Los Alamitos Medical Center

LOS ALAMITOS MEDICAL CENTER 415 National Medical Hospital of Orange Inc. d/b/a Los Alamitos Medical Center and Los Alamitos Registered Nurses' Association, affiliated with United Nurses' Association of California. Cases 21-CA-18465 and 21-CA-19814 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFr On 18 October 1984 Administrative Law Judge Gerald A. Wacknov issued the attached decision. Both the General Counsel and the Respondent filed exceptions and supporting briefs; the Respondent filed an answering brief to the General Counsel's exceptions. 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, and conclusions only to the extent consistent with this Decision and Order, and to adopt the recommend- ed Order based on the following rationale. The complaint alleges that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by refusing to bargain with and withdrawing recognition from the Union and by unilaterally changing the carrier for its life and dental insurance and by unilaterally increasing its dental benefits and Section 8(a)(1) by initiating and aiding in the circulation of decertifi- cation petitions. In its answer to the complaint and in its excep- tions, the Respondent interposed affirmative de- fenses. It alleged, inter alia, that the Union was dis- qualified, under the Board's decision in Sierra Vista Hospital,' from serving as the exclusive bargaining representative of unit employees due to the active participation of supervisory personnel in the Union; and that therefore the Respondent was under no obligation to bargain with the Union. The General Counsel urged the rejection of the Respondent's Sierra Vista defense on the ground that the issue was fully litigated and resolved in a prior related representation proceeding.2 The judge recommended that the complaint be dismissed. He reasoned that the Respondent's with- drawal of recognition from the Union was based on its receipt of nontainted decertification petitions 1 241 NLRB 631 (1979). 2 In Case 21-RC-12866 the Respondent filed a motion to revoke certi- fication. It alleged therein that the Union was disqualified under the Sierra Vista doctrine from representing its employees. As discussed infra, the Regional Director denied the motion, and the Board denied the Re- spondent's request for review of the Regional Director's decision. signed by a clear majority of uncoerced unit em- ployees. He found that the Respondent did not un- lawfully assist in the preparation and circulation of the decertification petitions. Further, according to the judge, the Respondent did not act in the con- text of contemporaneous unfair labor practices. To that effect, the judge found that no violation was committed by the Respondent's unilateral change in the dental and life insurance plans. The judge reasoned that the change of carriers was not a sig- nificant concern to the Union and there was no change in benefits to unit employees. The judge, in footnote 7 of his decision, conclud- ed, inter alia, that he need not resolve the issue concerning the lawfulness of the Respondent's withdrawal of recognition based on the authority of Sierra Vista and progeny. We disagree. We find that the Sierra Vista question is a threshold issue that must be resolved. By a letter of 3 March 1980,3 the Respondent withdrew recognition from the Union and ceased bargaining based, in part, on the alleged participa- tion of its statutory supervisors in the collective- bargaining process on behalf of the Union. Thereaf- ter, the Respondent filed a motion to revoke certi- fication alleging that its head nurses Carolyn Burke and Barbara Skinner served both as supervisors and principal officers of the Union and members of its negotiating team. Thus, the Respondent contended that, under the Board's Sierra Vista doctrine, the Union suffered a disqualifying conflict of interest and thus could not represent the Respondent's em- ployees. The Regional Director's denial of the motion to revoke, upheld by the Board, was premised on events occurring after the Respondent's withdrawal of recognition. That is, the Regional Director rea- soned the resignations of Burke and Skinner-oc- curring on 5 March-from their positions in the Union served to moot or cure the Union's disquali- fying conflict of interest. Contrary to the General Counsel, the Board's decision in Case 21-RC- 12866 does not preclude a finding, nor is the Re- spondent prevented from asserting, that the Re- spondent was privileged to withdraw recognition on 3 March 1980. Stated otherwise, the Union's ability to cure a defect in its status prior to the Re- gional Director's ruling on the motion to revoke may not serve to render retroactively unlawful the Respondent's prior lawful actions. Accordingly, the critical issue before us is whether, on and before 3 March 1980, the Union was precluded by Sierra Vista from representing the Respondent's 3 Unless otherwise noted, all dates hereinafter refer to 1980. 