Dominguez Valley Hospital

DOMINGUEZ VALLEY HOSPITAL National Medical Hospital of Compton, d/b/a Do- minguez Valley Hospital and Hospital and Service Employees Union, Local 399, Service Employes International Union, AFL-CIO. Case 21-CA-22431 15 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 8 November 1984 Administrative Law Judge James M. Kennedy issued the attached decision. The Respondent filed exceptions and a supporting brief and a motion to reopen the record. 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 , brief, and motion and has decided to affirm the judge's rulings, find- ings,' and conclusions and to adopt the recom- mended Order as modified.2 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. We grant the Respondent's unopposed exception and correct the tran- script on p. 189, L. 5 to read "way" instead of "day" and on p. 67, L. 21, to read that "Cathy said" instead of "Jan said." We also correct the following inadvertent errors of the judge: (1) in sec. III,A, par. 1, the Board's Decision on Review and Certification of Respresentative is miscited. The correct citation is 251 NLRB 842; (2) in sec. III,A, par. 2, the Supreme Court citation to Lamar Hotel should be corrected to read 379 U.S 817; (3) in sec. III,B, par. 1, the sentence "The parties did not actually begin to negotiate until September 13, 1982, 4 months after entry of the Court 's order" is corrected to reflect that nego- tiations commenced 3 months after entry of the 14 June 1982 court order; (4) in sec. III,D, par. 3, the sentence "Since 1973 there have only been approximately 10 employees interviewed: nine were hired," is corrected to reflect that since 1973 10 employees were hired in Ruiz' department, 9 of whom Ruiz recommended for hire; (5) in the same paragraph, the statement that "the only employee who has been fired during her tenure" is corrected to reflect that Ruiz testified about 2 employees discharged during her tenure, (6) in sec. III,D, par. 8, the sentence "Her title is cleri- cal supervisor of the emergency room" is corrected to reflect that Dan- iels held the position of emergency room clerical supervisor from her hire in 1980 until December 1983; (7) in sec . III,D, par. 12, the sentence beginning "Ruiz agrees that she circulated one [petition]" is corrected to reflect that Ruiz circulated two petitions; (8) in sec. III,D, par. 14, the sentence "She says Daniels told her it looked as if the union negotiations were coming to a conclusion" is corrected to reflect that Daniels told Motts that the Union was trying to come in; and (9 ) in sec. 11I,E, par. 7, the sentence beginning "On another occasion Daniels demanded that Motts and McLinden repay some money ..." is corrected to reflect that Motu and Josie were ordered by Daniels to repay the money. These matters do not affect the outcome of this case. 2 Contrary to the judge, we find that a narrow cease -and-desist order is appropriate because the Respondent has not been shown to have a pro- clivity to violate the Act or a general disregard for employees' funda- mental statutory rights. See H,ckmott Foods, 242 NLRB 1357 (1979). Ac- cordingly, we have modified the Order and notice. 149 1. The judge found, and we agree, that the certi- fication year commenced on 13 September 1982 when good-faith negotiations began, and that the Respondent violated Section 8(a)(5) and (1) of the Act by prematurely withdrawing recognition from the Union on 12 July 1983 and by refusing to bar- gain with the Union at all times thereafter. For the reasons set out below, we reject the Re- spondent's argument that the certification year should be deemed to have commenced prior to the first formal bargaining session-either on the issu- ance date of the court of appeals' decision enforc- ing the order requiring the Respondent to bargain with the Union (14 June 1982) or on the date on which the parties first agreed to bargain (which the Respondent alleges was 25 June 1982). In order to assure a reasonable time for bargain- ing "without outside interference or pressure," the Board has held that "absent unusual circumstances, an employer will be required to honor a certifica- tion for a period of 1 year." Mar-Jac Poultry Co., 136 NLRB 785, 786 (1962) (footnote omitted). As the Board there held, when an employer has, during part or all of the year immediately follow- ing the certification, refused to bargain with the elected employee representative and thereby "taken from the Union" the opportunity to bargain during "the period when Unions are generally at their greatest strength," the Board will take measures to assure a period of at least a year of good-faith bar- gaining during which the bargaining representative need not fend off claims that it has lost its majority support. 3 Acceptance of the Respondent's argument that the certification year should run from the date on which the court of appeals enforced the bargaining order or on the date on which the parties first make some agreement to meet for bargaining would not assure the year of postcertification insu- lated good-faith bargaining to which a collective- bargaining representative is entitled . It is true, as the Respondent contends, that a judge's decision adopted in Parkview Nursing Center II Corp., 260 NLRB 243, 253 fn. 16 (1982), stated that in that case "the certification year would only begin to run from the date of the U.S. Court of Appeals de- cision" enforcing the bargaining order based on the certification. That same footnote stated , however, ® In Mar-Jac, there had been no bargaining for nearly 9 months after the November 1959 certification. An 8(aX5) charge was filed during this period and a settlement agreement reached in August 1960, under which the parties agreed to bargain. Bargaining commenced, but the employer ceased attending negotiating sessions in February 1961, and it filed an RM petition in March. Although the petition was filed more than a year after the union's certification, the Board dismissed it on the ground that the union was entitled to "at least 1 year of actual bargaining from the date of the settlement agreement." Id. at 787. 