St. Agnes Medical Center

242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD St. Agnes Medical Center and District 1199C, Na- tional Union of Hospital and Health Care Em- ployees, AFL-CIO St. Agnes Medical Center and Albert L. Becker, Es- quire, Petitioner and District 1199C, National Union of Hospital and Health Care Employees, Division of RWDSU, AFL-CIO, Jointly with International Brotherhood of Firemen and Oilers, Local 473, AFL-CIO. Cases 4-CA- 14407, 4-CA-14407-2, 4-CA-14407-3, 4-CA- 14639, 4-CA-14639-2, 4-CA-15064, and 4- RD-1172 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 16 May 1986 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and an answering 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 briefs' and has decided to affirm the judge's rulings, findings,2 ' The General Counsel has excepted to the judge 's failure to include in his recommended Order a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order We have concluded that under the circumstances of this case the requested provisions are not warranted 2 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 Members Babson and Stephens agree with the judge that the Respond- ent violated Sec 8(a)(5) of the Act in unilaterally promulgating "Guide- lines for Disciplinary Action" that were , at least in part , at variance with provisions of the collective -bargaining agreement There is no merit to the Respondent's claim that the Unions waived any right to bargaining by not objecting at the time Where the midterm mod,fication of a collec- tive-bargaining agreement is concerned , it is not sufficient that the other party is afforded notice and an opportunity to bargain or to object, mutual consent of the parties is required before the action can be taken Oak Cliff-Golman Baking Co, 207 NLRB 1063, 1064 ( 1973), enfd mem 505 F 2d 1302 (5th Cir 1974), cert denied 423 U S 826 (1975), NLRB v Scam Instrument Corp , 394 F 2d 884, 887 (7th Cir 1968), cert denied 393 U S 980 ( 1968) Although the complaint alleged that the change in disci- plinary rules occurred "on or about July 1, 1984, " the judge found- based on the Respondent 's own submission-that the guidelines had first been promulgated in February 1984 Members Babson and Stephens con- clude that the lawfulness of their earlier promulgation was fully and fairly litigated In view of the fact that a charge attacking unilateral action respecting disciplinary guidelines was filed on June 29, 1984, Members Babson and Stephens reject the Respondent 's 10(b) defense, which is predicated on the alleged untimeliness of a separate charge filed in May 1985 and conclusions, 3 as modified, and to adopt the recommended Order. We agree with the judge that a bargaining order is necessary to remedy the effects of the Respond- ent's unfair labor practices and that a fair rerun election cannot be held because of the nature and extent of the Respondent's unlawful conduct. The Respondent's illegal acts of interference, coercion, and discrimination were engaged in by high man- agement officials over a period of several months and touched every member of the bargaining unit. Thus, prior to the election the Respondent subject- ed employee Porter to onerous working conditions to stifle her union activities, and discriminated against employee James by suspending him for dis- tributing union materials in violation of the Re- spondent's unlawful no-solicitation/no-distribution rules. Both of these actions were widely publicized among unit employees. Further, during the preelec- tion period, the Respondent unlawfully maintained written "Guidelines for Disciplinary Action," which conflicted with the existing collective-bar- gaining agreement, and promised employees in- creased hours and the reimbursement of deducted union dues to discourage them from supporting the Union. It is the Respondent's postelection conduct, how- ever, that we find most significant in concluding that a bargaining order is warranted here. Despite the decertification election, the Respondent at all material times had a continuing obligation to rec- ognize and bargain with the Union.4 Nevertheless, immediately after the election the Respondent im- posed restrictions on the Union's contractual right Chairman Dotson would not adopt the judge's finding that the promul- gation of the disciplinary guidelines, as distinguished from their mainte- nance, was violative of Sec 8(a)(5) and (1) The Respondent correctly notes in its exceptions that the relevant complaint paragraph alleged the unilateral change as occurring "on or about July 1, 1984" The parties stipulated that the guidelines had been in effect since "at least" 1 July 1984 The credited evidence established, however, that the Respondent promulgated these rules beginning in February 1984 and that their imple- mentation continued throughout the 10(b) period until at least late May 1984 Despite this evidence, the General Counsel never sought to amend the complaint regarding the date on which the violation arose In these circumstances, Chairman Dotson concludes, it would be improper to find a violation from 1984 and he would dismiss this complaint allegation Further, Chairman Dotson would not adopt the judge's finding that the Respondent violated Sec 8(a)(5) and (1) of/the Act by delaying and refusing to make fringe benefit payments for the 3 months prior to the expiration of the contract See his dissenting opinion in Rapid Fur Dress- ing, 278 NLRB 1189 (1986) 3 The Respondent excepted to the judge's inadvertent statement in Conclusions of Law 4, wherein he found that the overly broad no-solici- tation, no-distribution rules, threats, interrogations, and promises were violative of both Sec 8(a)(3) and (1) despite his findings in the opinion that these acts constituted 8(a)(1) conduct We find merit in this excep- tion, noting additionally that the complaint alleged them to be 8(a)(1) conduct We shall therefore amend the Conclusions of Law accordingly 4 See, e g, Decorel Corp, 163 NLRB 146, 149 (1967) (loss of election by the union not a fair reflection of employee desires when election was set aside based on the respondent's objectionable conduct) 287 NLRB No. 26 ST. AGNES MEDICAL CENTER of access to employees and threatened employee Mobley with layoff in retaliation for his union ac- tivities. Shortly thereafter, on expiration of the col- lective-bargaining agreement, the Respondent's president notified the entire bargaining unit that the Respondent was unilaterally granting them a sub- stantial wage increase and that, although the health care field was facing difficult times, "together and without the Union's interference, we can survive." Subsequently, the Respondent unilaterally ceased making contributions to various union fringe bene- fit funds, laid off employees in contravention of contractual provisions, and repudiated the contrac- tual grievance procedure.5 The clear message driven home to employees by the Respondent's un- lawful postelection actions was that the Union was irrelevant and powerless . Further, the employees' majority vote to reject the Union was promptly re- warded with a substantial wage increase, an act that has a particularly lingering effect on employ- ees, which would continue to give the Respondent an unfair advantage in a new election. In these cir- cumstances, this imbalance can be corrected only by giving the Union an opportunity to resume its role as collective-bargaining representative.6 We find that the Respondent's unfair labor prac- tices were clearly designed and had the tendency to undermine the Union's representative status at a time when there was no probative evidence that the Union had in fact lost its majority support. Ac- cordingly, we adopt the judge's findings that the possibility of conducting a fair rerun election is slight and that the issuance of a bargaining order is the only reasonable remedy that can restore the status quo ante.? AMENDED CONCLUSIONS OF LAW 1. Substitute the following for paragraph 4. "4. The Hospital violated Section 8(a)(1) of the Act by maintaining a rule which precludes the un- authorized solicitation of employees on its premises for any purpose; by maintaining a rule which pre- cludes the distribution of nonwork related materials without prior approval of the Hospital; by solicit- ing an employee to distribute the Hospital's antiun- ion campaign literature to fellow employees; by co- ercively interrogating an employee about her union sympathies; by promising employees that their pre- 5 Specifically, the judge found that the Respondent refused to process a grievance filed by the Union after contract expiration regarding an em- ployee's discharge It is clear from the record that this case presents a generalized refusal to process any grievance , and not merely a lawful re- fusal to process a particular grievance or class of grievances See Indiana & Michigan Electric Co., 284 NLRB 53 (1987). 6 Michigan Products, 236 NLRB 1143 (1978). 7 See Atlas Microfilming, 267 NLRB 682 (1983), enfd . 753 F.2d 313 (3d Cir. 1985), Flex Plastics, 262 NLRB 651 (1982), enfd 726 F.2d 272 (6th Cir. 1984) 243 viously reduced hours would be restored to dis- courage them from supporting the Union ; by prom- ising to reimburse employees for deducted union dues to discourage them from supporting the Union; by threatening an employee with layoff be- cause of his union activity and by threatening the employee with layoff in disregard of established se- niority and layoff policies." 2. Insert the following as paragraph 5 and re- number the subsequent paragraphs. "(5) The Hospital violated Section 8(a)(3) of the Act by discriminatorily changing employee Por- ter's lunch and break times, escorting her whenever she left her department , including escorting her to the toilet, and changing her job assignment to re- strict her to her department to discourage protect- ed union activities and by discriminatorily suspend- ing employee James to discourage protected union activities." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, St. Agnes Medical Center, Philadelphia, Pennsylvania, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order. William Slack Esq., for the General Counsel. Frank Sabatino, Esq., for the Employer. Miriam Gafni, Esq., for the Union. DECISION FRANK H. ITKIN, Administrative Law Judge. This is a consolidated decertification and unfair labor practice proceeding. Respondent operates a hospital in Philadel- phia, Pennsylvania, and is admittedly an employer en- gaged in commerce and a health care institution, as al- leged. District 1199C and Local 473 are admittedly labor organizations, as alleged. On March 11, 1982, District 1199C and Local 473 (the Union) were jointly certified as bargaining agent for the Hospital's full-time and regu- lar part-time service and maintenance employees. (See stipulation, Jt. Exh. 1.) The parties entered into a collec- tive-bargaining agreement effective from July 1, 1982, to June 30, 1984. Thereafter, on March 29, 1984, Albert L. Becker, an attorney, filed a petition on behalf of certain unit employees seeking to decertify the Union (Case 4- RD-1172). A decertification election was held on May 16, 1984, resulting in 126 votes cast in favor of continued representation by the Union, 132 votes cast against con- tinued representation, and 10 challenged ballots. The Union filed timely objections to the election. The Board's Regional Director, on September 26, 1984, issued his report on the challenged ballots and objec- tions. The Regional Director found that six of the chal- lenged voters were in fact eligible. A revised tally of bal- lots therefore issued showing 126 votes cast in favor of 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD continued representation and 138 votes cast against con- tinued representation . The Regional Director also found that union objections were parallel to pending unfair labor practice allegations (Cases 4-CA-14407, 4-CA- 14407-2, 4-CA-14407-3, 4-CA-144639-2, and 4-CA- 15064) and ordered that these objections , as well as other objectionable conduct discovered during the investiga- tion of the proceedings , be consolidated for purposes of hearing and decision. The unfair labor practice charges in this proceeding were filed by the Union on May 10, June 29, August 1, October 5 , and November 9, 1984, and on May 7, 1985. An amended consolidated unfair labor practice complaint issued on June 28, 1985 . Further amendments to this complaint issued on September 27, 1985, and at the hear- ing. Briefly , the General Counsel alleged that the Hospi- tal had violated Section 8(a)(1), (3), and (5) of the Na- tional Labor Relations Act by, inter alia, coercively in- terrogating employees about their union activities, prom- ising employees benefits in order to discourage them from engaging in union activity , threatening to discipline employees if they engaged in union activity, improperly restricting employees in their right to solicit the union support of their coworkers and distribute union litera- ture, confining employee Carrie Porter to her depart- ment and suspending employee Ronald James because of their union activities ; failing to make fringe benefit pay- ments and dues remittances as required by the collective- bargaining contract ; and, in addition , unilaterally altering various working conditions . Respondent Hospital denied violating the Act, as alleged , and raised a number of af- firmative defenses. Hearings were held on the issues raised in these con- solidated proceedings in Philadelphia , Pennsylvania, on October 7, 8, and 9, 1985. On the entire record, includ- ing my observation of the demeanor of the witnesses, and after due consideration of the briefs filed , I make the following FINDINGS OF FACT A. The Hospital's Preelection Conduct A petition to decertify the Union was filed on March 29, 1984. A Board-conducted decertification election was held on May 16, 1984 The Hospital , according to Exec- utive Vice President Thomas Callaghan, was "very happy to know that the people were anxious to decertify . . . we were anxious to try to see the Union decertified . . we held numerous meetings among our supervisors distributing literature and material to them for them to give to the individual employees . ." The Hospital, in opposing the Union's continued certification, engaged in the following conduct. 