287 NLRB No. 44 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees, thereby excusing the Respondent's withdrawal of recognition. As of 3 March, with regard to the Union, Burke was the president and Skinner served as vice presi- dent. They were the sole employee-members of the Union's bargaining team. Thus, Burke and Skinner actively participated in collective-bargaining ses- sions with the Respondent. Burke had responsibility for, inter alia, conduct- ing meetings, dues collection, grievances, collec- tive-bargaining procedures, and implementation. She handled grievances as a member of the Union's grievance committee. Skinner, as the Union's vice president, acted as backup for President Burke. She also served on the Union's grievance committee and helped rewrite the Union's constitution. As of 3 March, with regard to the Respondent, Burke and Skinner were employed by the Re- spondent as head nurses.4 Based on the following, we find that Burke and Skinner, as head nurses, were supervisors within the meaning of Section 2(11) of the Act. Both Burke and Skinner exert 24-hour responsi- bility over nursing employees in their wings not- withstanding their respective assignments to the day shift. Although both make team assignments correlating patient needs with employee skills, nei- ther is normally assigned to a team, nor spends much time on direct patient care. Both have effec- tively recommended terminations and Skinner has effectively recommended hiring. Both have the au- thority and responsibility to evaluate nursing de- partment employees. The evaluations, signed by either Burke or Skinner, include both annual and 90-day reviews with recommendations regarding permanent status; the evaluations directly affect re- ceipt of merit increases . Both have effectively rec- ommended promotions and Skinner has approved transfers into her wing. Burke and Skinner inde- pendently issue verbal and written warnings (coun- selings) to nursing department employees which become part of their personnel file. Although the director of nursing also signs some of the warnings, there is evidence that she generally does not con- duct an independent investigation. The warnings issued by Burke and Skinner frequently involve en- forcement of the Respondent's personnel policies. The record establishes that warning notices have been issued for infractions of rules of conduct such as absenteeism , excessive personal phone calls, and poor attitude, and that such notices may lead to disciplinary action or termination. Moreover, the written warnings were not merely a minor form' of discipline. Several terminations were based thereon. Furthermore, both Burke and Skinner regularly attend supervisory meetings where personnel poli- cies and procedures are discussed. They have also participated on the Respondent's Policy and Proce- dure and Products and Equipment Committees, which include various head nurses, area supervi- sors, the head supervisor, patient care coordinator, and in-service director. Both have prepared job de- scriptions for nursing employees, received' manage- ment training, and accrue larger salaries than other nurses. In view of the foregoing and the record as a whole, we find that both Burke, head nurse east wing, and Skinner, head nurse west wing, exercise authority in the interest of the Respondent that re- quires the use of independent judgment. In making this finding we emphasize that their authority ex- tends to the enforcement of , the Respondent's major personnel policies and is not merely an out- growth of their training and primarily incident to patient care.5 We therefore conclude that Burke and Skinner are supervisors within the meaning of Section 2(11) of the Act. In Sierra Vista, the Board, in discussing those sit- uations in which the participation of a supervisor in a labor organization might operate to disqualify the labor organization from bargaining, stated as fol- lows: This potential for disqualification stems from an inherent statutory concern that "[e]m- ployees have the right to be represented in collective-bargaining negotiations by individ- uals who have a single-minded loyalty to their interests," and the identity and role of supervi- sors admitted to membership in a labor organi- zation can, in certain circumstances, compro- mise that statutory interest. Thus, active par- ticipation in the affairs of a labor organization by supervisors employed by the employer with whom that labor organization seeks to bargain can give rise to question, about the labor orga- nization's ability to deal with the employer at arm's length. Central factors involved in con- sidering this issue are the employees' right to a collective-bargaining representative whose un- divided concern is for their interests and the employer's right to expect loyalty from its own supervisors. Active participation by the employer's own supervisors may, in a given case, contravene either or both of these legiti- mate interests. Indeed, we have held that an ° In denying the Respondent's request for review in Case 21-RC- 12866, the Board noted that "no finding is made herein as to the supervi- sory status of the Respondent 's head nurses " 5 See Wedgewood Health Care, 267 NLRB 525 (1983), and Pine Manor