287 NLRB No. 18 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that this was the contention of the General Coun- sel, and it is not clear that the point was even con- tested. Furthermore, the judge also noted that the union continued to enjoy majority status even beyond the period of a year from the court of ap- peals' decision because the employer's continuing unremedied unfair labor practices would preclude reliance on employee sentiment against the union. Ibid. Hence, the order would have been the same in that case regardless of when the certification year was deemed to begin, so the statement is dictum. The Board precedents that properly con- trol the issue here are decisions such as San Antonio Portland Cement Co., 277 NLRB 309, 311 (1985), and Groendyke Transport, 205 NLRB 244 (1973), in which the certification year was held to run from the date of the parties' first bargaining 'session. See also Colfor, Inc., 282 NLRB 1173 (1987) (1-year period commences on date on which respondent furnished previously requested information). The dictum in Parkview on which the Respondent relies clearly could not overrule the earlier holding in Groendyke Transport. Of course, if there is a significant delay in the commencement of bargaining attributable to inex- cusable procrastination or other manifestations of bad faith on the part of the bargaining representa- tive, equating the commencement of the certifica- tion year with the first bargaining session would not be warranted. Even considering the evidence proffered by the Respondent with respect to the parties' agreement on the date of the first bargain- ing session, however, we see no evidence of such bad faith here.4 The proffered documents indicate that the Union promptly requested bargaining after the court of appeals enforced the Board's order, that the Respondent replied about a week later identifying its negotiator, and that approximately a month then went by before the Union requested proposed bargaining dates from the Respondent's negotiator. In view of the fact, however, that the election on which the certification was based had been held in August 1979, nearly 3 years earlier, some time can reasonably be allowed for the Union to reestablish contacts with the unit employees to facilitate bargaining on their behalf. Furthermore, after the Union informed the Respondent on 30 July 1982 that its negotiator would be on vacation until 16 August, it was the Respondent's represent- ative who suggested postponing bargaining until after Labor Day because of his own conflicting commitments. Hence, on the facts of this case, we see no reason to depart from our usual rule for 4 We grant the Respondent's unopposed motion to reopen and assume, for the purposes of our decision, the accuracy of the documents prof- fered measuring the certification year after an employer's initial refusal to bargain, and we find that the 1- year bargaining period commenced here on 13 Sep- tember 1982, the date of the first bargaining ses- sion. 2. We also agree with the judge that Ruth Dan- iels is a supervisor and that the Respondent violat- ed Section 8(a)(1) when Supervisor Daniels solicit- ed unit employees to sign "dissatisfaction" petitions seeking to oust the Union as the exclusive bargain- ing representative, coerced an employee into wear- ing a "No on 399" button and signing a "dissatis- faction" petition, and threatened employees with discharge if they supported the Union. We agree with the judge that, for purposes of this case, it is unnecessary to resolve a credibility dispute con- cerning whether the parties agreed to include Su- pervisor Daniels in the bargaining unit on 23 June 1983. Assuming that an agreement was made, as the Respondent contends, we nonetheless agree with the judge that the Respondent violated Sec- tion 8(a)(1) by Daniels' conduct. Cf. Montgomery Ward, 115 NLRB 645, 647 (1956), enfd. 242 F.2d 497 (2d Cir. 1957), cert. denied 355 U.S. 829 (1957). Thus, while Montgomery Ward and its prog- eny set forth the principle that when a supervisor has been included in the bargaining unit by agree- ment of the parties, an employer will not be held liable for its supervisor's 8(a)(1) conduct, absent evidence that the employer "encouraged, author- ized or ratified the supervisor's activities or acted in such manner as to lead employees reasonably to believe that the supervisor was acting on behalf of management." This principle is founded on the premise that fellow employees will regard the su- pervisor as a fellow employee, rather than an arm of management, and will not be coerced or intimi- dated by the supervisor's alleged 8(a)(1) conduct. Under the facts here, however, we conclude that employees could not reasonably have perceived Daniels as a peer, rather than as an arm of manage- ment. Thus, Daniels had been a supervisor for the approximately 3-year period since her hire and, as recently as June 1983, informed employees that she could not participate in efforts to oust the Union inasmuch as she was not "union eligible." And, while the Respondent informed an upset Daniels on 23 June 1983 that she had just been included in the unit, it does not appear that unit employees were informed of this inclusion. Instead, the evi- dence demonstrates that, in the final 3-week period before the Respondent's withdrawal of recognition, Daniels circulated "dissatisfaction" petitions among unit employees and coerced and threatened that employees would be discharged for supporting the Union. Under these circumstances, we agree with DOMINGUEZ VALLEY HOSPITAL 151 the judge that unit employees could not have re- garded Daniels "as one of themselves," as contem- plated in Montgomery Ward. 3. We disagree with the judge, for the reason set forth in the amended remedy section, however, that extending the bargaining order for an addition- al 1-year period is appropriate.5 AMENDED REMEDY 1 Delete paragraph 1(b) and reletter the subse- quent paragraphs. 