimed at inducing Coy to 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdraw her support from the Union. To reach that conclusion, it would be necessary to draw several pre- liminary inferences first and from those draw the one that the General Counsel contends is violative . Rather, I find that Goldberg's asking Coy if she is happy with her job is a further suggestion that she might lose it by her continued support of the Union, i.e., part of the implied warning already found, and not an unlawful solicitation of grievances. Last, the credited evidence also discloses that Re- spondent threatened Coy with stricter enforcement of its work rules because she supported the Union. Altogether then, I conclude that Respondent, by chief medical technologist, Goldberg, unlawfully interrogated Coy, impliedly warned her that she would suffer repris- als because of her support of the Union, and threatened stricter enforcement of work rules against her based on that same consideration. Respondent, however , did not solicit grievances from Coy to induce her to withdraw her support from the Union. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has committed the following unfair labor practices in violation of Section 8(a)(l) of the Act: (a) by having, through administrative coordinator, Kathryn Connor, unlawfully restricted the distribution of union literature in mid-October, 1984. (b) by having, through unit coordinator, Debra Ma- honey, warned employees in mid-November 1984 that, if the Union won the elections, Respondent would discon- tinue granting employees merit pay increases each year. (c) by having, through its president, Keith McLaugh- lin, publicly disparaged an employee because that em- ployee was a union supporter. (d) by having, through its chief medical technologist, Judith Goldberg, unlawfully interrogated an employee as to her support for the Union, impliedly warned that she would suffer reprisals because of that support, and threatened her with stricter enforcement of work rules to discourage her support for the Union. 4. Respondent did not, as alleged in the complaint, state that it would not bargain in good faith with the Union if it won the elections or unlawfully solicit griev- ances to induce employees to withdraw support from the Union and, consequently, the complaint allegations there- on are without merit. 5. The unfair labor practices found in paragraph 3 above affect commerce within the meaning of Section 2(6) and (7) of the Act. III. THE REPRESENTATION CASES The objections filed by the Union parallel the unfair labor practices alleged in the complaint. Based on the findings and conclusions above , those objections which track the unfair labor pactices found above, have merit; the remainder do not. The critical issue is whether or not the results of the elections should be set aside by reasons of there being merit in certain of the Union's objections. Briefly, it has been found that an LPN, Walker, was informed that she could not distribute union leaflets as long as she had punched in her timecard . That limitation turned out to have no serious impact on her ability to distribute union literature as she acknowledged that, sub- sequently, she simply waited until after she distributed the literature before she punched in. It was found that in one brief talk, a low-level supervi- sor, Unit Coordinator Mahoney, construed a campaign chart to indicate that Respondent would no longer grant merit raises if the employees voted for the Union. It ap- pears, too, that that statement was disseminated by word of mouth to other unit employees . In context however, Mahoney's aberrant remark on that one occasion has to be considered against the backdrop of an aggressive cam- paign by both sides and in the context of Respondent having conducted 34 employee meetings with its top of- ficials who invited questions to resolve any concern. It would seem that, if the issue of merit raises reached a level of significance to have affected the results of the elections, that issue would have been raised and resolved at the highest management level during any of these 34 meetings. It appears that that issue was never so raised. Even the employee (Sager) who had testified to Mahon- ey's remark, did not testify that she confronted McLaughlin with it, although she readily confronted him on other points. Lastly, the Goldberg-Coy discussions were one-on-one conversations and do not appear to have had any real impact on the overall election process, particularly in view of the large sizes of the respective units. I therefore conclude that it will not effectuate the poli- cies of the Act to set aside the results of the election and to conduct rerun elections. Cf. Metz Metallurgical Corp., 270 NLRB 889 (1984). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, Raritan Bay Medical Center a/k/a Perth Amboy General Hospital and Old Bridge Regional Hospital, Perth Amboy and Old Bridge, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully interrogating employees concerning their support for District 65, United Automobile, Aero- space & Agricultural Implement Workers of America, AFL-CIO. (b) Warning them that they would no longer receive merit raises if the Union was selected to represent them. 3 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses PERTH AMBOY HOSPITAL (c) Holding employees up to public ridicule by making disparaging comments to them because of their support for the Union. (d) Impliedly warning employees that they would suffer reprisals because of their support for the Union. (e) Threatening stricter enforcement of work rules to discourage support for the Union. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its hospitals in Perth Amboy and Old Bridge, New Jersey, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found above. IT IS FURTHER ORDERED that, notwithstanding that those objections to the conduct of the elections, which 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 59 parallel the unfair labor practices found herein, have merit, certifications of results should issue in both repre- sentation cases that the Union has not received a majori- ty of the valid votes cast in either unit. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT unlawfully interrogate our employees about their support for District 65, United Automobile, Aerospace & Agricultural Implement Workers of Amer- ica, AFL-CIO. WE WILL NOT unlawfully restrict employees in distrib- uting campaign material for the Union. WE WILL NOT hold employees up to public ridicule by making disparaging remarks about them because they support the Union. WE WILL NOT warn employees that they will suffer re- prisals because of their support for the Union. WE WILL NOT threaten employees with stricter en- forcement of work rules in order to discourage their sup- port for the Union. WE WILL NOT in any related manner interfere with, re- strain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. RARITAN BAY MEDICAL CENTER A/K/A PERTH AMBOY GENERAL HOSPITAL AND OLD BRIDGE REGIONAL HOSPITAL