Nursing Center, 270 NLRB 1008 (1984) LOS ALAMITOS MEDICAL CENTER employer has a duty to refuse to bargain where the presence of that employer's supervi- sors on the opposite side of the bargaining table poses a conflict between those interests. [Footnotes omitted.] [241 NLRB 632-633.1 Applying the teachings of Sierra Vista to the case before us, we find that the active participation of the Respondent's supervisors in the affairs of the Union created a clear and present danger of a con- flict of interest. It is particularly significant that Su- pervisors Burke and Skinner had substantial collec- tive-bargaining functions emanating from their of- fices in the Union. Thus, on and before 3 March, the Union was disqualified from representing the Respondent's employees. 6 Accordingly, the Respondent's withdrawal of recognition on 3 March did not violate Section 8(a)(5) and (1) of the Act.7 We shall adopt the judge's recommendation that the complaint be dis- missed in its entirety. Even if the Union had not been disqualified on the basis of the active participation of supervisors in its collective-bargaining responsibilities, we would find that the Respondent's withdrawal of recognition was justified on the basis of the decerti- fication petition circulated by Boggess. We affirm the judge's findings made essentially on credibility grounds that the Respondent did not violate the Act by promising benefits to the employees to en- courage them to sign a petition repudiating the Union. Further, for the reasons stated by the judge, we find that the decertification petition was not tainted. Boggess was not a supervisor. Further- more, he was plainly regarded by everyone as a member of the bargaining unit and, under the cir- cumstances here, his involvement in circulating the petition would not have tainted it even if he had been a supervisor. See, e.g., Hydro Conduit Corp., 254 NLRB 433 (1981). Hence, contrary to the con- tentions of the General Counsel, the mere fact that the Respondent had erroneously described Boggess as a supervisor did not provide any basis on which his fellow employees could reasonably have as- sumed that he was circulating the petition on behalf of the Respondent. B Nor can we find that the participation of United Nurses Association of California (UNAC) in the collective bargaining served to remove the disqualifying conflict of interest The General Counsel views UNAC as a "joint representative " The Respondent contends that Los Alamitos Reg- istered Nurses' Association (LARNA) alone represented the employees and that UNAC was merely the parent organization with which LARNA was affiliated In either event , the role of Supervisors Burke and Skinner in the bargaining process was sufficient to create a disqualifying conflict of interest ' We also find that because the same disqualifying conflict-of-interest conditions were present in July 1979 when the unilateral change was made, that allegation as well is properly dismissed on the Sierra Vista ground 417 Having found that Boggess' circulation of the petition did, not taint it and having found that the unfair labor ,practice allegations regarding the uni- lateral changes and the promises of benefits in con- nection with the decertification petition were prop- erly dismissed, we find that the petition was un- tainted. Because it contained the signatures of more than 50 percent of the bargaining unit, it provided an independent basis for the Respondent's with- drawal of recognition on 3 March 1980. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. a We need not pass on the judge's conclusion that the unilateral change allegation did not not state a violation because the change was not suffi- ciently significant In any event , even assuming, contrary to the judge, that the change amounted to a violation of Sec 8(a)(5) of the Act, we would not find that it was sufficiently serious to taint the decertification petition See BASF Wyandotte Corp, 276 NLRB 1576, 1576-1577 (1985) Furthermore, we note that the timing of the decertification effort and the unilateral change are not suggestive of a connection between the two According to Boggess' credited testimony, he was first moved to explore the possibility of seeking decertification in early July 1979-before the Respondent's 26 July announcement of the unilateral change Boggess also testified that he held off on circulating a decertification petition once he realized that the parties were engaged in collective bargaining for a contract and did not carry through on the effort until January 1980, when he decided that the negotiations were not proving productive That was more than 5 months after the unilateral change Robin Kubicek and Jill Glosser, Esqs., for the General Counsel. Naomi Young, Esq. (Littler, Mendelson, Fastiff & Tichy), of Los Angeles, California, for the Respondent. Herbert M. Ansell, Esq. (Levy, Ansell & Goldman), of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE GERALD A WACKNOV, Administrative Law Judge Pursuant to notice, a hearing with respect to this matter was held before me in Los Angeles, California, on