2. Substitute the following for paragraph 1(d). "(d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 3. Substitute the attached notice for that of the administrative law judge. The judge concluded that the Respondent's pre- mature withdrawal of recognition from the Union and subsequent refusal to bargain warranted a 1- year extension of the certification year. Contrary to the judge, we find no basis for a complete renewal of the certification year or for requiring the Re- spondent to bargain for another full year. Thus, the Respondent bargained with the Union in apparent good faith for almost 10 months before its prema- ture withdrawal of recognition-a significant con- sideration when fashioning an appropriate remedy. Contrary to the Respondent's contention, however, this substantial period of good-faith bargaining does not warrant limiting the Respondent's bargaining obligation to the remaining 2 months of the certifi- cation year. Instead, given the disruptive effect that the Respondent's premature withdrawal of recogni- tion has had on the bargaining process, we con- clude that a 6-month extension of the bargaining year is appropriate. As the Board held under com- parable facts in Colfor, Inc., 282 NLRB 1173 (1987), such a 6-month extension will provide the parties with a reasonable interval in which to resume negotiations and, possibly, reach an agree- ment, without unduly saddling employees with a bargaining representative they may no longer sup- port. Thus, we shall extend the certification year for an additional 6 months. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, National Medical Hospital of Compton, d/b/a Dominguez Valley Hospital, Compton, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 5 In view of our finding that the Respondent unlawfully withdrew rec- ognition from the Union, we find it unnecessary to pass on the judge's conclusion that the "dissatisfaction" petitions were tainted by Supervisor Daniels' participation in their urculation or that the Respondent's reli- ance on the tainted petitions as its sole basis for withdrawing recognition additionally violated Sec 8(a)(5) and (I) Similarly, inasmuch as it would not affect the remedy, we find it un- necessary to decide whether Rebecca Ruiz was a supervisor or, concomi- tantly, whether her circulation of the petitions violated Sec 8(a)(I) 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 ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interfere with, restrain, or coerce our employees by soliciting them to sign petitions to oust Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO as their collective-bargaining represent- ative or by threatening them with loss of employ- ment if they choose to support that Union by pick- eting or by refusing to wear antiunion buttons. WE WILL NOT refuse to bargain in good faith with Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL- CIO by withdrawing recognition at a time when we were not lawfully permitted to do so. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO as the exclusive collective-bargaining representative of our employees in the bargaining unit described below. 152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL regard the Union as the exclusive bar- gaining agent as if the initial year of certification has been extended for an additional 6 months from the commencement of bargaining pursuant to the Board's Order in this case. If an understanding is reached WE WILL embody it in a written, signed agreement. The bargaining unit is: All of our employees, including all engineering and maintenance department employees, em- ployed at our facility located at 3100 South Susana Road, Compton, California; excluding professional employees, confidential employ- ees, guards and supervisors as defined in the Act. NATIONAL MEDICAL HOSPITAL OF COMPTON, D/B/A DOMINGUEZ VALLEY HOSPTIAL FINDINGS OF FACT I RESPONDENT'S BUSINESS Respondent admits that at all times material it has been a Neveda corporation operating an acute care hospital in Compton, California, and during the past 12 months-its gross receipts exceeded $250,000 and it purchased and received goods originating outside California valued in excess of $5000. Accordingly, it further admits, and I find, that Respondent is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits that the Union, at all times materi- al, has been a labor organization within the meaning of Section 2(5) of the Act and I so find III THE ALLEGED UNFAIR LABOR PRACTICES William J. McCauley, Esq. and Lana H. Parke, Esq., for the General Counsel. Naomi Young, Esq. (Littler, Mendelson, Fastiff & Tichy), of Los Angeles, California, for the Respondent Helena S. Wise, Esq. (Geffner & Satzman), of Los Ange- les, California, for the Charging Party. DECISION JAMES M. KENNEDY, Administrative Law Judge. This case was tried before me at Los Angeles, California, on June 25-26, 1984, pursuant to a complaint issued by the Regional Director for Region 21 on December 2, 1983,1 which is based on an original charge filed on July 25 and amended on July 29 by Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO (the Union) The complaint alleges that National Medical Hospital of Compton, d/b/a Do- minguez Valley Hospital (Respondent) has engaged in certain violations of Section 8(a)(1) and (5) of the Na- tional Labor Relations Act (the Act) The principal issues are whether Respondent, at least in part, sponsored a petition aimed at ousting the Union as the collective-bargaining representative of certain of its employees Connected to that issue are subsidiary questions of the supervisory status of two individuals and whether those individuals committed independent viola- tions of Section 8(a)(1) of the Act. The second issue is whether Respondent could lawfully withdraw recogni- tion of the Union on or after July 6. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. The General Counsel and Respondent have filed briefs and they have been carefully considered. Based on the entire record, as well as my observation of the witnesses and their demeanor, I make the follow- ing I Unless otherwise indicated all dates herein are 1983 A Background On August 27, 1980, after a representation election, the Board, in its Decision on Review and Certification of Representative, certified the Union as the exclusive col- lective-bargaining representative of Respondent's em- ployees in an appropriate unit 2 (251 NLRB 842) The Board, in that decision, declined to sustain certain objec- tions to the election filed by Respondent. To seek review of the Board's action Respondent refused to bargain with the Union. This resulted in an 8(a)(5) and (1) complaint followed by summary judgment proceedings before the Board. The Board in those proceedings summarily or- dered Respondent to bargain.3 Thereafter, the Board sought enforcement of its order by the United States Court of Appeals for the Ninth Circuit. On June 14, 1982,,in an unreported decision, a panel of that court en- forced the Board's order without significant discussion only 3 days after oral argument The Board's decision, that the court enforced, con- tained standard language extending the certification year saying. "[W]e shall construe the initial period of certifi- cation as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit See Mar-Jac Poultry Company, 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F 2d 57 (10th Cir. 1965)." 257 NLRB at 645 (1981). 2 The unit that was found to be appropriate by the Regional Director in his 1979 Decision and Direction of Election is All employees of the Employer including all engineering and mainte- nance department employees, employed at its facility located at 3100 South Susana Road, Compton, California, excluding professional em- ployees, confidential employees, guards and supervisors as defined in the Act 257 NLRB 643 (1981) DOMINGUEZ VALLEY HOSPITAL 153 B The Withdrawal of Recognition The parties did not actually begin to negotiate until September 13, 1982, 4 months after entry of the court's judgment The last negotiation meeting was conducted on July 6, 1983 A meeting that had been scheduled for July 13 was canceled by Respondent's chief negotiator, Attorney Richard Thesing, shortly before it was to have been held In its answer Respondent admits that on July 12 it withdrew recognition from the Union as the exclu- sive bargaining representative of its employees in the unit described in footnote 2 It further admits that since that date it has refused and failed to bargain with the Union as the representative of those employees Its action is based on a claim that the Union no longer represented a majority of its employees as evidenced by a petition sub- mitted to it by an employee C. The Antiunion Petition Beginning in June a clerical employee assigned to the engineering department, Susan Cornea, initiated a peti- tion designed to oust the Union She testified that she ob- tained information regarding such action from some offi- cials at a nearby hospital, Paramount General. She also mentioned the matter to her supervisor, the chief engi- neer She says the day after she did so Hospital Director Thomas Hennessy brought her a letter drafted by Thes- ing that described the means by which employees could get rid of Local 399 as their bargaining representative The letter is dated June 8 The letter itself is addressed to Hennessy purporting to transmit information to Hennessy that he in turn could provide to any employee who sought information re- garding the lawful means to oust an incumbent union It suggests that if 50 percent of the employees signed a pe- tition stating they did not wish to be represented by Local 399, the presentation of such a petition to manage- ment would "enable the hospital to withdraw recogni- tion from the Union and thereby become `nonunion "' It advised Hennessy that the circulation of such a petition should be free of employer involvement, and also warned against circulating it either in the presence of su- pervisors or during times when employees were perform- ing their normal work tasks D The Alleged Supervisory Involvement The complaint asserts that two of the Hospital's super- visors circulated Cornea's petition and thus the petition is invalid as having been tainted by supervisory solicita- tion. The two individuals involved are Rebecca Ruiz, the assistant director of food service, and Alicia Daniels, the emergency room clerical supervisor. Their authority was elicited through their testimony and some job description documents describing their duties. 1. Ruiz Ruiz was hired in 1973 as the assistant director of food service. She purchases the food products and oversees the cooks, salad workers, cafeteria tray workers, utility workers, dishwashers, potwashers, and certain mainte- nance employees She makes out work schedules for 21 employees and oversees the training of new hires. She reviews and initials employee timecards that are also countersigned by the director of food service Unlike the hourly-paid employees she oversees, she is salaried. She can require employees to work overtime She rarely per- forms work on the line, and then only to help out during extremely busy periods Furthermore, she participates in the interviewing of job applicants. These interviews are usually conducted by the food director and although Ruiz is usually present, she has not taken an active role Since 1973 there have only been approximately 10 employees inter- viewed, 9 were hired In addition, when employees seek permission to take time off, they present their requests to her She has the authority to grant or deny them She said she does not believe she has the authority to fire an employee and the only employee who has been fired during her tenure was involved in a fight that occurred in the presence of both her and the food director Although she testified that she does not believe she has the authority to suspend em- ployees, her affidavit asserts that she thinks she does She prepares and gives out written warnings, although at her superior's direction. Ruiz' job description is not significantly different but it clearly explicates that in the absence of the food service director she is to replace him and assume his duties and responsibilities Furthermore, it says, she only receives "general super- vision" from the director Obviously, daily decisions are left to her. She testified that there have been two repre- sentation elections in which she voted. In the first, an election that was subsequently set aside, she voted a challenged ballot