1. The confinement of employee Carrie Porter Employee Carrie Porter testified that she started working for the Hospital in 1974; that she has been as- signed to the central sterile supply department for the past 5 to 8 years; that her job duties there included "room checking , picking up soiled equipment from the different nursing units , bringing it down [to her depart- ment], cleaning it, picking up contaminated needle boxes" and related activities, and that her "job . . . re- quired [her] to spend most of her time outside of her department . Porter went on sick leave for surgery in February 1984; she returned to work on April 2, 1984; and she then gave her supervisor , Evelyn Capaldi, a "doctor's note" that recommended "no heavy lifting and pulling " (See G .C. Exh. 4.) Porter and Capaldi, after a discussion, agreed that Porter "could go back to work" at her "regular job." Porter was a union delegate and steward . Patricia Di- Domenico was the Union's business representative. Porter, during her "first few days back at St . Agnes," talked to [DiDomenico ] outside of the building we talked about the decertification , the fact that there was a petition going around . . . [and they both spoke to] anybody that came by [Porter] wanted to know who had signed the peti- tion ; [Porter] asked certain employees . . if they had signed the petition The above activities by Porter and DiDomenico oc- curred "on the pavement leading to the entrance of the Hospital," where employees "passed by to get to the en- trance." Shortly thereafter, as Porter further testified , Supervi- sor Capaldi faulted Porter for being on break "in the caf- eteria too long " Capaldi cautioned Porter that she "was being watched " Porter protested that she "had just gone on break" and was not in the cafeteria "longer than 15 minutes." Capaldi did not respond . Instead, Capaldi later instructed Porter that her "break time was being changed [to] 8 o'clock" and that her "lunch time was being changed [to] 11"; that Porter "was being confined to the department . . if [Porter ] had to leave the de- partment [Capaldi] would have to go with " her; that Ca- paldi, in making the above changes, "was following orders"; and that Capaldi would even have to accompa- ny Porter "to the bathroom . anywhere." Porter noted that later that same day- I [Porter] said that I had to go to the bathroom and she [Capaldi] walked me there and waited outside until I got done, and about an hour or so later she asked me if I had to go, because she had to go to a meeting [and] would be out of the department. I said I would wait until I went home. Porter complained to the Union about her confinement and restriction. Union Representative DiDomenico, in turn, complained to management Consequently, about April 7, the day after Capaldi imposed the above restric- tions, Porter was no longer escorted to the toilet or break facilities . She was permitted to take her regular breaks. She was, however, still confined to her depart- ment and escorted when she had to leave her department ' In the past , Porter's 15-minute morning break was between 8 30 and 9 15 a in and her 45-minute lunch break was between 11 30 a in and I p m Previously, Porter did not "have to obtain approval from [her] su- pervisor before leaving" for breaks or utilization of the toilet facilities Porter's new morning and lunch break times new put her in the cafeteria with "the nuns and administration," instead of with her coworkers ST. AGNES MEDICAL CENTER 245 for other reasons, such as, for example , when "we went to physical therapy to restock the exchange card" or "pick up some contaminated needle boxes." Porter repeatedly complained to her coworkers about her confinement and restriction. And, on April 13, Porter presented management with a "new doctor's note" permitting her to "return to normal duties." (See G.C. Exh. 5.) Porter was then taken by Supervisor Ca- paldi to Director Robert Cauto, where they had the fol- lowing conversation: [Cauto] told me [Porter] that he was glad that the doctor had lifted the restrictions, but in his opinion I was a very nonproductive employee and I would be better kept in the department. Porter, however, as she testified, was permitted to go "back to doing my regular duties" "after this decertifica- tion vote." Employee Omega Phipps witnessed coworker Porter's confinement. Phipps recalled that Supervisor Capaldi had "said that Carrie was not to leave the department ... she was speaking to me and anyone else who was around at that time . . . she said to Carrie, do you have to go to the bathroom because I have to leave the de- partment and Carrie's answer was no . . . she [Capaldi] said, I'm only doing what I'm told to do. . . " Supervisor Evelyn Capaldi testified that employee Porter, in the performance of her regular job duties, spent about half of "her time out of the department"; that Capaldi did "know [Porter] was involved in some way with the Union"; and that about April 6, 1984, Di- rector Cauto telephoned Capaldi and they had the fol- lowing conversation: Q. Ms. Capaldi, isn't it true that on or about April 6, 1984, you received a telephone call from Mr. Cauto regarding Porter? A. It might be the 6th, right. Q. Ms. Capaldi, during this telephone conversa- tion, Mr. Cauto told you that he had heard Carrie Porter and Ronald James were engaging in election- eering for 1199C during working hours, is that true? A. True. Q. And he told you to restrict Porter to her de- partment and to keep track of every minute of her time, is that true? A. Yes. Q. Now was Carrie Porter at work when you re- ceived those instructions? A. When I received them or she received them, sir? Q. When you received them? A. No, I wasn't at work when I received them. Q. You were not at work when you received them? A. That's correct. Q. When did you relay the instructions to Carrie Porter? A. The same day as I got the phone call. Q. And how did you do that? A. By phone. Q. What precisely did you tell her? A. I don't remember the exact words, you know, except that she's to remain within the department. Q. And how long was Carrie Porter confined to the CSS Department? A. I don't know the exact day, sir, what time she was released back out to the floors . But I'm sure it's in the record somewhere. Q. Isn't it true that she remained confined to her department until after the decertification election? A. I don't know if it was that long or not. Possi- bly. I really don't remember this far back. Elsewhere, Capaldi testified that she had met with "em- ployees in the department to discuss Porter 's confine- ment." Capaldi claimed that she had told Porter's co- workers-who "were unhappy that [Porter] was being kept within the department"-that Porter's confinement "was due to the doctor's note." However, as Capaldi ac- knowledged, Porter presented a second doctor's note about April 13 (G.C. Exh. 5) and she was still "confined to the department after [Capaldi] received the second note." Further, Capaldi admittedly had instructed em- ployee Phipps, "regarding . . . Porter's assignment on the weekends," "just to keep her [Porter] in the depart- ment." Capaldi "may have" telephoned Phipps "on the weekends to see whether Porter had left the depart- ment." Capaldi "possibly might have said" to Porter, about April 5, that Porter "was being watched." And, Capaldi admittedly was given "an order to follow [Porter] to the bathroom."2 2 Capaldi identified R. Exhs 4 , 5, and 6 as earlier writeups, warnings, and related disciplinary action taken against Porter in September and De- cember 1983 and in early January 1984 . Porter was then warned to "im- prove on your productivity , attitude and sick abuse" or risk "immediate termination " Capaldi added - Porter "has had numerous problems up on the floors over the years." Capaldi elsewhere claimed that when Porter returned from sick leave during early April 1984, Director Cauto "told me to keep her in the department on light duties . . as far as I knew, it was because of the (doctor's] note." Cf Jt. Exhs 1 , 3, and 4. However, after Capaldi received a second Doctor's note from Porter, Director Cauto still "said to keep her on light duties " In addition, Elizabeth Sommers, a secretary for the Hospital, recalled an incident in early April when she was told on the telephone by em- ployee Ronald James that employee Porter "wanted to sign the petition that we had . . to decertify the Union." Sommers took a "break" to get "the petition"; however, Sommers obtained a "blank paper" because she "did not want" Porter "to see the names." Sommers assertedly showed this "blank paper" to another worker before attempting to get Porter to sign. Thereafter, when Porter was supposed to "sign ," Porter did not keep her appointment . Sommers then questioned Porter about her failure to appear and Porter asserted that "the head nurse came along and scared me" Sommers then checked with the head nurse and reported this inci- dent to Director Cauto Sommers had obtained some 60 to 70 signatures on the "petition." She recalled that about 110 to 120 employees had signed, admittedly "less than half' of the unit (Tr. 252) See also the testi- mony of Head Nurse Pat Orr and colloquy (Tr 256-261). Director Cauto, no longer employed by the Hospital, did not testify. I credit the testimony of Porter as recited above . Porter impressed me as a credible and trustworthy witness Her testimony is corroborated in significant part by the credible testimony of coworkers Phipps and James (noted in section 2). Her testimony is also substantiated by admissions by Capaldi On the other hand , I do not credit Capaldi 's testimony insofar as that testimony conflicts with the above testimony of Porter. Capaldi did not impress me as a reliable witness. Her testimony was, at times, incom- plete, vague, evasive, shifting, and contradictory Likewise , insofar as the testimony of Sommers and Orr conflicts with the testimony of Porter, I find Porter's testimony to be more complete, candid , and reliable. And, Cauto, as noted , did not testify 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The suspension of employee Ronald James Employee Ronald James testified that he has worked in the Hospital 's anesthesia department for about 20 years; that his normal work schedule is from 7 .30 a.m to 4:30 p.m; that he has been a union delegate since 1982 "handling grievance complaints" for some 25 to 30 co- workers; and that, in the past, he has, without criticism, "sold raffle tickets . . in the hallways in the depart- ment" to employees and supervisors , and that his fellow employees similarly have "attempted to sell" him various items James specifically recalled that, in the past, he has distributed raffle tickets to cafeteria personnel and, on at least one such occasion, the supervisor observing this "didn't' say anything." Further, coworkers have given James items to distribute to other employees. On the morning of April 18, following the filing of the decertification petition , James entered the Hospital's caf- eteria to have breakfast before starting his shift. James had with him a bundle of 40 or 50 union pamphlets that were to be given to another union delegate. James handed this bundle to cafeteria worker Rose Gerace and "told her to give this to her delegate"-Louella Wil- liams. Gerace was working the food line at the time and "she took the literature and gave it to her supervisor"- Ann Regan James recalled . . then , as I picked up my breakfast , I see her [Regan] with the literature . I told her it was not for her. . . . Then she told me she would give them out. I said you don 't have to give them out .. . they were for the delegate . . for Louella Wil- liams . . Then she gave me all the literature back . . . I proceeded through the line and paid for my breakfast. Later that same afternoon , James was summoned to the personnel office and , there, told by Assistant Person- nel Director Anthony DiBartolo. You [James] should be fired,. . . . You were dis- tributing literature inside the cafeteria. And I [James] said I was not distributing literature in that cafeteria I told Rose to give it to her delegate Then he [DiBartolo] said . . . we are not going to fire you We're going to suspend you for three days. James was then "escorted" "out of the building" by a "guard." James later related this incident to his fellow employees 3 Ann Regan testified that she had worked at the Hospi- tal for the Whalen Food Service; that her title was "food service manager", and that during April 1984 , she wit- nessed employee James give employee Gerace "a pile of papers" and say, "here hand these out." Gerace, in turn, "handed them" to Regan Gerace was working the 9 James also witnessed Supervisor Capaldi "talking to the supervisor in the operating room" while Capaldi "was standing by the bathroom door The operating room supervisor wanted to know why [Capaldi] was standing there [and Capaldil said she had to escort Carrie Porter to the bathroom a lot [of] personnel were standing in the door [at the time] " See sec 1, supra counter line at the time James, assertedly, then said to Regan, "You are a supervisor , those things do not belong to you, I want them back." Regan gave them back be- cause "I was very afraid and I felt threatened ." Regan understood that these pamphlets "were given to a Union person to pass out to other Union people in my depart- ment " Regan, assertedly, was "upset" and reported the incident to Executive Vice President Thomas Callaghan. Regan acknowledged that it only took some 5 to 15 sec- onds "for Rose to take the papers and hand them to" her. Assistant Personnel Director Anthony DiBartolo testi- fied that he and Vice President Callaghan "were decid- ing what to do with Ronald James because he was hand- ing out literature in a work area . . . According to our guidelines, we suspended Ronald James " (Cf it. Exh. 23.) The Employer's "Guidelines For Disciplinary Action." DiBartolo told James that he [James] handed out literature in a work area and that he would have been terminated because there was a work stoppage, however, because of his longevity we suspended him for three days. Executive Vice President Thomas Callaghan testified that he made "the decision to discipline Mr. James." Cal- laghan claimed that he had been told that James "snatched the material" from Regan. Callaghan, citing the collective-bargaining agreement, also claimed that James had "caused a work stoppage ." Callaghan then cited other prior "incidents" involving James 4 Cal- laghan further testified: Q. After Mr. James' suspension was over, and after the [decertification] election , there is a stipula- tion that a grievance was filed and that Mr. James' grievance was settled Can you tell me why it was settled? A Upon a review of the facts in a much cooler atmosphere, I realized that I had been unjust, so I felt that properly he should be reinstated with his three days.5 4 According to Callaghan , James , as union shop steward , had said to coworkers in the operating room , "These people have been cut to a 35- hour week when our 35 hours is up we leave " Thus, according to Callaghan, James "hinted very seriously that this was going to happen right in the middle of procedures or whatever " 5 This settlement "was without prejudice " to the Union's "right to argue that the suspension of James was an unfair labor practice " Jt Exh 1, p 4 In the settlement , James would still receive an "oral warning " See Jt Exhs 1, 5, 6, and 7 Cf Jt Exh 23 , the Employer's "Guidelines For Disciplinary Action " Employee Ronald James, as well as employees Carrie Porter (Tr 49- 51), Catherine Hilbert (Tr 95-98), Michele Holmes (Tr 106-108), Ethlyn Chambers (Tr 135-138), and Crystal Colazzo (Tr 144-147) testified that they had distributed candy, raffle tickets , and related items inside the Hospital often in the presence of supervisors Callaghan acknowledged that "employees have been observed passing out nonwork related materi- al such as raffle tickets in the Hospital" and, assertedly, "they have been told to stop it" (Tr 21) As stipulated, however (Tr 15), "since January 15, 1983, Respondent has not disciplined or discharged any employee for distributing literature or other items in the Hospital with the exception of Ronald James , who was suspended on April 18, 1984 " I credit the testimony of James as recited above James impressed me as a truthful witness His testimony is corroborated in significant part by Continued ST AGNES MEDICAL CENTER 247 3. The warning to employee John Mobley Employee John Mobley has worked for the Hospital for 4 years as an escort. His supervisor is Clyde Sams. Mobley testified that about 6 or 7 days before the decer- tification election, I [Mobley] was coming to work with some [Union] literature . . . to distribute it on my lunch hour .. . and I had brought them in a half hour earlier and put them in a plastic bag . . . I took them to Iso- topes . . . and asked the Isotope Tech . . . if it was allright to keep them in there . She told me it was allright and I put them in the bottom on the low level of [supervisor] Dalton's . . . desk . And from there I went back to work. Mobley explained that he believed that the plastic bag would be "safe" in the Isotopes section. Later, Mobley went back to retrieve his plastic bag and it "wasn't there." Mobley inquired and was ultimately advised that "they gave them to Mr. Sams." Mobley then went to Sams' office; "knocked on the door"; and observed that Sams "wasn't there" and "my literature was sitting there on a couch." Mobley "picked it up and ... took them back out." Shortly thereafter, Sams summoned Mobley to his office, and they had the following conversation: He [Sams] had asked me [Mobley] where is the literature, the bag that was sitting on his couch. I had told him I had took them, took them upstairs because they had belonged to me . . . Then he asked me, well what did you do with them? And I told him I had took them upstairs . So he asked me what am I doing in his office . I told him I came to, you know, to see him about the literature. He wasn't there. So I had took them because I didn't see the harm. And after that he had told me, well, what do you plan to do with them . I had told him distribute them on my lunch time I will. So he had told me well,-I think he had told me-after I had told him I was planning on distributing them on my lunch period, he had told me, well, you know you're not supposed to be doing that. So I asked him, what do you mean. He said, you know, passing out literature