May 29, 30, and 31, and June 1, 5, 6, and 7, 1984. The initial charge,in Case 21-CA-18465 was filed on December 6, 1979, by Los Alamitos Registered Nurses' Association 'af- filiated with United Nurses' Association of • California (the Union) An amended charge was filed on December 17, 1979, and a second amended charge was filed on March 12, 1980. The charge in Case 21-CA-19814 was filed by the Union on December 12, 1980. On December 29, 1982, the Regional Director for Region 21 of the National Labor Relations Board (the Board) issued a consolidated complaint and notice of hearing in the captioned cases. Thereafter, on September 30, 1983, the Regional Di- rector for Region 21, of the Board issued an amended consolidated complaint and notice of hearing alleging a violation by National Medical Hospital of Orange, Inc. d/b/a Los Alamitos General Hospital (Respondent) of 418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). On December 29, 1983, an amendment to the amended consolidated complaint was' issued. Re- spondent's answers to the pleadings were timely filed and deny the commission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel, counsel for Respondent, and counsel for the Charging Party. On the entire record, and based on my observation of the witnesses and consideration of the brief submitted, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is. a California corporation engaged in the operation of a general acute care hospital in Los Alami- tos, California. In the course and conduct of its business operations the Respondent performs service valued in excess of $250,000 and purchases and receives goods and supplies valued in excess of $5000 from suppliers located outside the State of California. It is admitted, and I find, that Respondent is, and has been at all times material, an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is, and has been at all times material , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issue raised by the pleadings is whether the Respondent's withdrawal of recognition from the Union was motivated by a good-faith doubt that the Union continued to represent a majority of employees in the established appropriate unit. B. The Facts 1. Changes in benefits The Respondent, an admitted successor employer, pur- chased and began operating the hospital about May 1, 1979, during the term of collective-bargaining agreement between the predecessor employer and the Union ex- tending from July 1, 1978, to June 30, 1981. On July 26, 1979, Respondent issued an interoffice memorandum to all unit employees, namely registered nurses,' signed by Henry A. Mordah, administrator, ad- r The unit for collective bargaining is described as follows All registered nurses employed by Respondent at the facility, exclud- ing all other employees, director of nursing, assistant director of nursing, OB supervisor, OR supervisor, ICU-CCU supervisor, 7 a in to 3 p.m. supervisor, 3 p in to I l p m supervisor, I1 p in to 7 a in supervisor, office clerical employees, guards, watchmen and all other supervisors as defined in the Act - wising that effective August 1, 1979, the hospital would be changing the employees' dental and life insurance coverage to carriers that also insure its employees at other facilities, that there would be no reduction in life insurance benefits, and that the dental insurance benefits would be increased with no change in the cost for cover- age of one dependent, and a substantial reduction in cost for coverage of two or more dependents. The monthly cost to the employee for either dependent coverage would be $8.44. Pursuant to the contract, the cost of dental insurance and $5000 worth of life insurance for each unit employee is paid by the Respondent. However, unit employees are required by the contract to pay for dental insurance dependent coverage. On the same date, Mordah issued an interoffice memo- randum to "All employees except registered nurses" ad- vising them of the same changes in insurance carriers and coverage, and further stating that the monthly cost for dental insurance dependent coverage would be $5.90, rather than $8.44 that the unit employees were required to pay. 2. Negotiations By letter, August 27, 1979, the Union advised the hos- pital of certain "actions which violate the negotiated intent and provisions of the labor agreement now in effect," and demanded "an immediate reopening of col- lective bargaining to negotiate an equitable resolution" of certain areas of concern, namely, the dental plan, life in- surance, AD & D, shift differential, and wages. The letter further states that "this listing of issues may need to be expanded provided the employer, through its ac- tions, identifies additional areas of concern to the Regis- tered Nurses." A meeting was held on September 10, 1979, during which the Respondent acknowledged, inter alia, its bar- gaining obligation and advised that it had no intention of assuming the collective-bargaining agreement between the Union and the predecessor, but rather invited the Union to present contract proposals so that negotiations for a new