Later, in the second election, that pre- ceded the instant certification, she voted without chal- lenge . Despite the fact that she voted without challenge, it appears to me that the duties that she performs require me to conclude that she is a statutory supervisor In this regard I note that Respondent has salaried her and does not treat her as a rank-and-file employee. She substitutes for the director and has some involvement in the discipli- nary process She testified that her involvement is simply clerical, but her drafting warnings and handing them to the employee subsequent to the director's signature dem- onstrates that employees are more likely to view her as a supervisor than as a fellow employee Furthermore, she has the power to require employees to work overtime and can commit management's funds for that purpose. Her scheduling duties and her participation in the hiring process also lead me to conclude that she is a 2(11) su- pervisor as alleged, and I so find. 2 Daniels Daniels was hired in 1980 well after the representation election was conducted. Her title is clerical supervisor of the emergency room. The job did not exist when the election was conducted. Daniels testified that she has seven employees under her direction. She is paid ap- proximately $1 more per hour than any of them. She was the individual to whom the employees came for permis- sion to take personal time off She could grant or deny 154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD such time off without checking with anyone and inde- pendently evaluated the reason given for the request. She also decided whether absences were excused or unex- cused. She claims that she did not issue reprimands, yet she normally signs and issues written warnings albeit in the presence of her supervisor. The warnings themselves remain in the employee's personnel file and at least one of those warnings has brought about the discharge of an employee. That occurred because the warning caused the employee to exceed the trigger mechanism for discharge, not because the warning actually recommended the em- ployee be discharged Daniels also testified that she interviews job candidates and makes recommendations with respect to their hire. According to her, her supervisor (of which there were two during this period) followed six of her eight recom- mendations She minimized the nature of the recommen- dations, however, saying that the ultimate decision to hire was made independently by the supervisor, not by her. In addition, she also trained employees after their hire; later that duty was delegated to an experienced em- ployee Like Ruiz, Daniels signed employees' timecards, they, too, were countersigned by her superior. In addition, she wrote employee evaluations and signed them. The writ- ten evaluations concededly determined whether the em- ployee involved received merit pay increases. Moreover, like Ruiz, she scheduled her seven employees and deter- mined whether those employees would be required over- time to be paid, she had the authority to authorize it. This occurred even if she were not present in the hospi- tal as the clericals on duty would call her at home to advise her of the problem. She would make the neces- sary decision at that time. Accordingly, I conclude that Daniels, too, was a statu- tory supervisor within the meaning of Section 2(11) of the Act. Like Ruiz, she exercised significant independent judgment with respect to scheduling and overtime as well as pay raises and discipline. She rarely consulted her immediate supervisor, the emergency room supervi- sory nurse, and attempted to distance herself from her employees. Moreover, her role in the hiring process was not insignificant.4 3. Ruiz and Daniels circulate petitions Both Ruiz and Daniels admittedly involved themselves in circulating Corriea's petition forms. Ruiz agrees that she circulated one and solicited signatures in her depart- ment and the business office. She also spoke to several ward clerks In addition, she wore a "No on 399" button. Beginning in June 1983 after Hennessy had told her she was "union eligible" Daniels began circulating one of Corriea's petitions. She testified that most of her employ- ees refused to sign. She admits, however, soliciting in the emergency room, the admitting department, and the X- ray department. Daniels also wore a "No on 399" button. Camille Motts, an emergency room clerk who worked for Daniels, testified that she had four conversations with Daniels regarding the Union. She was a little uncertain of the dates but testified that the first occurred one day in June while she was at work. She says Daniels asked her to the employee lounge. After they arrived Daniels locked the door to assure privacy She says Daniels told her it looked as if the union negotiations were coming to a conclusion. She told Motts the Union was principally controlled by dietary and housekeeping employees and asked Motts if she wished to be subject to people such as that, asserting that the emergency room employees were a "better class of people " Daniels also told Motts that the Union would take $300 from her paycheck in initi- ation fees as well as monthly dues. After obtaining Motts' concurrence that such an event was undesirable, Daniels suggested that Motts seek out Corriea to sign her petition Shortly thereafter Motts did so However, Cor- riea told her that she should sign one which Daniels would shortly have.5 According to Motts, the second meeting occurred a week later. She says it took place in the emergency room where Daniels asked her and two others to sign, so she did. Motts remembers Daniels telling her afterwards that she was "proud of us." Daniels then asked Motts if she would ask a radiology technician named Stella to sign. Motts declined. Motts also testified that she saw Daniels give the petition form to fellow emergency room clerk David Brillhart. Motts does not know whether it was given to Brillhart to sign or for Brillhart to circulate. E. Daniels' Alleged Coercive Conduct The complaint alleges that during the first part of July Daniels "pressured employees to wear anti-union but- tons" and also told employees