on your working time. So I had told him that it wouldn 't be on my work- ing time. It would be on my lunch period to pass them out, what I mean was to pass them out to the escorts that are in the department , the other nine es- corts. . . . After that, then he had told me, well, I hold you responsible if I had seen any of them around. So I had told him I don't think you could because I no longer have them now, and took them to another Union member and gave them to her. So he had told me, well , you have heard what I said. If I see any of them around , then I will hold you re- sponsible. And I just threw my hands up and just left back to the department. Mobley did not distribute the flyers because, as he ex- plained, he was afraid that he would get into "hot water." Mobley related this incident to his coworkers. Clyde Sams is supervisor in the escort department. Sams testified, inter alia, that he had faulted Mobley for going into his office and getting the "pro-Union" litera- ture. He instructed Mobley : "You can't take that with you . . . it was work time." Sams assertedly stated to Mobley: "That can be distributed on his [Mobley's] own time but not on Company time." Elsewhere, Sams ac- knowledged that the plastic bag involved was not trans- parent; that he had "looked inside" ; and that "it would have made" some "difference" if the plastic bag had con- tained instead, for example, "somebody's running clothes."e 4. The Employer's request that employee Ethlyn Chambers distribute antiunion literature ; Supervisor Diane Plotkin's statements to employees Employee Ethlyn Chambers is a nursing assistant at the Hospital. Chambers testified that during the weekend preceding the decertification election, Supervisor Sandra Stanley approached her "at the nurses station" in the Hospital, and Stanley put [the antiunion] literature right on the ledge at the nurses' station, and said . . . take one for your- self and distribute the rest for the other girls. Chambers "scanned it" and "walked away." Supervisor Sandra Stanley testified that she had been "asked to give out literature to employees on an individual basis" and that "on one occasion" she passed out the flyers to "maybe 50" employees . Stanley insisted that she "did the credible testimony of Porter, Hilbert, Holmes, Chambers, and Co- lazzo. His testimony is also substantiated by admissions of Regan, DeBar- tolo, and Callaghan Insofar as the testimony of Regan , DeBartolo, and Callaghan differs with the testimony of James, I find on this record the testimony of James to be more complete , forthright, reasonable, and reli- able. I do not find Regan to be a reliable or trustworthy witness . In par- ticular, her claim that James caused her to feel "threatened" is not sup- ported by the credible evidence of this record. Regan, in asserting that she "felt threatened," was, in effect, attempting to bolster the unreliable and shifting testimony of both DiBartolo and Callaghan-that is, that dis- ciplinary action was taken against James because he threatened Regan and/or caused a work stoppage James was not distributing union litera- ture in the cafeteria. He did not cause any work stoppage. And, he did not threaten Regan. I therefore reject as incredible the incomplete, shift- ing, contradictory, and unreasonable assertions by DiBartolo, Callaghan, and Regan for their disciplinary action against James . As discussed below, James, like Porter, was being discriminated against in an attempt to discourage his union support 6 I credit the testimony of Mobley. He related in detail his encounters with Sams regarding his enclosed "bag" of union literature , as recited above, and regarding his postelection evaluation , as recited in sec B,2, below. And, although Mobley has had a limited formal education, his tes- timony was complete, forthright, and candid. He impressed me as a truth- ful witness. I do not, however, credit Sams His incomplete, shifting, and general attempt to reconstruct his preelection instructions to Mobley in terms of a more limited and lawful no-distribution rule are not supported by the credible evidence of record . Sams did not impress me as a reliable or credible witness. He was, as discussed below, attempting to discourage Mobley from engaging in protected prounion activity by threatening to "hold" Mobley "responsible" if he "saw any" of the union literature "around," despite Mobley 's insistence that he would only distribute "on my lunch time." Likewise, Mobley credibly related how Sams admon- ished him after the election that the Employer, "as far as layoffs would be coming up . . . won't be going by seniority ," and Mobley "may not get another evaluation." I do not credit Sams' general denial of such "discussions." 248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not" "ask any employee to help " Stanley was uncertain when this incident took place "in relation to the elec- tion" or when "the election was." Employee Michelle Holmes was previously employed by the Hospital as a physical therapy aide and worked under Supervisor Diane Plotkin Holmes testified that about 5 days before the election, Plotkin met with Holmes in an office, and there Diane [Plotkin] did most of the talking She had a bunch of documents that she said she got from Ad- ministration showing what the Union had not done for Union employees and why I [Holmes] should vote no against the Union . And she also asked me how did I feel about what was going on be- tween the Union and the Hospital And I didn't answer her. . . . Oh, yes, I did, I said, I'm tired of hearing the same thing over and over again, because we had so many meetings in the past . two weeks she was having meetings all the time . . She [Plotkin] asked me other questions. She asked me, well, Michelle, tell me the Union's side of the story . I didn't answer her . I asked her about the meetings, when [sic] where they going to stop Employee Holmes further testified that Supervisor Plot- kin had conducted a preelection meeting of the physical therapy aides "on the Monday before the election." The aides' hours, according to Holmes, had been reduced from 40 to 35 hours per week in early 1984 Supervisor Plotkin, at this meeting told us [the aides] that the lawyer said, the lawyer for the Hospital, that things looked good for the Hospital and, after the election was over, our hours would be restored [See stipulation, Jt. Exh. 1, p. 4.] Former Supervisor Plotkin denied questioning Holmes. Plotkin also claimed that at a meeting employee Rose Simkiss had "asked me if it was possible if the Union was decertified might that enable them to regain their 40 hours." Plotkin assertedly responded: "I didn't see that the Union had anything to do with that." Rose Simkiss, still employed by the Hospital, similarly claimed that Plotkin was asked, "If the hours were going to be re- stored and she said it had nothing to do with the Union." Simkiss explained that she was "against the Union" and had signed the decertification petition Simkiss could not "remember" "if there were any other questions other than [her] question about the restoration of hours"- "there may have been but I don't recall "' ' On this record, I am persuaded that Chambers has credibly and can- didly related Stanley's attempt to get Chambers to distribute anhumon lit- erature to "the other girls " I do not credit Stanley 's general denial Like- wise, I find here that Holmes has credibly and fully related her preelec- tion encounter with Plotkin I am persuaded that Plotkin, in implement- ing the Employer's antiunion campaign , handed "a bunch of documents" to Holmes and pointedly asked the employee "how did I feel about what was going on between the Union and the Hospital" and "tell me the Union's side of the story " On the other hand, I do not credit Plotkin's denial of this interrogation Plotkin did not impress me as a reliable or candid witness In addition , I also credit Holmes ' recollection that Plot- kin had informed employees that "the lawyer for the Hospital [said] that 5 The Employer' s no-solicitation and no- distribution rules General Counsel's Exhibit 3 is the Hospital's "Employ- ee Performance Appraisal" form. This form contains a "Uniform Code Of Rules For Employees," including rule 22, that provides that the "Unauthorized solicitation of employees, patients and visitors at St Agnes Hospital premises for any purpose" is a "cause for suspension and/or dismissal." Executive Vice President Thomas Callaghan testified that this "evaluation form" is given to each employee every year and the employee is required to sign the form This form and practice have existed at the Hospital for at least 10 years Elsewhere, Callaghan testified that in 1979 [W]e felt that we needed to have a much more spe- cific rule than [G C Exh 3, rule 22]; that was too constraining, and we put forth a more formal policy and much more broader rule Respondent's Exhibit 2, according to Callaghan , is this "much more broader rule." 8 Callaghan, however, ac- knowledged that (R Exh 2), quoted supra, is contained in the Hospital's "policy manual" at the nurses' stations ,and department heads' offices , "but is not . given out to the employees . . .", the "employees are free to look at it if they choose" ; and employees have not "been told that they are to disregard any rules" on the back of (G.C Exh. 3), which is given to them "every year." In addition, Callaghan testified as follows- Q. Mr Callaghan, during the existence of the col- lective bargaining agreement between the Union and St. Agnes, was there any other policy concern- ing solicitation, specifically in the context of union- izing? things looked good for the Hospital and, after the election was over, our hours would be restored " Cf Jt Exh 1, stipulation, p 4, par 8 Also see it Exh 32, where Sr Clarence later explained that the union contract had "terminated", a wage increase "became effective", "We are commit- ted to restoring the 40-hour work week as soon as feasible", and "con- gratulations on your regained freedom " I do not credit the assertion by both Plotkin and Simkiss, both opposed to the Union, to the effect that Plotkin had answered a question by Simkiss at an employee meeting by responding that restoration of the hours "had nothing to do with the Union " Moreover, as discussed below in sec B , 1, I also find that Holmes has credibly recalled how Plotkin later explained to the employees after the election that the Employer would deduct union dues, "but we would be reimbursed " Colazzo credibly corroborated in part of Holmes' testimo- ny I do not credit Plotkin 's general and vague assertion that she had ap- prised employees that "there was a possibility that those dues would be returned there was some kind of litigation " See also Jt Exh 33, quoted in sec B,1, infra 8 R Exh 2, dated October 11, 1976, and revised February 9, 1979, and October 1, 1981, provides, in part Solicitation of employees by nonemployees or distribution of literature by employees is prohibited during work time and in any patient care area at all times Work time means only those periods when the employee is engaged in performing his/her work tasks and does not include lunch breaks or other authorized breaks In addi- tion, distribution of literature by employees is prohibited at all times in any work areas An employee who is on his/her free time or break may not solicit or distribute literature to employees who are working ST AGNES MEDICAL CENTER 249 A Yes, there was The collective bargaining agreement has a no solicitation rule in it Q And just for the record, I am handing you a copy of . Joint Exhibit 2. And if you could state for the record where that provision is found? A. Article VI, paragraph 1 Q Now, how long was Article VI, paragraph 1 in effect? A For the two years that the agreement was in effect Q. And when the collective bargaining agree- ment expired, what policy then was in existence? A. We went back to this [R Exh. 2] Well, this always stayed in effect for the nonbargaining unit employees. Q Now, Mr Callaghan, under the rules that we have explained, I am talking about since 1979, Re- spondent Exhibit 2, Joint Exhibit 2, under these rules, as you interpret them, what would be the status of an employee who solicited for Union sup- port in a nonwork area or a nonpatient care area during nonwork time9 What would be the status of that? A Perfectly legitimate 9 And, as Callaghan acknowledged, the annual "evaluation form" containing rule 22 (G C Exh. 3) was still utilized while the collective-bargaining agreement was in effect. Callaghan, in his prehearing affidavit (Tr. 17, 21), had stated It is the policy of the Hospital not to permit the dis- tribution of nonwork related material without prior approval of the Administration . . . At the hearing, however, Callaghan claimed that he had been "mistaken" and it is "not totally" "the policy of St. Agnes not to permit the distribution of nonwork related material in the Hospital without the prior approval of the Administration " He cited both the "clause in the con- tract" and "certain policies concerning the nonsolicita- tion rules of the institution" (Tr 17). (Cf G C Exh. 3; R. Exh. 2, and Jt Exh 2 ) Also see the testimony per- taining to employees James, Mobley, and Porter and the Employer's implementation of its no-solicitation/no-dis- tribution policies, discussed supra to 9 Art VI of the collective-bargaining agreement (Jt Exh 2, p 7), pro- vides, in part No employee shall engage in any Union activity, including the dis- tribution of literature, which could interfere with the performance of work during working time or in woik areas of the Employer at any time Ordinarily, Union activity during working time shall be re- stricted to meeting with St Agnes [Management] at mutually agreed upon times All other Union activity, of any type or descrip- tion, shall be conducted outside employee working time and outside work areas 10 Much of the pertinent evidence summarized in this section is undis- puted Callaghan, as noted, has admitted certain actions by the Employer and certain prehearing statements by him However, on this record, Cal- laghan's assertions that, inter ilia, he was "mistaken" in his prehearing affidavit and that an employee could solicit union support in a nonwork area or nonpatient area during nonwork time are conclusionary, contra- dictory, shifting, and unreliable In short, I find Callaghan to be an unre- liable witness except to the extent that he has admitted the above-recited pertinent acts by his Employer 6 The Employer adopts disciplinary guidelines Joint Exhibit 23 contains some seven pages of "Guide- lines For Disciplinary Action" that were, according to Executive Vice President Callaghan, "promulgated" on February 15, 1984. Callaghan recalled that they [the Guidelines] were distributed to the supervisors with an explanation . . . to present them to their staffs and to ask the staffs to sign a document that they had seen them. Callaghan, however, when shown documents containing employee signatures (R Exh 3), acknowledged that the Hospital's records "are not very perfect at all" and, "this was really at the discretion of the supervisor . . . some could have been on vacation and got around to doing it [at] a later date . . . and I just don't know Callaghan testified. Q. Can you tell me how many, going from- Feb- ruary 15th, or actually February 1st to the expira- tion of the collective bargaining agreement, could you tell me how many, if any, complaints you re- ceived from the Union concerning these rules? A. I don't recall any. Q Was there bargaining with the Union before the promulgation of these rules? A. No Q. Can you tell me why there was no bargaining? A. We didn't feel we had to. Q And why was that? A. We have Management Rights [clause] within the contract which we felt clearly allowed us to do this kind of thing. Under these "Disciplinary Guidelines," employees absent without authorization for 2 successive days were subject to discharge. Employees absent 5 days in a 12- month period were subject to a warning The collective- bargaining agreement provided, inter alia, that "seniority shall be broken when an employee . . . is absent for 48 hours without notifying St Agnes unless the employee presents an excuse acceptable to St. Agnes." (Art. IX.) The agreement also provided that "an employee will earn 10 days sick leave per year" and "may accumulate unused sick leave up to a maximum of 60 days." (Art. XXI) Callaghan explained Q Now, would you turn on page 6 of Joint Ex- hibit 23, which is the work rules, the disciplinary work rules. Perhaps if I hand it to you, it will be easier. I call your attention to the section which talks about unauthorized absence for more than two days. A Yes. Q You are familiar that at that time in February 1984, the Union contract [Jt. Exh 2] was in effect, were you note A. Yes, I was. Q. And in the Union contract it permitted em- ployees to be absent in excess of 48 hours with an excuse, isn't that true? A Yes. Q. So, this was a difference than the collective bargaining. 