agreement could commence. Regarding the changes in the life insurance carrier and in the dental carrier and benefits, the hospital took the following position, as embodied in a letter dated Septem- ber 14, 1979, from J. Richard Thesing, Respondent's at- torney, to the Union, confirming the discussion on Sep- tember 10, 1979: 5. Implementation of NME benefits for nonbargain- ing unit employees. When I asked what NME actions had violated the intent of the agreement as stated in your letter of August 29, 1979, the only response concerned the fact that when the Hospital implemented NME's dental insurance, the dependent premium was more for the [registered] nurses than for other employees. As I explained, I believe the Hospital's legal obligation is to maintain the same benefits and conditions as existed under the prior ownership. It would be an unfair labor practice for the Hospital to either increase or decrease the existing benefits. LOS ALAMITOS MEDICAL CENTER 419 When the Hospital implemented the NME dental plan, the Hospital maintained the same dependent premium as existed under the prior plan. Actually, the dependent premium is more than the $8.55 [sic] which is being charged the Registered Nurses and the Hospital is absorbing the balance Also, the ben- efits under the NME plan are slightly greater. We further advised you that an announcement will soon be made that the NME pension plan will be made available to all employees, except the Reg- istered Nurses Again, there is no intent to penalize the Registered Nurses. Rather, all these matters will be subject to negotiation, and it would be illegal for the Hospital to implement any of these new benefits for the Registered Nurses without prior negotia- tions. The subject of decertification was also discussed at the meeting, and Thesing also mentioned this in the afore- mentioned letter, as follows. 6. Decertification. Finally, during the course of the Monday meet- ing, the statement was made from your side of the table that there was a lot of discussion by the nurses of decertification. Then, the accusation was made that Mr. Mordah was responsible for these discus- sions. This is not the case. Mr. Mordah has not had even one conversation with a single Registered Nurse regarding decertification. If the nurses are discussing decertification, I pre- sume they must be dissatisfied with their representa- tion. Whether the nurses decertify is a question for the nurses themselves to decide. The Hospital will continue its legal obligation to recognize and bar- gain with the Union, unless we are advised that a majority of nurses no longer desire to be represent- ed by the Union The Union replied on September,27, 1979, indicating, inter alia, that it desired to commence contract negotia- tions for a new collective-bargaining agreement, and that all improvements instituted in dental and life insurance benefits to nonunit employees also be provided to unit employees in advance of negotiations. Regarding the latter request, Thesing replied by letter dated October 4, 1979, as follows- With regard to item number three, it is correct that the dental insurance and life insurance package for the non-bargaining unit personnel of the Hospital is superior to that of the Registered Nurses in several respects However, there is nothing illegal, immoral or improper with this, and it is quite common in sit- uations where one group of employees is represent- ed by a union and other employees are not repre- sented by a union. The insurance program for regis- tered nurses will be part of the overall bargaining, and the Hospital does not intend to make any changes with regard to the registered nurses' insur- ance package without first reaching a complete and total agreement regarding all matters of wages, hours and working conditions. The Union's attorney, Herbert M Ansell, replied to the foregoing communication by letter dated November 9, 1979. The response regarding the dental and life insur- ance matters is as follows: 5. With regard your comments relative to the dental insurance and life insurance package and the admitted disparity of treatment as to bargaining unit personnel and those unrepresented by a union, my client still ' maintains its position that such disparity of treatment cannot be justified in any manner. However, this issue hopefully will be be dealt with through the collective bargaining process. Negotiating meetings were held on January 22 and February 19, 1980. At the first meeting the Union pre- sented the Company with a complete, contract proposal. At the second meeting management presented its propos- al. Additionally, at the second meeting, there was consid- erable discussion, initiated by Respondent, that the head nurses and charge nurses, who had been included in the unit, were supervisors and should not be involved in col- lective-bargaining negotiations on behalf of the Union 2 Another meeting was scheduled for March 5, 1979. However, shortly prior to meeting, the Union received a letter from the Respondent that it was canceling negotia- tions and withdrawing recognition as a result of