that Respondent would discharge employees who changed their minds about ousting the Union or who walked a picket line. In support of this allegation the General Counsel relies on Motts' testimony The allegedly unlawful incidents occurred during the third and fourth meetings that Dan- iels had with Motts. Motts testified that shortly before Daniels went on vacation (again Motts is unclear of the time frame), Daniels simply told Motts that she had some buttons that she was going to leave with coworker Col- leen McLinden that she wanted both to wear. According to Motts, Daniels said she would "appreciate it if we wore them to let the other people know that we were against the union." Later McLinden gave Motts a button but she declined to wear it. Shortly thereafter, according to Motts, Daniels asked both her and McLinden to meet with her in the lounge. According to Motts, Daniels told them that if anyone changed her mind about the Union (that is, deciding to 4 There is conflicting testimony between Respondent's negotiator Thesing and the Union's negotiator Eliaser regarding an agreement to in- clude Daniels and Ruiz in the bargaining unit That supposedly occurred shortly before Respondent withdrew recognition Thesing says it did, Ehaser says it did not As will be seen it is not necessary to resolve the conflict 5 In an'msignificant testimonial divergence, Cornea testified that Motts approached her at a time when she was supposed to be working and that accordingly she declined Motts' proffered signature She does not re- member telling Motts that Daniels would shortly have her own petition to sign DOMINGUEZ VALLEY HOSPITAL 155 keep the Union) or if anyone decided to walk a picket line, Hennessy had told her they would be fired. Daniels denies most of Motts' testimony She does admit giving Motts the petition to sign in the emergency room but says she only told Motts the history of how the Union had become the employees' representative before either of them had been hired by the hospital She denies telling Motts that the emergency room employees were a better class of people than anyone else. Daniels also denies that Hennessy ever told her employees would be fired if they changed their mind about the Union or walked a picket line. Finally, she denies that she ever told such things to Motts. Daniels does admit, however, that after Motts signed her petition she gave it to Brill- hart, asking him to solicit employees Brillhart did not testify and there is no showing of exactly how many, if any, signatures he obtained Respondent called McLinden to corroborate Daniels. She was asked if she had participated in a conversation with Motts and Daniels during which Daniels discussed employees being fired for walking a picket line. McLin- den denies such a conversation occurred. She further denies that she was ever involved in a conversation where Daniels said anything to the effect that if employ- ees disavowed the petition after they had signed it, they would be discharged McLinden says the only conversations she had with Daniels regarding antiunion buttons were commenced by her. The first occurred, she says, after she observed Cor- riea wearing such a button. On the following day she asked Daniels about it, but Daniels declined to comment saying she was "nonunion eligible " A few days later McLinden says she and Daniels were having a break in the emergency room lounge when Hospital Administra- tor Hennessy arrived and told Daniels she was "about 30 minutes away from being union eligible." On the follow- ing day, according to McLinden, she learned Daniels had become "union eligible" so she asked Daniels for a button and received two, one for her and one for Brill- hart. She denies that she gave a button to Motts. Finally, McLinden testified that Motts did not have a good reputation for truth and veracity at the hospital. She admits, however, that she did not like Motts. It is also true that Motts may harbor a bias against both Re- spondent and/or Daniels On one occasion, several months before, Motts had been admitted to the hospital for some elective surgery For some reason, perhaps her own neglect, she failed to notify Daniels of her intention After the surgery, Motts had two separate conversations with her immediate line of supervision First, Emergency Room Supervisory Nurse Alice Thompson told Motts in the recovery room that she would probably get fired be- cause she should have scheduled her surgery for a differ- ent time As Motts was being transferred fr m the recov- ery room to her own room Daniels arrived and repeated that the surgery should have been performed at a later date Daniels then told Motts that if she thought the work had been hard before the surgery just wait until Motts got back because they were going to look for a reason to get rid of her Subsequently, in July 1983 Motts was, in fact, discharged On another occasion Daniels demanded that Motts and McLinden repay some money that had disappeared from the emergency room desk Motts thought the requirement was unfair. I have carefully scrutinized Motts' testimony, and al- though I agree that the potential for mischaracterization based on bias is there, I am unable to find it Indeed, in viewing her 'testimony against that of Daniels and McLinden I find Motts' to be more credible. Daniels ap- pears to have a bias of her own, a knee-jerk reaction against unionization. McLinden appears to have a per- sonal loyalty to Daniels Both Daniels and McLinden, on the basis of demeanor, seem to be governed by an inten- tion to testify for a result rather than to testify straight- forwardly Moreover, if Motts is credited with respect to the threat of discharge, McLinden might well have been influenced by the threat to testify consistently with Dan- iels The issue is not free from doubt, but on balance I believe Motts over the other two. Accordingly, Motts testified to the effect that Daniels told her she might be discharged in the event that she changed her mind about ousting the Union or if she joined the Union on a picket line Indeed, the threat ap- pears to have been engendered by Motts' decision no to wear the antiunion button IV ANALYSIS