250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. No. I believe-well, I would have to go back and review the CBA more fully in terms of that. We made an effort certainly not to be in contradic- tion to the CBA. Q. By CBA, you mean the collective bargaining agreement? A. Collective bargaining agreement. Q. Do you know how many days of sick leave a year employees accrue under the collective bargain- ing agreement? A. No, I do not. Q If I tell you that it was 10 a year, and they were permitted to accumulate up to 60 during the course of their employment, would that refresh your recollection? A That's fine. Q. That's not inconsistent with your memory? A No. Q. With regard to the work rules on absenteeism, I call your attention to the statement which shows eight absences would be grounds for discharge for an employee within a year. Do you see that? A. Yes. Q. And would that have affected an employee who used their 10 days of sick leave in the course of the year that they were entitled to accumulate [under the contract]? A It possibly could. Q. Did you discuss that with the Union when you proposed that change? A. No, we did not. Q. And that was to be effective February 15, 1984? A That's correct. Q. I take it you did not send a copy of these new work rules to the Union organizer, Ms. Di Tomaso? A. No, we did not. The "Management Rights" clause of the contract (Jt. Exh. 2, pp. 2-3) provides that the Employer "retains the sole right . . . to promulgate working rules and regula- tions" "except where expressly abridged by a specific provision of this Agreement "11 7. The Employer fails to make fringe benefit payments under the contract and limits the Union's access to the facility a The funds Article XXVI of the collective-bargaining agreement between the parties (Jt. Exh 2, pp. 25-26) provided for "training and upgrading" of the unit employees. As noted supra, District 1199 and Local 473 were jointly certified to represent the unit employees. (See Jt Exh. " The pertinent evidence summarized above is by-and-large uncontro- verted Further, Callaghan has essentially admitted the sequence pertain- ing to the Employer's unilateral adoption of disciplinary guidelines and its impact on or conflict with the Union's outstanding contract However, beyond these admissions, as discussed supra, I regard Callaghan as an un- reliable witness in view of his evasive. contradictory, shifting, and incom- plete testimony 1.) The bulk of the some 270 unit employees were Dis- trict 1199 service employees. Some 20 remaining unit employees were Local 473 maintenance workers The Hospital, effective July 4, 1983, was required under the contract to "contribute to the Philadelphia Hospital & Health Care District 1199C Training And Upgrading Fund . one percent of the gross payroll of all employ- ees in the bargaining unit covered by this Agreement . . . . Together with the periodic payments herein provided . . St Agnes shall submit regular monthly reports." In addition, article XXVII (pp 26-27) provided for a "group legal services fund." The Hospital, effective Jan- uary 1, 1984, was also required to "contribute five cents per hour for each hour paid for 'all employees covered by this Agreement . . to a jointly administered group legal services trust fund to be known as the District 1199C National Union Of Hospital And Health Care Employees Group Legal Services Fund . . Such payments shall be made on the previous month's payroll .. . . Together with the periodic payments herein provided . . . . St. Agnes shall submit regular monthly reports." [Emphasis added.] As the parties stipulated (Jt. Exh. 1, pp 4-6): The monthly contributions and reports to both Funds were required to be made by the last day of the month following the month in which payroll was reported. Because Respondent failed to make contributions and furnish reports on behalf of all employees in the bargaining unit to both Funds for the months of April, May and June 1984, the Union filed grievances Joint Exhibit 8 is a grievance filed by District 1199C on June 25, 1984, regarding Re- spondent's failure to make contributions and furnish reports to the Funds for the months of April, May and June 1984. Joint Exhil5it 9 is a grievance filed by District 1199C on May 4, 1984, regarding Re- spondent's failure to pay benefits for maintenance employees to the Legal Services Plan and the Train- ing and Upgrading Fund from January 1, 1984, and from July 4, 1983, respectively. On July 1, 1984, Respondent made contributions on behalf of service employees only for the months of April and May 1984, to the respective Funds, but did not furnish the reports until July 18, 1984. Joint Exhibit 10 is a letter sent to Edward McLaughlin, Respondent's Director of Personnel, from Nora Kessenich, Secretary-Treasurer of District 1199C, on July 18, 1984, regarding contributions to the Funds for maintenance employees It was received by McLaughlin. To date, no contributions have been made for any period on behalf of maintenance employees to either Fund On November 30, 1984, the District 1199C Train- ing and Upgrading Fund and the District 1199C Group Legal Services Plan initiated action in the United States District Court for the Eastern District of Pennsylvania against Respondent as Civil Action No. 84-5882, seeking contributions on behalf of all employees for the month of June 1984, and all main- tenance employees from July 1, 1983 and January 4, 1984, to the respective Funds. On January 22, 1985, Respondent forwarded a check in the amount of ST AGNES MEDICAL CENTER $2,577.44 to the Training and Upgrading Fund, and $1,452 03 to the Group Legal Services Fund for contributions due for service employees for the month of June 1984 Thereafter, the payroll records for June 1984, were furnished by Respondent to the respective Funds Joint Exhibits 11-12 are letters between Respondent lawyer Frank Sabatino and Gafni regarding those payments on January 22, 1985, and January 25 , 1985, respectively. Respondent has made no contributions and fur- nished no reports either to the District 1199C Training and Upgrading Fund or to the District 1199C Group Legal Services Fund for any month for any employee since July 1, 1984. Respondent did not give the Union prior notification that it would not submit contributions and reports to these Funds for any month after July 1984, and did not bargain with the Union about its contributions and reports to the Funds before deciding not to make any con- tributions and furnish any reports for the months after July, 1984. [Emphasis added.] Robert Feulner, secretary and business representative for Local 473, testified that during contract negotiations pertaining to the above funds, there was no "discussion of which employees would be covered" by the funds; "he assumed they all would be"; he later learned that "Local 473 members were not being provided with the benefits of these two Funds"; he then met with hospital personnel director, Edward McLaughlin , about May 23, 1984, and I explained that we were going to counter with a grievance . . I told him that our attorney said that we could go along with 1199C since it was a point contract . . [McLaughlin] said there was no prob- lem that it would be taken care of or paid. See also the testimony of employee Clifford Johnson (Tr. 70-71). Executive Vice President Callaghan claimed (Tr. 188- 190), "we could not comprehend why we would send monies to 1199C for 473 members that didn't seem quite apt to us inasmuch as they [1199C and 473] had a split of their own doing in terms of dues", there- fore, "We did not pay the other . .1112 12 See also the stipulation in Jt Exh 1 , pp 7-8 , pertaining to the Hos- pital's contractual obligation to remit to the Union on a monthly basis names and certain other data of new unit employees and terminated unit employees, and the Hospital 's failure to do so Assistant Personnel Direc- tor DiBartolo generally asserted , inter alia In July of 1983 1 did not hand in any more reports I was never asked for them I thought that it was just too much of a cleri- cal job, that the Union did not want them any more [Tr 263-264 ] The evidence summarized above is for the most part stipulated and un- controverted I credit Feulner's related testimony pertaining to contract negotiations and the Employer 's later assurance to Feulner that the fund contributions "would be taken care of or paid " Feulner's testimony was in part corroborated by the testimony of Johnson Feulner was a forth- right witness and I find him to be a reliable witness On the other hand, I reject DiBartolo's and Callaghan's vague, incomplete , unclear , and belat- ed attempts to justify the Employer's failure to comply with the clear contractual language as incredible I am persuaded instead, on this record, that management was engaging in this unilateral conduct as part b Union access 251 In addition , article VI of the collective-bargaining agreement (Jt Exh. 2, p 7) provides. Representatives of the Union, after first reporting and receiving permission from the Personnel Direc- tor or his duly authorized representative , shall have reasonable access to St. Agnes for the purpose of administering this Agreement . A Union delegate in- tending to go to a department other than the one he represents must receive permission from his Depart- ment Head to leave the department in which he works and the permission of the Department Head of the department he is entering . Such visits shall not interfere with the operation of St. Agnes. Per- mission will not be unreasonably denied Further, article VI also states that the Hospital "shall provide an enclosed bulletin board outside the cafeteria area, which shall be used for the purpose of posting no- tices pertaining to Union business " Union Representative Patricia DiDomenico testified that, in the past, when she had attempted to obtain access to the Hospital , "there was a security guard sta- tioned in the entrance . . I would check in with him or her and they called personnel"; she was not "required or ever told" to "give advance notice"; she was never denied access, there was never any "limitations" on where she could go; and [I]f I in fact had told Mr . McLaughlin that I was going to the nursing floors or perhaps the cafeteria . . there are other departments and areas which you pass through . . if I saw members I stopped and talked. DiDomenico added: Sometimes I would arrive just a few minutes before [a] grievance hearing . . . there were other occa- sions where I would in fact arrive several hours earlier, taking that time to visit with the member- ship in the cafeteria and then going into the griev- ance hearings later Likewise, Hospital Personnel Director Edward Mc- Laughlin, recalled that union representatives were "granted permission" to enter the Hospital "for griev- ances and visiting employees in the lobby or the cafete- ria." And, as for the union bulletin board as provided in the contract, McLaughlin recalled that this bulletin board was "right outside the cafeteria . in a glass case . . . and 1199C had a key to the'glass case." Union Rep- resentative DiDomenico noted that the Hospital, in the past, "never discussed" "limitations on what .. . could and could not" be put up by the Union. Union Representative Cheryl Feldman testified that about April 10, 1984, she and Julio Pagan of its effort to defeat continued representation of the unit employees by their certified Union 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD entered St Agnes Hospital and went to the security guard to let him know that we were the Union rep- resentatives and that we wanted to enter the cafete- ria to have lunch with some of the employees . . [The chief of security] told us that we were not the representatives for the Union, and would not let us enter the building Feldman and Pagan "insisted that in fact we were the representatives from the Union", "employees who knew" Feldman and, Pagan gathered to "ask us what was hap- pening"; and "we told them we were being refused per- mission to go to the cafeteria and have lunch with the employees." Ultimately, Hospital officials McLaughlin and DiBartolo appeared, and they announced that "only one representative could go into the cafeteria " Feldman protested to McLaughlin "that there was a problem with Carrie Porter" being escorted to the bathroom "a griev- ance by one of the employees." In response, McLaughlin "denied that it was happening with Porter and kept on repeating that only one person could go into the cafete- ria." A crowd of some 25 to 30 people had "gathered." They "weren't making a lot of noise . . . although some of the delegates were saying . . they're our Union rep- resentatives . why can't they go into the cafeteria . . . and asking what's going on with Carrie Porter." The police were summoned In the meantime, Feldman and Pagan went to the "coffee shop" and there discussed Porter's complaint with McLaughlin McLaughlin stated to the union representatives. "He didn't believe that Carrie was being escorted to the bathroom and, even if she was, he'd make sure that he stopped it." The union representatives spoke to other employees and "decided to leave."13 Union Representative DiDomenico similarly recalled that about May 1, she attempted to enter the Hospital, "there were grievances scheduled for that afternoon"; "so I took the opportunity to come to the institution early and visit with the membership and talk in the cafe- teria and go around the institution." Hospital representa- tive, McLaughlin, then notified DiDomenico "that I was not permitted into the institution that day until such time as we had official business, which was grievances later that afternoon " DiDomenico "protested " McLaughlin had not given DiDomenico any advance notice that "he was going to limit [her] access to the Hospital [and] she could only come in to handle grievances or attend griev- ance hearings."14 1' Feldman, as she further testified, attempted to enter the building and property about two or three times after the above incident The security chief "would come and take us away " Cf the testimony of Assistant Personnel Director DiBartolo (Tr 265-274, 277-281) See also the testi- mony of employee Louis Lalh, pertaining to an attempt by a union orga- nizer to leaflet employees in the kitchen (Tr 367-368), and the related testimony of employee Joann Scruggs (Tr 440-442 ) i4 McLaughlin claimed, inter alia , that he limited union access to the Hospital because of "several incidents " About April 3, "Pat and Julio came in I didn't even know they are in the building and they are giving out literature in the building " McLaughlin was "very dis- turbed " The next incident cited by McLaughlin was about April 9 He generally recalled the "big commotion" when two union representatives attempted to enter the facility He recalled or had been told about "other incidents " See Tr 409-411 McLaughlin claimed "When all this was happening I decided I am not going to let them in the building Personnel Director McLaughlin identified (G.C Exh. 6) as literature "posted on the Union's bulletin board" during "very early May." McLaughlin "felt" that (G.C. Exh 6) "contained material misrepresentations regarding the Hospital's position," namely, "they [the Hospital] mean to get rid of the Union." McLaughlin therefore "removed" (G.C. Exh. 6) and "changed the lock." McLaughlin gave no advance notice to the Union; how- ever, he later apprised Union Representative DiDomen- ico that he had "changed the lock on the bulletin board" and he was "not going to give her a key"-"she would have to come to [him] and request permission before posting anything on the bulletin board."1e B. The Hospital's Postelection Conduct 1. The Hospital removes the Union's bulletin board and fails to remit union dues The decertification election was held on May 16, 1984 On the next day, May 17, Personnel Director McLaugh- lin "shut down the Union bulletin board", he "took the material off"; and put up a "photo." McLaughlin testi- fied: Q. You felt you could simply ignore the contract after the election? A. I made a mistake there, yes sir. Article IV of the collective-bargaining agreement (Jt. Exh. 2, pp. 4-6) provides for "check off." The Hospital was required, inter alia, to remit to the Union by the 20th day of each month all dues and initiation fees de- ducted from employee wages the preceding month to- gether with a list of employees from whom the dues I confined it to grievances " McLaughlin, as noted below, also changed the lock on the bulletin board on May 2 and removed the bulletin board on May 17 Further, McLaughlin acknowledged that Union Representa- tive Ford attempted to enter the facility on May 10 "to discuss a griev- ance " He claimed that there were no "grievances on file " He later ad- mitted that a grievance had been filed on May 4 and could not "recall" "others " 15 Union Representative DiDomemco, accompanied by Union Vice President Donna Ford, later entered the Hospital to request permission to post literature on the bulletin board Ford, while waiting, entered the caf- eteria for a cup of coffee She was ordered to leave the building by a security guard McLaughlin, however, indicated to DiDomenico, in re- sponse to her request to go into the cafeteria, he would escort us he would shut down the line if we pushed our way into the cafeteria DiDomemco and Ford left the Hospital I credit the testimony of DiDomemco and Feldman as recited above Their testimony is in pertinent part mutually corroborative of the Em- ployer's attempt to limit union access at the Hospital Their testimony is in significant part substantiated by admissions by McLaughlin and DiBar- tolo They impressed me as credible and trustworthy witnesses On the other hand, as recited above, McLaughlin and DiBartolo did not impress me as reliable witnesses Their testimony was at times vague, incomplete, contradictory, and evasive In particular, I do not credit the Employer's assertion that union access was limited here in response to and because of union misconduct instead, as discussed below, I reject this assertion as an afterthought advanced to justify the denial of union access to the Hos- pital under its contract and existing practice Further, I note the limited testimony of both Scruggs and Lalli And, on the entire record, I am per- suaded that DiDomenico and Feldman have more completely and forth- rightly related the pertinent sequence and, insofar as their testimony con- flicts with the testimony of McLaughlin, DiBartolo, Lalh, and Scruggs, I find the former witnesses' testimony to be more complete and reliable ST AGNES MEDICAL CENTER 253 and/or initiation fees had been deducted Executive Vice President Thomas Callaghan testified that "we were de- lighted" at the results of the election", "people had indeed expressed their opinion that they no longer wanted the Union", "essentially we felt we were under no obligation to bargain with the Union", and I think I have a sense of feeling that after the elec- tion there was a general consideration that the people no longer wished to pay dues to the Union because they have dust said they no longer wanted to court of competent jurisdiction You shall be in- formed of all developments as they occur Former employee Michelle Holmes testified that the "day after the election . . we had a .staff meeting in the physical therapy gym." There Rose Simkiss asked Diane [Plotkin, the supervisor,] would we have to pay Union dues for the month of June, and Diane said yes. The Hospital was going to take Union dues out, but we would be reim- bursed. Consequently, and as the parties stipulated (Jt. Exh. 1, pp. 6-7), "Respondent did not either remit the dues or initiation fees deducted for the months of April, May and June 1984 or submit the accompanying list of employees to the Union."16 In addition, on September 25, 1984, Hospital President Sister M. Clarence, sent employees the following letter (Jt. Exh: 33) We did not pay to the Union the dues which were withheld during April, May, and June of this year. It was (and still is) our intention to return that money to you upon decertification of the Union After the Union lost the decertification vote, it initiated a number of legal actions designed to win through litigation what it could not' win at the ballot box We are contesting all of these actions. The Union is also attempting to force us to pay the money withheld in April, May, and June to the Union treasury rather than to you We do not be- lieve that we are required to pay the money to the Union under the terms of the old collective bargain- ing agreement On October 10th of this year, an ar- bitration hearing will be held to determine if we can return the money to you, or if we must forward it to District 1199C. The Union has also initiated an action before the National Labor Relations Board in an attempt to recover the dues. We have directed our attorneys to resist both at- tempts by the Union to obtain your money. We shall not pay the money to the Union unless direct- ed to do so by an arbitrator, the Labor Board, or a 16 The parties also stipulated (Jt Exh 1, p 7) Joint Exhibit 13 is a grievance regarding Respondent's failure to remit dues and initiation fees and to furnish the list of employees that was filed by District I199C on July 18, 1984 An arbitration regard- ing Joint Exhibit 13 was held before Arbitrator Scott Buchheit on October 10, 1984 Joint Exhibit 14 is Buchheit's decision On or about December 14, 1984, Respondent remitted to District 1199C the dues and initiation fees deducted from the wages of employees for the month of June 1984, together with a list of all employees from whom the dues and/or initiation fees were deducted for that month Respondent has never remitted to the Union the dues and initiation fees that were deducted from the wages of employees for the months of April and May 1984, nor has it submitted lists of employees from whom such dues and initiation fees were deducted during those months Joint Exhibit 15 is a letter sent by Sabatino to Gafni regard- ing the dues and initiation fees Joint Exhibit 15 was sent on Decem- ber 14, 1984, and received by Gafni Joint Exhibits 16-22 are copies of correspondence exchanged between Gafm and Sabatino regarding this award Employee Crystal Colazzo also testified that Supervisor Plotkin had said, "That our money would be refunded from the last two months of dues.," 17 2 The Hospital changes various terms and conditions of employment The union contract expired on June 30, 1984. Hospital President Sister M. Clarence, on July 2, 1984, apprised the unit employees (Jt. Exh. 32): This is the first time in two years that I have been able to communicate with you freely-our first workday without the interference of a Union. The Union contract terminated at midnight on Sat- urday, June 30 I 'am sure you are happy that Union dues will no longer be deducted from your pay- checks As announced through your supervisors a 5% wage increase became effective on July 1, 1984 In addition, we are committed to restoring the 40-hour work week as soon as feasible and, hopefully, in September after census recovers from the summer drop. We are still facing difficult times in the health care field. However, together and without Union intervention we can survive The Board of Trustees and Administration of,Saint Agnes Medical Center, are deeply committed to improving your wages and benefits. Further, as noted supra in section A, the Employer stopped, on July 1, making fund reports and contribu- tions as required in the contract (see Jt Exh 1, p 6). And, the Employer disregarded the "seniority provisions of Jt Exh. 2" laying off unit employees "without notifi- cation to the Union." (See Jt Exh 1, p 9, and Tr. 14). In addition, the Employer unilaterally ignored the griev- ance procedures of the expired contract and refused to process a grievance pertaining to a discharged employee. (See Jt. Exh. 1, p. 10 and Jt Exhs. 28, 29, and 30.) The 17 Supervisor Plotkin claimed that, in response to a question from em- ployee Simkiss, she advised the employees that "there was a possibility that those dues could be returned my response was that there was some kind of litigation I had no idea " The evidence summarized above is essentially uncontroverted As dis- cussed above, I have credited Holmes and Colazzo as more trustworthy than Plotkin Further, I rely on McLaughlin's and Callaghan's admissions as recited here, beyond this, however, as discussed above, I do not regard them as credible and trustworthy witnesses 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Employer did not notify or bargain with the Union over these and related changes. Finally, the Employer made clear to employee John Mobley-a prounion worker previously discouraged by supervisor Clyde Sams from distributing union literature because he believed that he could get into "hot water" (supra, sec A)-that the Hospital no longer intended to follow layoff provisions in the expired contract. Mobley, as he testified, had received his annual evaluation in August 1984 from Supervisor Sams. During the evalua- tion, Sams said. As far as layoffs would be coming up . . . they won't be going by seniority no longer Mobley's "reading" ability was deficient and, as Mobley explained to Sams, he hoped to improve by his "next evaluation " Sams warned- "I may not get another eval- uation . . . they wouldn't be going by seniority . . as far as layoffs."18 Discussion The Union was certified by the Board as bargaining agent for the Hospital's some 270 service and mainte- nance employees on March 11, 1982 The Union and the Hospital entered into a collective-bargaining agreement effective from July 1, 1982, through June 30, 1984. A de- certification petition was filed on March 29, 1984. The petition was signed by approximately 110 to 120 employ- ees, as counsel for the Hospital agreed, "less than half' of the unit employees. A decertification election was scheduled for May 16, 1984. The Hospital was "anxious to decertify" the Union and engaged in an extensive an- tiunion campaign, including the following threats, coer- cion, restraint, and discrimination. Thus, as detailed supra, employee Porter was a union delegate and steward. She stood outside the Hospital en- trance with the union business representative asking "certain employees . if they had signed the [decertifi- cation] petition." Shortly thereafter, she was faulted by her supervisor for being "in the cafeteria too long"; she was warned that she "was being watched"; her usual break times were changed to isolate her from her co- workers, she was "confined to the department", she was escorted by supervision when she had to leave the de- partment; and she was even escorted to the toilet facili- ties. Porter complained to her coworkers and union rep- resentatives about these changes and restrictions Her break and toilet restrictions were then removed; howev- er, she was still confined to her department and escorted to other work areas until shortly after the decertification election. The Employer, in its posthearing brief (71-88), asserts, inter alia, that Porter had been disciplined on several occasions in the past; she was given a light-duty- slip by her doctor following recent surgery and was con- fined for this reason; she was engaging in improper "electioneering"; and, finally, "any violations concerning 18 Supervisor Sams generally denied "any discussion" with Mobley "concerning the layoff policy or layoffs " I have discredited Sams' deni- als as discussed above I have found Mobley to be a more credible and trustworthy witness The remaining evidence in this section is essentially undisputed Porter are de mmimis " As noted supra, I reject as pre- textual the Employer's belated, shifting, contradictory, and incredible reasons for its disparate treatment of Porter Instead, I find on the credible evidence of record that the Hospital discriminatorily changed Porter's break times, restricted and confined her to her department, ad- monished her, and even escorted her to the toilet and other Hospital areas as a part of its intensive effort to oppose the Union. The Employer's disparate treatment of this union supporter was made known to Porter's co- workers and, assessed in the context of this full record, cannot reasonably be characterized as "de mmimis " Employee James was also a union delegate. During the decertification campaign, he handed to a worker in the cafeteria a bundle of union pamphlets that the worker was to give to her union representative. The entire trans- action took some 5 to 15 seconds James was then threat- ened by management with discharge and suspended for 3 days because he, assertedly, was "distributing literature in that cafeteria." He was escorted out of the building by a security guard. Subsequently, after the decertification election, the Employer acknowledged that it had been "unjust" and reduced James' penalty to an oral repri- mand. The credible evidence of record shows that em- ployees frequently had engaged in nonunion or antiunion solicitation and distribution before and throughout the pertinent time period, however, as conceded, "since Jan- uary 15, 1983, Respondent has not disciplined or dis- charged any employee for distributing literature or other items in the Hospital with the exception of Ronald James, who was suspended on April 18, 1984." The Em- ployer, in its posthearing brief (Br. 59-69), claims, inter alia, that James was engaged in improper distribution of union literature; he intimidated or threatened "other em- ployees"; he had engaged in the past in misconduct, and his "suspension," if improper, is also "de minimus [sic]." I reject these belated, shifting, contradictory, and incred- ible assertions as pretextual attempts to justify the Em- ployer's discriminatory treatment of this known union supporter. James, as discussed supra, did not distribute union literature or cause a work stoppage or threaten any employees in the cafeteria He was unjustly punished to deter union activities and his coworkers were apprised of this unlawful conduct Clearly, in context, this 8(a)(1) and (3) violation, like that involving Union Representa- tive Porter, is not "de minimus " Employee Mobley was also a union supporter. During the decertification campaign, he brought an enclosed bag of union literature to work. He put the enclosed bag of union literature in a safe place, intending to hand out the pamphlets to his coworkers during lunchbreak. Supervi- sor Sams found the bag, opened the bag, and then ad- monished Mobley "If I see any of them around . I will hold you responsible." Sams ignored Mobley's ex- planation that "it would be on my lunch period." Mobley, afraid that he would get into "hot water," did not distribute the literature. Mobley apprised his cowork- ers of this incident And, after the decertification elec- tion, Sams pointedly warned Mobley during an "evalua- tion," that "as far as layoffs would be coming up . . [the Employer] won't be going by seniority" and Mobley ST AGNES MEDICAL CENTER "may not get another evaluation " The Employer, in its posthearing brief (Br. 51-59), states, inter alia, that "Sams had dust caught Mobley in the act of conducting Union activity during worktime" and, in any event, "Mobley's claims should be dismissed as de minimus." The credible evidence of record is to the contrary. Su- pervisor Sams, as a part of management' s intensive an- tiunion campaign, engaged in conduct plainly calculated to impinge on Mobley's, and his coworkers', protected union activities. Mobley and his coworkers were, in short, being apprised by management that they would be held "responsible" for any distribution of prounion litera- ture, in violation of Section 8(a)(1) of the Act. And, here too, in context, this additional act of proscribed interfer- ence with statutorily protected activities, is not "de mini- mus." In addition, as found supra, the Hospital maintained, at all times pertinent to this proceeding, rules proscribing the "unauthorized solicitation of employees . . for any purpose" and the "distribution of nonwork related mate- rial without prior approval of the Administration " Thus, unit employees were given written evaluations annually that recited, inter alia , "unauthorized