AND CONCLUSIONS Under Board's order in the initial refusal to bargain case, Dominguez Valley Hospital, 257 NLRB 643 (1981), as enforced by Ninth Circuit's Order of June 14, 1982, the certification year did not begin to run until Septem- ber 13, 1982, when the parties ^ commenced bargaining. This is the direct result of the standard certification ex- tension language appearing in the case requiring that par- ties after a representation election be obligated to bargain without challenge for 12 months The reason behind the rule is obvious. It requires the parties to engage in bar- gaining free from outside interference, such as rival peti- tions. It prohibits both labor organizations and dissidents from disrupting the bargaining process by raising ques- tions concerning representation, thereby distracting the parties, from their legal mandate to bargain Furthermore, it keeps the parties at the bargaining table long enough to maximize the opportunities for an agreement. Chal- lenges to majority status during that period are looked on with disfavor.6 Bargaining is not a simple process and cannot always be conducted quickly. This is particularly true in the health care industry and any industry where there is a large number of people performing a multiplicity of jobs. The rule is, therefore, one of the cornerstones of our na- tional labor policy I am obligated to implement that policy. Thus, I find that Respondent was not priviledged to withdraw recognition of the Union on July 12, 1983. The certification year still had approximately 2 months to run and Respondent's withdrawal of recognition prior to the year's anniversary of the commencement of bar- gaining was totally unprivileged, for the presumption of majority status during the certification year is virtually unrebuttable Ray Brooks v. NLRB, 348 U.S 96 (1954). 6 Cocker Saw Co, 186 NLRB 893 (1970), enfd 446 F 2d 870 (2d Cir 1971) 156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In addition, I find that the involvement of the two su- pervisors, Ruiz and Daniels, in soliciting signatures for Corriea's petition also violated Section 8(a)(1) and (5) of the Act. I recognize that it is possible that both individ- uals may have been absorbed into the bargaining unit as modified during bargaining between negotiators Eliaser and Thesing. It is nonetheless unnecessary to resolve the credibility dispute between the two for it is clear that Ruiz and Daniels would be privileged as bargaining unit members to pursue decertification procedures only if they could be preceived by other bargaining unit mem- bers as simply fellow employees.? That would occur only after long-time membership in the bargaining unit. Certainly Daniels had not been in the bargaining unit long enough for that perception to have occurred. She began her antiunion circulation only hours after Hennes- sy told her she was "union eligible." With respect to Ruiz it is true that she had been a voter some years before, but because of the hiatus in bargaining she cannot be perceived as simply a fellow employee. The Mont- gomery Ward considerations, therefore, do not apply." Accordingly, I conclude that the involvement of both Ruiz and Daniels in the circulation of Corriea's antiunion petition was violative of the Act. The solicitation violat- ed Section 8(a)(1) as it had the necessary tendency, in order to avoid their supervisors ' disapproval, to intimi- date and coerce those employees into signing the peti- tion. That process, of course, casts doubt on the validity of the petition itself. Furthermore, the conduct becomes a simple effort by members of management to undermine the Union's majority status and thus is a violation of Sec- tion 8(a)(5) of the Act as well, for it would have a direct impact on the bargaining process. Finally, I have already discussed the factual nature of Daniels' conversations with Motts and have concluded that Motts' version should be credited. In view of the fact that Daniels coerced Motts into signing the petition by both her supervisory solicitation and some doubtful factual assertions with respect to who controlled the Union and what the fees and dues would be, I conclude that such conduct also violated Section 8(a)(1). Similarly, Daniels' later threat to Motts telling her that she would be discharged if she changed her mind about ousting the Union or chose to walk a picket line in support of it also violated Section 8(a)(1). Finally, Daniels' request that Motts wear the "No on 399" button had a clear coercive purpose and effect. It, too, violated Section 8 (a)(1). V. THE REMEDY Having found that Respondent has engaged in certain violations of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist there- from and to take certain affirmative action necessary to effectuate the policies of the Act. In this regard I shall recommend that the certification year be extended for an additional 12 months and that the parties be obligated to ° See Montgomery Ward, 115 NLRB 645, 647 (1956), enfd 242 F 2d 497 (2d Cir. 1957), cert denied 355 U S 829 (1957) 8 To the extent that Arcadia Foods, 254 NLRB 1012 (1981), cited by Respondent, may be inconsistent with this rationale, I do not regard it as controlling as the factual basis for the supervisor being perceived as a unit member is unclear bargain during that period as if the first certification year had not expired. I have considered a lesser extension but conclude on the basis of Glomac Plastics,9 that the poli- cies of the Act would be best effectuated by granting the parties the opportunity to bargain for another 12 months. In that case the Board extended the certification for an additional year when the employer began to engage in bad-faith bargaining after only 9-1/2 months of the certi- fication year had passed. The Second Circuit stated in enforcing the Board 's Order: ... it seems most unlikely that fruitful negotiations could now occur during a mere two and one-half months of bargaining. We recognize that renewal of the full bargaining year is in some respects undersirable since it in- volves the possibility that an unwanted bargaining representative will be imposed for a time on the unit employees. General Electric Co. v. N.L.R.B., ... 