solicitation of em- ployees . . . for any purpose" is a "cause for suspension and/or dismissal" (rule 22) And, as Executive Vice President Callaghan also acknowledged in his prehearing affidavit, "it is the policy of the Hospital not to permit the distribution of nonwork related material without prior approval." The Hospital does not seriously dispute that the main- tenance of such overly broad no-solicitation and no-dis- tribution rules violates Section 8(a)(1) of the Act. For, as the Supreme Court restated in Beth Israel Hospital v. NLRB, 437 U.S 483, 491 (1978), "the right of employees to self-organize and bargain collectively established by § 7 . . . necessarily encompasses the right to communi- cate effectively with one another regarding self-organiza- tion at the job site." Also see St. Joseph's Hospital, 262 NLRB 1385 (1982) Rather, the Hospital, in its posthear- ing brief (Br. 90-97), asserts, inter alia, that it has "never maintained an overly broad no-solicitation rule " The Employer principally relies on the testimony by Cal- laghan that his prehearing affidavit was "mistaken" and it is "not totally" "the policy of St. Agnes not to permit the distribution of nonwork related material in the Hos- pital without prior approval." The Employer also relies on Callaghan's related testimony that rule 22 was, in effect, rescinded by a "much more broader rule" (R - Exh 2) and by the "Union activity" clause of the collec- tive-bargaining agreement. I reject Callaghan's claim that he was "mistaken," as incredible. Indeed, the credited testimony pertaining to employees James and Mobley, summarized supra, makes it clear that management acted consistent with the existence of such overly broad no-so- licitation, no-distribution rules. Further, the unit employ- ees were never effectively informed that management had repealed or rescinded rule 22 On the contrary, unit employees were given a copy of rule 22 annually with their evaluations And, finally, this record shows, at the very least, that there was confusion about which rule or policy applied during the decertification campaign and, consequently, employees who wanted to engage in pro- 255 tected in-hospital union solicitation or distribution "might well be deterred or else reasonably assume that they [like Mobley or James] acted at their peril." Cf NLRB v. Walton Mfg. Co., 289 F 2d 177, 180-181 (5th Cir. 1962), and Campbell Soup Co v NLRB, 380 F.2d 372 (5th Cir. 1967) Under such circumstances, "if in fact [the Hospi- tal] did not intend [to convey an overly broad and un- lawful meaning to its rules and policies] it should be anx- ious to' dispel the impression by an appropriate notice stating its real position" and its operative rules Cf. Peter J. Schweitzer, Inc. v. NLRB, 144 F 2d 520, 522 (D.C. Cir. 1944) 19 Further, about 1 month before the filing of the decerti- fication petition, the Employer adopted and thereafter maintained some seven pages of "guidelines for discipli- nary action." These "guidelines" provided penalties for proscribed employee behavior and were inconsistent with express provisions of the existing collective-bargain- ing agreement with the Union. Thus, for example, as Ex- ecutive Vice President Callaghan acknowledged, "the statement [in the rules] which shows eight absences would be grounds for discharge for an employee within one year" "possibly could" "have affected an employee who used their ten days of sick leave in the course of the year that they were entitled to accumulate" under the contract. See also the conflicting provisions in the rules and the contract pertaining to unauthorized absences, quoted supra. Moreover, as Callaghan further acknowl- edged, no attempt was made by the Hospital to notify or bargain with the Union regarding these unilaterally im- plemented changes in terms and conditions of employ- ment. As the court stated in CIBA-GEIGY v. NLRB, 722 F 2d 1120, 1126 (3d Cir. 1983), "It is settled law that an employer violates section 8(a)(5) and (1) if a material change in conditions of employment is made without consulting with the employees' bargaining representative and providing a meaningful opportunity to bargain." And, of course, "under Section 8(d) of the Act, no party to a collective bargaining agreement can be compelled to discuss or agree to a midterm modification . . . and, ac- cordingly, a proposed modification can be implemented only if the other party's consent is first obtained." Cf. Abbey Medical/Abbey Rents, 264 NLRB 969 (1982) and Campo Slacks, 266 NLRB 492, 495 (1983), and cases cited The Hospital, in its posthearing brief (Br. 119-121), cites Callaghan's testimony to the effect that the "Man- agement rights clause" in the existing collective-bargain- ing agreement "clearly allowed us to do this kind of thing." As noted supra, however, this cited clause only "retains [to the Employer] the sole right . . . to promul- gate working rules and regulations" "except where ex- pressly abridged by a specific provision of this Agree- ment .. . ." And, the court noted in CIBA-GEIGY, supra: 19 Also without merit is the Hospital's argument that the Union has "waived" this employee Sec 7 right by its "Union activity" clause in the contract (Br 96) This contract language cannot reasonably be read as a clear and unmistakable waiver of the statutory proscription against such overly broad no-solicitation/no-distribution rules 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A waiver of a union's statutory collective bargain- ing rights must be clear and unmistakable . . . [and] the clause relied upon cannot be reasonably inter- preted as an authorization . . to make unilateral changes in other provisions of the contract . . . In sum, I find that Respondent Employer, by unilaterally adopting and thereafter maintaining these disciplinary guidelines, acted in derogation of its bargaining obliga- tion to the Union, in violation of Section 8(a)(5) and (1) of the Act.2o The Hospital, as part of its antiunion campaign, also imposed restrictions on the Union' s access to the Em- ployer's facility, contrary to the collective- bargaining agreement and existing practice. As found supra, union representatives, in the past, were permitted to visit and speak with Hospital employees in the cafeteria Union Representative DiDomenico credibly recalled that, in the past, no advance notice was required; no limitations were imposed ; and she had never been denied access. Like- wise, the Union's contractual access to a bulletin board located outside the cafeteria was, in the past , without re- striction . However, about April 10, union representa- tives-concerned over the Employer 's unlawful confine- ment of employee Porter-were denied access to the caf- eteria The police were summoned Later, during early May, Union Representative DiDomenico was refused access-"she could only come in to handle grievances or attend grievance hearings " The Union was given no ad- vance notice of these and related restrictions summarily imposed on its right of access . In addition, the Employ- er-assertedly displeased with the content of a piece of union literature on its bulletin board-unilaterally changed the lock on the bulletin board and retained pos- session of the key. Indeed, the day after the decertifica- tion election, the bulletin board was taken down alto- gether and replaced with a photograph. 1 20 The Employer also contends that the above violation is barred by the 6-month time limitation of Sec 10(b) of the Act (Br 119-121) This contention is also without merit The Employer's "guidelines," according to Callaghan , were promulgated on February 15, 1984, and admittedly no effort was made to notify or bargain with the Union These "guidelines" were thereafter utilized and implemented throughout the 10 (b) time period Although Callaghan asserted that supervisors were to give copies of these guidelines to unit employees, he later acknowledged that his records "are not very perfect" and some supervisors "could have been on vacation and got around to it at a later date " I note that the parties had stipulated that "the guidelines set forth in Jt Exh 23 have been in effect at all times since at least July 1, 1984 " See Jt Exh 1, p 8 Under all these circumstances , the unfair labor practice charge filed on May 7, 1985 (G C Exh lxx), specifically referring to these and other unlawful ac- tions, is not time barred This alleged violation continued into the 10(b) time period Cf Campo Slacks and Abbey Medical, supra And, in any event , unfair labor practice charges were filed in these consolidated pro- ceedings starting on May 10, 1984, and ending on May 7, 1985, pertaining to 8(a)( 1), (2), (3), and (5) violations by this Employer during its entire course of conduct in opposing the Union As early as May 10, 1984 (G C Exh la), the Union had charged unlawful attempts "to modify their col- lective-bargaining agreement " and "other acts" of interference, restraint, and coercion Also see the June 29, 1984 charge referring to "disciplinary work rules" (G C Exh Ig) and the August 1, 1984 charge referring to "unilateral changes in disciplinary work rules" and "other acts" (G C Exh lh), as well as the September 14, 1984 complaint (G C Exh In) There were, therefore, sufficient and timely charges pertaining to this and related facets of the Employer's entire antiunion course of conduct Cf Texas Industries v NLRB, 336 F 2d 128 (5th Cir 1964) Union access, including the utilization of a bulletin board, is a mandatory subject of collective bargaining. Cf. Campo Slacks, 250 NLRB 420, 429 (1980), and Preci- sion Anodizing & Plating, 244 NLRB 846, 857 (1979). This record shows that the Employer, without any at- tempt to bargain with the union , summarily imposed re- strictions on union access, denied union access, and re- stricted the Union's utilization of its bulletin board The Employer's action was in clear derogation of its bargain- ing obligation , in violation of Section 8(a)(5) and (1) of the Act. The Employer argues (Br. 16-35), inter alia, that its "decision to limit access . . . was necessary to deal with repeated acts of trespass "; the "more serious" incident of "trespass" was "on or about April 10"; the "denials of access on May 1 and 10 were reasonable"; "less restrictive measures were not appropriate"; "the ef- fects of the restrictions were de minimus"; and the "changing of the lock [of the bulletin board] . . did not interfere with legitimate Union activity " I reject these and related contentions . This record does not sufficiently demonstrate such serious acts of misconduct on the part of the Union that would privilege unilateral and summa- ry suspension of previously enjoyed contract access privileges . Indeed, the Employer cites, as justification, the Union's attempt to enter the facility on April 10 as a reason for restricting access. However, this record shows no misconduct on April 10 and , in fact, any limited com- motion that took place on that day was the direct result of the Employer's sudden change in access privileges. This is also true of the Union's use of the bulletin board The Union did not act in such a manner so as to forfeit its key to use its bulletin board . On the contrary, the Employer, anxious to rid itself of this Union, unreason- ably and without any attempt to bargain, denied and re- stricted access, in violation of Section 8(a)(5) and (1) of the Act. This violation, assessed in the context of the others discussed here, is also not "de minimus." In like vein, the Employer unilaterally delayed and re- fused to make fringe benefit payments and submit accom- panying reports as required in the collective -bargaining agreement The contract expressly provided for a train- ing fund and legal services fund for "all employees" in the unit As noted supra, the unit included both service and maintenance employees. The Hospital, as stipulated, "failed to make contributions and furnish reports on behalf of all employees in the bargaining unit to both funds for the months of April, May and June 1984." The Union grieved. On July 1, after the decertification elec- tion, the Hospital "made contributions on behalf of the service employees only for the months of April and May 1984 . . . but did not furnish reports until July 18 To date no contributions have been made for any period on behalf of maintenance employees to either fund " The Union instituted litigation during late November 1984 for all unit employees for the June 1984 payment and for the maintenance employees for all payments due Thereafter, in January 1985, the Hospital forwarded a check or checks for the June 1984 service employees payment. Later, the required records were forwarded for this June payment Since July 1, 1984, as discussed below, the ST AGNES MEDICAL CENTER 257 Hospital has furnished no payments or reports to the funds for any unit employees. The Hospital's delays, refusals , and failures to make these contractually required fund payments and submit accompanying reports were in plain derogation of its ob- ligation to bargain in good faith with the Union , in viola- tion of Section 8(a)(5) and (1) of the Act Cf. Campo Slacks, 266 NLRB 492, 495 (1983). The Hospital, in its posthearing brief (Br. 124-135), argues, inter alia, that "St. Agnes had no obligation to make contributions to the District 1199C benefit funds on the basis of work performed by Local 473 members" These and related contentions are without basis The clear contractual lan- guage obligated the Employer to make the fund contri- butions and submit the related reports for all unit em- ployees No distinction was discussed during bargaining or provided in the contract between the unit service and unit maintenance workers . Further, the credible evidence of record shows that Personnel Director McLaughlin, when confronted by Local 473 official Feulner during May 1984, acknowledged that "there was no problem" and the fund contributions "would be taken care of or paid " Indeed, this belated and incredible assertion by the Employer-that the unit maintenance employees should be excluded from the fringe benefit funds provided for all unit employees in the contract-is also at odds with its related delays and refusals to make fund contributions and submit reports for the service workers. In short, I am persuaded here that the Employer stalled , delayed, failed, and refused to make the required fund contribu- tions and submit the reports as a part of its intensive an- tiunion campaign .21 21 The Hospital argues that this claim is barred by an "accord and sat- isfaction" (Br 125) This contention lacks substance Thus, following in- stitution of litigation to collect the contractually due payments , the Em- ployer's attorney wrote the Union's attorney on January 22, 1985 (Jt Exh 11) Count I of the Complaint seeks contributions allegedly owed the District 1199C Training and Upgrading Fund , and Count II con- cerns payments purportedly owed to District 1199C Group Legal Services Plan Each Count, moreover, involves two separate types of contributions, namely , contributions on behalf of members of Dis- trict 1199C for the month of June 1984 and contributions on behalf of members of international Brotherhood of Firemen , Oilers, Power House Operators, Maintenance Mechanics Local 473 St Agnes, of course, contends that the former collective bargaining agreement never obligated it to contribute to either of the District 1199C bene- fit plans on behalf of members of Local 473 St Agnes, however, does acknowledge an obligation to contribute to the Training and Upgrading Fund and the Legal Services Plan on behalf of the District 1199C members for the month of June 1984 The failure to do so was a clerical oversight St Agnes shall promptly forward a $2,577 44 check to the Train- ing and Upgrading Fund and a $1,452 03 check to the Group Legal Services Plan These are the sums demanded in the complaint for the June payments on behalf of the District 1199C members St Agnes takes the position that these payments will constitute final satisfac- tion of all obligations owed to either the Group Legal Services Plan or the Training and Upgrading Fund The Union's attorney, on January 25, replied (Jt Exh 12) I have for reply your letter of January 22, 1985 The fact that St Agnes acknowledges at this late date its obligation to the District 1199C Training and Upgrading Fund and the District 1199C Group Legal Services Plan for the service employees for the month of June 1984 is appreciated However, the unilateral determination by you that payment of the sums of $2,577 44 to the Training and Upgrading Fund and $1 ,452 03 to the Group Legal Services Plan constitutes sat- isfaction of your obligation in the aforecaptioned litigation is totally The credited evidence of record, summarized above, also shows that, during the Employer's antiunion cam- paign , Supervisor Plotkin coercively interrogated em- ployee Holmes at work about her union sentiments and, in addition, promised Holmes and other employees addi- tional benefits if the Union lost the decertification elec- tion . Thus, Plotkin met with Holmes in a one-on-one meeting in an office at work. Plotkin persisted in learn- ing from Holmes "how did [the employee] feel about what was going on." Holmes expressed a desire to end these "many meetings" and "hearing the same thing over and over again . Plotkin again pressed Holmes- "Tell me the Union's side of the story." Holmes did not answer. Holmes again asked. "When were they going to stop?" Later, Plotkin told Holmes and other employees "that the lawyer for the Hospital said that things looked good for the Hospital and, after the election was over, our hours would be restored." Plotkin's persistent and un- warranted attempts to pry into Holmes' protected activi- ties, in context here, constitute the kind of coercive inter- rogation proscribed by Section 8(a)(1) of the Act. See, e g, Rossmore House, 269 NLRB 1176 (1984), NLRB v. Gladding Keystone Corp., 435 F 2d 129, 132-133 (2d Cir. 1970); and NLRB v. Novelty Products Co, 424 F.2d 748, 751 (2d Cir. 1970) And, Plotkin was, in like vein , unlaw- fully promising unit employees additional benefits-the restoration of their hours-if the Union were defeated, also in violation of Section 8(a)(1) of the Act Cf NLRB v. Sertafilm, 753 F.2d 313 (3d Cir. 1985). Indeed, after the election and the expiration of the Union's contract, management notified the employees: "Our first work day without the interference of a Union . . . a 5 percent wage increase became effective on July 1 . . . in addi- tion we are committed to restoring the 40-hour work week as soon as feasible." These benefits were restored in early 1985 . See (Jt. Exh 1, p. 4 and Jt. Exh 32.) Under all these circumstances , Plotkin's conduct, recited mistaken There remain outstanding claims for other emloyees as well as for 20% liquidated damages , attorney's fees and costs in con- nection with the same litigation Thus , if you send the checks as mentioned in your letter of January 22, 1985 , and they are deposited by the respective Plans, they will not be deemed to be an accord and satisfaction of the outstanding claims They will be credited to your account as partial payment on the outstanding obligation Please note that unless these contributions are also accompanied by the appropriate payroll records , they will not be credited at all Thereafter, the Employer sent the checks This is not , in my view, an accord and satisfaction of a disputed claim Cf 15 Williston , Contracts § 1838 (3d ed 1972), and cases noted, and International Longshoremen Union v Carghill, 372 F Supp 807, 811 (N D Cal 1974) Rather, this is a part of the Employer's continuing effort to delay , stall, and undermine its statutory bargaining obligation to the Union Counsel for the General Counsel , anticipating a 10(b) argument here, states in his brief (Br 15-16) that "Respondent cannot be held responsible for its failure to make any of the Fund contributions which were due before May 9, 1984," noting that a specific charge was filed on Novem- ber 9 , 1984 Cf Abbey Rents, supra I accept this limitation stated by counsel for the General Counsel , although I note, as discussed supra, that this unlawful conduct was part of the Employer's entire antiunion course of conduct and, arguably, sufficiently covered by related timely charges Nevertheless , the complaint is limited to "from on or about April 1, 1984 to on or about June 30, 1984" and, on balance , the 1-month variance may well be inconsequential 258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD above, tended to impinge on employee Section 7 rights. 22 As stated, the Union lost the May 16, 1984 decertifica- tion election by some 12 votes. Timely objections had been filed by the Union. The contract had not expired. Nevertheless, management, on the day following the election, removed the cafeteria bulletin board despite the pertinent contractual access provisions. In addition, man- agement refused to remit to the Union checked-off dues and initiation fees, as well as lists of employees from whom the dues were deducted, for the months of April, May, and June 1984. It also failed to remit lists of em- ployees hired or terminated as required in the contract Management admittedly "felt" that it "could simply ignore the contract after the election" and admittedly "made a mistake." This unilateral action by the Employ- er was in derogation of its obligation to bargain in good faith with the Union. Cf. Campo Slacks, 266 NLRB 492, 495 (1983). The Employer, in its posthearing brief (Br. 124-135). argues, inter alia, that the Board should "defer" to an arbitrator's award "with respect to" the outstanding dues and, further, "all of the benefit claims are barred by accord and satisfaction " These and related contentions lack merit. The arbitrator, as stipulated (Jt. Exh. 1, pp. 6-7, Jt. Exh. 14), found, among other things, that the Employer violated the contract by failing to remit the June dues; however, he determined that the grievance was "untimely" under the 5-day contractual provision for the April and May dues and, therefore, he had no jurisdiction. Under these circumstances, the Board should not defer to the arbitrator concerning the April and May dues because he did not and could not consider this issue Further, counsel for Respondent, fol- lowing this arbitration, attempted to play the accord and satisfaction scenario utilized regarding its contractually required fund payments, supra footnote 21. The Union, here, too, made clear that it would not accept partial payment as full satisfaction. (See Jt. Exh. 18.) On this record, there is no accord and satisfaction of a disputed obligation. Instead, the Employer was continuing in its effort to give the Union the runaround and ignore its contractual obligations, in violation of Section 8(a)(5) and (1) of the Act.23 Finally, after the expiration of the contract on June 30, 1984, the Employer repeatedly made unilateral changes in terms and conditions of employment Thus, on July 2, management apprised the unit employees that the Union contract has terminated, this is "our first workday with- out the interference of a Union"; "a five percent wage increase became effective on July 1"; "we are committed to restoring the 40-hour work week", and "together and without Union intervention we can survive." (Jt. Exh. 32, emphasis in text.) And, as stipulated, the Employer made no further payments to the training and legal services funds. (See Jt Exh 1, pp 6, 9-10.) In addition, the Em- ployer ignored contractual provisions and existing terms and conditions of employment pertaining to layoffs by seniority and, consequently, laid off employees Clifford Johnson, Vernie Voreen, and Geneva Roberson "without notification to the Union and not in accordance with the seniority provisions." (Jt. Exh. 1, p. 9.) Moreover, the Employer, contrary to contractual provisions and exist- ing conditions,, refused to process a grievance filed by the Union regarding the termination of employee Inez Moss (Jt Exh 1, p. 10.) All these changes in conditions of employment were without notice to and bargaining with the Union. The unilateral granting of wage increases, the refusal to make the fringe benefit payments, the refusal to follow the layoff provisions, and the refusal to comply with the grievance procedures are here contrary to the Employ- er's obligation to bargain in good faith with the Union. See, e.g., NLRB v Katz, 369 U.S. 736 (1962); Stone Boat Yard, 264 NLRB 981 (1982); Flex Plastics, 262 NLRB 651, 656-658 fn.2 (1982); and cases cited. The Employer argues (Br. 105-115), inter alia, that the "results" of the May 16 election "created a good faith doubt as to the Union's continuing majority status"; and, further, "the filing of a decertification petition eliminated any obliga- tion . . . to negotiate " First, the decertification petition was admittedly signed by significantly less than half the unit employees Second, the slim majority in the election, when assessed in the context of management 's 8(a)(1), (3), and (5) violations as detailed above, can only be viewed as the tainted results of threats, coercion, re- straint and discrimination. The Employer's intensive, un- lawful campaign caused this cited employee disaffection from the bargaining agent. See C & C Plywood Corp., 163 NLRB 1022, 1023 (1967) In sum, the Employer violated Section 8(a)(5) and (1) of the Act by unilaterally chang- ing these terms and conditions of employment, without first bargaining with the Union.24 22 In this setting, I would view Supervisor Stanley's instructions to employee Chambers to take an antiunion pamphlet and distribute the rest to her coworkers as tending to interfere with employee Sec 7 activities Chambers could either show her union support or refuse to do so Cham- bers decided instead to "walk away " In the context of management's 8(a)(1), (3), and (5) conduct, detailed above, I therefore find this form of interrogation also to be coercive 23 In this context, Supervisor Plotkin's statement to employees, follow- ing the election, that they would be reimbursed for withheld dues was, in effect, a promise of benefit calculated to cause disaffection from the Union, in violation of Sec 8(a)(l) of the Act Such conduct tended to impinge on employee Sec 7 rights I note further that, although the summary removal by the Employer of the union bulletin board on the day following the election is not separate- ly alleged in the consolidated amended complaint, the pertinent facts are undisputed, were fully litigated, and are sufficiently encompassed within par 21 of the complaint CONCLUSIONS OF LAW 1. District 1199C and Local 473 (collectively the Union) are labor organizations as alleged. 2. Respondent Hospital is an employer engaged in commerce and a health care institution as alleged 3. The Union has been since about July 1, 1982, and is, the exclusive bargaining representative of the Hospital's employees in the following appropriate unit: 24 in this context, Supervisor Sams' warning to prounion employee Mobley that, in effect, the Employer was no longer required to follow seniority provisions for layoff and that the employee might not get an- other evaluation, tended to interfere further with this employee's Sec 7 rights ST AGNES MEDICAL CENTER 259 All full-time and regular part-time service and main- tenance employees, telemetry technicians, burn technicians, phlebotomists technicians, LPN's by waiver and ICU technicians employed by St Agnes Medical Center at its 1900 South Broad Street, Philadelphia, Pennsylvania facility, excluding all other employees including professional employees, technical employees, LPGN's, RN's, office clericals, guards and supervisors as defined in the Act 4. The Hospital violated Section 8(a)(1) and (3) of the Act by maintaining a rule that precludes the unauthor- ized solicitation of employees on its premises for any purpose; by maintaining a rule that precludes the distri- bution of nonwork related materials without prior ap- proval of the Hospital; by soliciting an employee to dis- tribute the Hospital's antiunion campaign literature to fellow employees; by coercively interrogating an em- ployee about her union sympathies; by promising em- ployees that their previously reduced hours would be re- stored in order to discourage them from supporting the Union; by promising to reimburse employees for deduct- ed union dues in order to discourage them from support- ing the union ; by threatening an employee with layoff because of his union activity and by threatening the em- ployee with layoff in disregard of established seniority and layoff policies; by discriminatorily informing em- ployee Porter that she was being watched, changing her lunch and breaktimes, escorting her whenever she left her department, including escorting her to the toilet, and changing her job assignment so as to restrict and confine her to her department, in order to discourage protected union activities; and by discriminatorily suspending em- ployee James in order to discourage protected union ac- tivities. 5. The Hospital violated Section 8(a)(5) and (1) of the Act. by, from on or about May 9, 1984, failing to contrib- ute to the Union's training fund on behalf of the unit em- ployees and failing to submit the required reports to the fund as required by the collective-bargaining agreement; by from about May 9, 1984, similarly failing to contrib- ute to the legal services fund on behalf of the unit em- ployees and failing to submit the required reports to the fund, by failing and refusing to transmit to the union dues deducted from unit employees' wages for the months of April, May, and June 1984 as required by the collective-bargaining agreement; by imposing restrictions on the Union's contractual right of access to the Hospital by refusing access, changing locks on a bulletin board, and removing the bulletin board, by unilaterally continu- ing to fail to contribute to the training fund and legal services fund; by promulgating and maintaining written "guidelines for disciplinary action" in conflict with the collective-bargaining agreement; by unilaterally imple- menting a wage increase for unit employees; by unilater- ally laying off employees Johnson, Vereen, and Rober- son in violation of job seniority layoff procedures; and by unilaterally failing and refusing to process a grievance filed by the Union concerning employee Moss in accord- ance with grievance procedures. 6. The Hospital, as discussed in the remedy section of this decision, has interfered with and prevented the hold- ing of a fair and free election on May 16, 1984, thus re- quiring the results of that election to be set aside. 