400 F.2d at 730. In view of the unfortunate and substantial delay in this case, however, every reme- dial solution will have its disadvantages. And as we discuss at greater length below , relief will not be available for dissatified employees who will retain their statutory right to petition for decertification. 29 U.S.C. Sec. 159(c). Under all these circumstances, we simply cannot find that the renewal of the entire bargaining year is an abuse of the broad discretion afforded the Board in fashioning an appropriate remedy . See Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 216 (1964).10 I have reviewed the cases since Glomac and conclude the Glomac remedy is the most appropriate . In particular, compare M. A. Harrison Mfg. Co., 256 NLRB 427 (1981), enfd. 682 F.2d 581 (6th Cir. 1982), and Southside Electric Cooperative, 243 NLRB 390 (1979). The tradi- tional rule, recently followed in Cellar Restaurant, 262 NLRB 796 (1982), was to require the parties to bargain for the period of time remaining to obtain a total of 12 months. See also Deister Concentrator Co., 253 NLRB 358 fn. 2 (1980). But the Board has also required that the parties bargain for a "reasonable period" in similar cir- cumstances. G. J. Aigner Co., 257 NLRB 669 (1981). It seems to me that the best policy to apply is Glomac. First, the election was held in August 1980. As this deci- sion issues more than 4 years will have passed since the election. Thus, the built-in delays seen in Glomac are present here. Furthermore, here, as in Glomac, 2 months of bargaining simply will not suffice . The last bargaining session occurred on July 6, 1983, almost a year from the date this hearing commenced and over a year since the date this decision is issuing. Undoubtedly there have been changes in the intervening period that would affect bargaining if it were to resume today. It would, there- 234 NLRB 1309 fn 4 (1978), enfd in pertinent part 592 F 2d 94 (2d Cir 1979), reaffd on motion for reconsideraation 600 F 2d 3 (2d Cir. 1979) 10 Glomac Plastics Y. NLRB, 592 F 2d 94, 101 (2d Cir 1979). DOMINGUEZ VALLEY HOSPITAL 157 fore, be nearly impossible to reinstate the status quo as of July 6, 1983, and allowing the parties only 2 more months to bargain before the certification year expires would be a wholly inadequate remedy Moreover, with- drawing recognition during the certification year is a se- rious unfair labor practice clearly warranting this remedy Cf Cellar Restaurant, supra Accordingly, I conclude that the certification year should be extended for a full 12 months On the foregoing findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1 National Medical Hospital of Compton, d/b/a Do- minguez Valley Hospital is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act in June 1983 when, acting through its supervisors Ruiz and Daniels, it solicited employees to sign a petition seeking to justify withdrawing recognition of the Union It fur- ther violated Section 8(a)(1) when Daniels and Ruiz co- erced employees into signing the petition, when Daniels threatened employees with loss of jobs if they decided to support the Union and when Daniels asked employees to wear antiunion buttons. 4 Respondent violated Section 8(a)(5) and (1) of the Act when during June 1983 its supervisors attempted to undermine the Union's majority status by circulating a petition designed to oust the Union as the employees' collective-bargaining representative. 5. Respondent violated Section 8(a)(5) and (1) of the Act on July 12, 1983, when it withdrew recognition of the Union and failed and refused thereafter to engage in collective-bargaining negotiations with it On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed11 ORDER The Respondent , National Medical Hospital of Comp- ton, d/b/a Dominguez Valley Hospital, Compton, Cali- fornia, its officers , agents, successors , and assigns, shall 1 Cease and desist from (a) Interfering with, restaining , or coercing employees by soliciting them to sign petitions to oust the Union as their collective-bargaining representative; threatening employees with loss of employment if they decide to I i 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 support the Union and coercing them to wear buttons containing an antiunion message. (b) Refusing to bargain with Hospital and Service Em- ployees Union, Local 399, Service Employees Interna- tional Union, AFL-CIO by permitting its supervisors to undermine the Union's majority support by soliciting em- ployees' signatures on a petition designed to oust it as their bargaining representative. (c) Refusing to bargain with the Union by withdraw- ing recognition at a time when it was not lawfully per- mitted to do so. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act 12 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request bargain collectively in good faith con- cerning wages, hours, and other terms and conditions of employment with Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO as the exclusive representative of its employees in the bargaining unit described below. Regard the Union as the exclusive bargaining agent as if the initial year of certification has been extended for an additional year from the commencement of bargaining pursuant hereto If an understanding is reached, embody that understanding in a written, signed agreement. The bargaining unit is All employees of the Employer including all engi- neering and maintenance department employees, employed at its facility located at 3100 South Susana Road, Compton, California, excluding pro- fessional employees, confidential employees, guards and supervisors as defined in the Act. (b) Post at its Compton, California hospital copies of the attached notice marked "Appendix." 13 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 12 As an untimely withdrawal of recognition is a particularly serious matter under the Act demonstrating a general disregard for its obligations under the Act I find that a broad cease and desist order is appropriate See Hichmott Foods, 242 NLRB 1357 (1979) 19 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 " I