7. The unfair labor practices found above affect com- merce as alleged. REMEDY Respondent Hospital has been found to have violated Section 8(a)(1), (3), and (5) of the Act. It will be directed to cease and desist from engaging in such unlawful con- duct or like or related conduct and to post the attached notice. Affirmatively, to effectuate the purposes and poli- cies of the Act, it will be directed to rescind and abro- gate its unlawful no-solicitation/no-distribution rules. It will be directed to, insofar as it has not already done so, make whole employees Porter and James for any loss of earnings that they may have suffered as a result of the Hospital's discriminatory action against them, by paying to them a sum of money equal to that which they would have earned but for the Hospital's discriminatory action, less any net earnings during this period, to be computed in the manner described in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed as set forth in Florida Steel Corp., 231 NLRB 651 (1977), 25 and to remove from its files any reference to these discipli- nary actions, in accordance with Sterling Sugars, 261 NLRB 472 (1982) It will be directed to, insofar as it has not already done so, make the required contributions to the union training and legal service funds and to remit to the Union deducted dues, together with the related re- ports, as found here. It will be directed to restore the Union's bulletin board that it unlawfully removed. It will be directed to, insofar as it has not already done so, offer immediate and full reinstatement to employees Johnson, Vereen, and Roberson to their former jobs or, in the event their jobs no longer exist, to substantially equiva- lent jobs, make them whole for any loss of earnings that they may have sustained as a result of the Hospital's un- lawful refusal to follow its seniority layoff procedures, less net interim earnings together with interest as provid- ed above, and to comply with these and related seniority layoff procedures. It will be directed to process the grievance pertaining to the discharge of employee Moss in accordance with the grievance procedures. And, it will be directed to rescind and abrogate its unlawfully adopted and maintained guidelines for disciplinary action. There remains for consideration, whether the May 16 decertification election results should be set aside, and whether a rerun election should be directed, or whether, instead, the decertification petition should be dismissed and a bargaining order entered. The Union filed timely objections to the Hospital's preelection misconduct In- cluded within this objectionable conduct was the Hospi- tal's discriminatory confinement of Union Representative Porter, including management's following her to the toilet. Management's discriminatory treatment of Porter was widely publicized among the unit employees. Like- wise, the Employer's related objectionable conduct in- cluded its discriminatory suspension of Union Represent- 25 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ative James in order to further discourage union activi- ties This discriminatory conduct was also widely publi- cized among unit personnel . And, the Employer's suc- cessful unlawful effort to deter union supporter Mobley from distributing literature was objected to and made known to the unit workers . See also Supervisor Plotkin's repeated coercive and unlawful preelection misconduct. These acts of misconduct cannot, on this record , be char- acterized as de minirnis or insignificant . On the contrary, because of the Employer's slim majority in the May 16 election, it is clear, and I find, that the Hospital, by this misconduct, interfered with and prevented the holding of a fair and free decertification election . The election re- sults should therefore be set aside.26 For a period covering months, management engaged in extensive and widespread acts of threats, coercion, in- terference, and discrimination. It repeatedly ignored its statutory bargaining obligation to the Union, flagrantly stalling and refusing to comply with clear contractual provisions and existing procedures . Management engaged in this extensive and widespread campaign in an attempt to undermine and rid itself of the Union . Thus, it dis- criminated against Union Representative Porter , follow- ing her even to the toilet, it discriminated against Union Representative James, belatedly admitting after the elec- tion its "unjust " conduct ; it threatened and coerced prounion employee Mobley and his coworkers ; it main- tained overly broad no-solicitation/no-distribution rules; it promised employees improved benefits to discourage their union support; it stalled, delayed, and refused to make required fund contributions and remit deducted union dues ; it restricted the Union's access to the Hospi- tal contrary to contract provisions and practice ; it pro- mulgated and maintained disciplinary guidelines in con- flict with the Union's contract, it unilaterally implement- ed a wage increase for the unit employees ; it laid off em- ployees in violation of seniority layoff procedures; and it refused to process grievances in accordance with griev- ance procedures. These and related acts of misconduct were participated in by upper management and affected all unit employees . The lingering effect of such massive misconduct cannot be dissipated by traditional remedies. A fair and free rerun election, under these circumstances, cannot be conducted And, of course , it is the Employer who has prevented the future holding of such a fair and free rerun election . Under all these circumstances, a bar- gaining order is the only reasonable means of restoring the status quo and remedying the Employer's pervasive misconduct See, e g. Flex Plastics, supra; NLRB v. Gissel 26 Counsel for the General Counsel acknowledges in his brief (Br 33- 34) that Supervisor Plotkin's unlawful preelection statements "were not specifically alleged in the objections," however, Plotkin's "conduct was uncovered during the investigation of the Union 's objections and there is no reason to believe that the Union knew of the conduct at the time it filed the objections " Cf Burns Security Services, 256 NLRB 959, 960 (1981) [revoked by 271 NLRB 349 (1984)] Under all the circum- stances, I would not bar this objection as improper or untimely In any event, even if Plotkin's coercive conduct were not suffic iently included within the Employer's alleged objectionable conduct, I would still find, on this record, that the Employer, by its remaining objectionable con- duct-its coercive and discriminatory treatment of prounion employees Porter, James, and Mobley -interfered with the holding of a fair and free election Packing Co., 395 U.S. 575 (1969); NLRB v. Sertafilm, supra. In sum, the election results in Case 4-RD- 1172 should be vacated and set aside; that proceeding should be dis- missed ; and the Employer should be directed to, on re- quest, bargain in good faith with the Union and, if an un- derstanding is reached, embody that understanding in a signed agreement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed27 ORDER The Respondent, St. Agnes Medical Center, Philadel- phia, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining a rule that precludes the unauthorized solicitation of employees on the Hospital's premises for any purpose (b) Maintaining a rule that precludes the distribution of nonwork related materials without prior approval of the Hospital. (c) Soliciting employees to distribute the Hospital's an- tiunion literature to fellow employees. (d) Coercively interrogating employees about their union sympathies. (e) Promising employees that their previously reduced hours will be restored in order to discourage them from supporting the Union. (f) Promising to reimburse employees for their deduct- ed union dues in order to discourage them from support- ing the Union. (g) Threatening employees with layoff because of their union activities and threatening them with layoff in disre- gard of established seniority and layoff policies. (h) Discouraging membership in District 1199C, Na- tional Union of Hospital and Health Care Employees, Division of RW DSU, AFL-CIO, Jointly with Interna- tional Brotherhood of Firemen and Oilers, Local 473, AFL-CIO (collectively the Union), by discriminatorily informing employees that they are being watched, changing their lunch and breaktimes, escorting them whenever they leave their department, including escort- ing them to the toilet , and changing their job assign- ments to restrict and confine them to their department and, further, by discriminatorily suspending employees. (i) Failing and refusing to bargain in good faith with the Union as the exclusive bargaining agent of its em- ployees in the following appropriate unit by failing to contribute to the Union's training fund on behalf of the unit employees and failing to submit the required reports to the fund as required by the collective-bargaining agreement ; by similarly failing to contribute to the legal services fund on behalf of the unit employees and to submit the required reports to the fund; by failing and re- 27 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 ST. AGNES MEDICAL CENTER fusing to transmit the union dues deducted from unit em- ployees' wages for the months of April, May, and June 1984 as required by the collective-bargaining agreement; by imposing restrictions on the Union's contractual right of access to the Hospital by refusing access , changing locks on a bulletin board , and removing the bulletin board; by unilaterally continuing to fail to contribute to the training fund and legal services fund ; by promulgat- ing and maintaining written "guidelines for disciplinary action" in conflict with the collective-bargaining agree- ment; by unilaterally implementing a wage increase for unit employees; by unilaterally laying off employees Johnson, Vereen, and Roberson in violation of job se- niority layoff procedures ; and by unilaterally failing and refusing to process a grievance filed by the Union con- cerning employee Moss in accordance with grievance procedures. The appropriate bargaining unit is, as fol- lows: All full-time and regular part-time service and main- tenance employees, telemetry technicians, burn technicians, phlebotomists technicians, LPN's by waiver and ICU technicians employed by St. Agnes Medical Center at its 1900 South Broad Street, Philadelphia, Pennsylvania facility; excluding all other employees including professional employees, technical employees, LPGN's, RN's, office clericals, guards and supervisors as defined in the Act. (j) 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) Rescind and abrogate its no-solicitation/no-distribu- tion rules found unlawful in this decision. (b) Insofar as it has not already done so , make whole employees Porter and James for any loss of earnings that they may have suffered as a result of the Hospital's dis- criminatory action, with interest, found unlawful in this decision, in the manner set forth in this decision. (c) Remove from its files any reference to the discipli- nary actions against employees Porter and James and notify them in writing that this has been done and that evidence of these unlawful disciplinary actions will not be used as a basis for future personnel actions against them. (d) Insofar as it has not already done so, make the re- quired contributions to the union training and legal serv- ice funds and remit to the Union deducted dues, together with the related reports, as provided in this decision. (e) Restore the union bulletin board, as provided in this decision. (f) Insofar as it has not already done so, offer immedi- ate and full reinstatement to employees Johnson , Vereen, and Roberson to their former jobs or, in the event their former jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges. Make them whole for any loss of earnings they may have sustained as a result of the Hospital's un- lawful refusal to follow its seniority layoff procedures, 261 with interest, as provided in this decision , and comply with these and related seniority layoff procedures. (g) Process the grievance pertaining to the discharge of employee Moss in accordance with the grievance pro- cedures. (h) Rescind and abrogate its unlawfully adopted and maintained guidelines for disciplinary action, as found in this decision. (i) On request, bargain in good faith with the Union as the exclusive bargaining representative of its employees in the above appropriate unit and , if an understanding is reached, embody that understanding in a signed agree- ment. (j) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (k) Post at its Philadelphia, Pennsylvania facility copies of the attached notice marked "Appendix."28 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative , 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 Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (1) 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 FURTHER RECOMMENDED that the election con- ducted on May 16, 1984, in Case 4-RD-1172 be vacated and set aside, and the proceedings filed therein be dis- missed. 28 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 " 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 maintain a rule that precludes the unau- thorized solicitation of employees on the Hospital's premises for any purposes; maintain a rule that precludes the distribution of nonwork-related materials without prior approval of the Hospital; solicit employees to dis- tribute the Hospital's antiunion literature to fellow em- ployees; coercively interrogate employees about their 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union sympathies; promise employees that their previous- ly reduced hours will be restored in order to discourage them from supporting the Union; promise to reimburse employees for their deducted union dues in order to dis- courage them from supporting the Union; or threaten employees with layoff because of their union activities and threaten them-with layoff in disregard of established seniority and layoff policies. WE WILL NOT discourage membership in District 1199C, National Union of Hospital and Health Care Em- ployees, Division of RWDSU, AFL-CIO, Jointly, with International Brotherhood of Firemen and Oilers, Local 473, AFL-CIO, by discriminatorily informing employees that they are being watched, changing their lunch and breaktimes, escorting them whenever they leave their de- partment, including escorting them to the toilet, and changing their job assignments so as to restrict and con- fine them to their department and, further, by discrimina- torily suspending employees. WE WILL NOT fail and refuse to bargain in good faith with the Union as the exclusive bargaining agent of our employees in the following appropriate unit by failing to contribute to the Union's training fund on behalf of the unit employees and to submit the required reports to the fund as required by the collective-bargaining agreement; by similarly failing to contribute to the legal services fund on behalf of the unit employees and to submit the required reports to the fund; by failing and refusing to transmit the union dues deducted from unit employees' wages for the months of April, May, and June 1984 as required by the collective-bargaining agreement; by im- posing restrictions on the Union's contractual right of access to the Hospital by refusing access, changing locks on a bulletin board and removing the bulletin board; by unilaterally continuing to fail to contribute to the said training fund and legal services fund; by promulgating and maintaining written "guidelines for disciplinary action" in conflict with the collective-bargaining agree- ment; by unilaterally implementing a wage increase for unit employees; by unilaterally laying off employees Johnson, Vereen, and Roberson in violation of job se- niority layoff procedures; and by unilaterally failing and refusing to process a grievance filed by the Union con- cerning employee Moss in accordance with grievance procedures. The appropriate bargaining unit is as fol- lows: All full-time and regular part-time service and main- tenance employees, telemetry technicians, burn technicians, phlebotomists technicians, LPN's by waiver and ICU technicians employed by St. Agnes Medical Center at its 1900 South Broad Street, Philadelphia, Pennsylvania facility; excluding all other employees including professional employees, technical employees, LPGN's, RN's, office clericals, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind and abrogate the no-solicitation/no- distribution rules found unlawful in the Board' s decision. WE WILL, insofar as we have not already done so, make whole employees Porter and James for any loss of earnings they may have suffered as a result of the Hospi- tal's discriminatory action, with interest, found unlawful in this decision, in the manner set forth in the decision. WE WILL remove from our files any reference to the disciplinary actions against employees Porter and James and notify them in writing that this has been done and that evidence of these unlawful discriminatory actions will not be used as a basis for future personnel actions against them. WE WILL, insofar as we have not already done so, make the required contributions to the Union' s training and legal service funds and remit to the Union deducted dues, together with the related reports, as provided in the decision. WE WILL restore the union bulletin board, as provided in the decision. WE WILL, insofar as we have not already done so, offer immediate and full reinstatement to employees Johnson, Vereen, and Roberson to their former jobs or, in the event their former jobs no longer exist, to substan- tially equivalent jobs, without prejudice to their seniority or other rights and privileges, make them whole for any loss of earnings they may have sustained as a result of the Hospital's unlawful refusal to follow its seniority layoff procedures, with interest, as provided in the deci- sion, and comply with these and related seniority layoff procedures. WE WILL process the grievance pertaining to the dis- charge of employee Moss in accordance with the griev- ance procedure. WE WILL rescind and abrogate our unlawfully adopted and maintained guidelines for disciplinary action, as found in the decision. WE WILL, on request, bargain in good faith with the Union as the exclusive bargaining representative of our employees in the above appropriate unit and, if an under- standing is reached, embody that understanding in a signed agreement. ST. AGNES MEDICAL CENTER