partici- pation of statutory supervisors in the collective-bargain- ing process, in which the Respondent maintained invali- dated the certification; and, as a further independent ground for withdrawing recognition, the Respondent ad- vised the Union of the receipt of a petition signed by a majority of registered nurses indicating that they no longer wished to be represented by the Union. On March 5, 1980, the Respondent filed with the Board a motion to revoke certification, maintaining that Head Nurses Burke and Skinner were supervisors of Re- spondent and were also principal officers of the Union and members of the Union's negotiating team and that, under the authority of Sierra Vista Hospital, 241 NLRB 631 (1979), the certification issued on March 28, 1973, should be revoked. In support of-the motion the Re- spondent submitted a detailed statement of position set- ting forth the alleged supervisory duties and responsibil- ities of Burke and Skinner. On July 2, 1980, the Regional Director for Region 21 issued an order denying motion in Case 21-RC-12866 that states, in pertinent part, as follows: The Employer's Motion to Revoke Certification is based on the participation of Carolyn Burke and Barbara Skinner in the representational functions of Los Alamitos Nurses Association, Burke holding the office of president and Skinner that of vice president. Burke and'Skinner were the sole employ- ee members of Petitioner in handling grievance pro- ceedings at the first step The investigation dis- closed that Burke and Skinner were both head 2 The Union's negotiating team included Carolyn Burke and Barbara Skinner Burke, the Union's president, and Skinner, the Union's vice president, were head nurses 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nurses, responsible for writing employee evalua- tions, ^ initiating and carrying out discharges and most of the employees discipline in their respective departments. Another head nurse Kathleen Sandier, held the position of secretary in Petitioner. Following the filing of the Motion to Revoke Certification, all of Petitioner's officers, including Burke and Skinner, resigned their offices and mem- bership in Petitioner.3 Burke and Skinner have been replaced in the principal offices of president and vice president by staff nurses with no indicia of su- pervisory authority. The constitutions of both Los Alamitos Nurses Association and United Nurses As- sociations of California prohibit supervisors from holding membership, and therefore, office; in each organization. Based on the foregoing, the undersigned conclud- ed that Petitioner's representative functions are now sufficiently insulted from supervisory participation that there is presently no clear and present danger of supervisory participation on the Union side of the bargaining process, which the Employer must establish to warrant a finding that Petitioner is un- qualified to represent employees in collective bar- gaining. Oak Park Community Hospital, 249 NLRB [958]; Lodi Memorial Hospital, 249 NLRB [798]; Sierra Vista Hospital, Inc., 241 NLRB [631]. Respondent requested review of the Regional Direc- tor's Order, and on October 16, 1980, the Board denied the request for review, noting that "no finding is made herein as to the supervisory status of the Employer's head nurses." 3. The decertification petition Jack Boggess was charge nurse in the intensive care unit from April to September 1979, and became charge nurse in the emergency room beginning in September 1979. Boggess testified that he, Barbara Rue, charge nurse in the coronary care unit, and a third unidentified individual, circulated petitions to remove the Union as bargaining representative. Boggess testified that in early July 1979 he advised the, Respondent's director of personnel, Mary Tenney, that there was considerable dissatisfaction with the Union among the registered nurses, and asked her how the em- ployees could get rid of the Union. Tenney said she could not tell him whether the Hospital was for or against the idea, and said she would attempt to get some information and advise him After several weeks Boggess again approached Tenney, who produced a letter that she permitted Boggess to read, and that Boggess re- turned to her. The letter, dated July 26, 1979, addressed to Henry Mordah, administrator, from J. Richard Thes- ing, Respondent's attorney, is as follows: 8 The letters of resignation from their respective union offices, submit- ted to the Union by Burke and Skinner, are dated March 5, 1980 The letters appear to constitute only resignation from their official positions and do not state that the individuals are also resigning their union mem- bership I understand that some of the Registered Nurses have asked you how they can get out of UNAC. In turn, you have asked' me what the procedure is and whether or not you can inform employees who are interested as to the proper procedure. First, it is legally permissible for the Hospital to respond to employees' questions and to inform them as to what the appropriate 'legal procedures are. However, the Hospital must make it clear to em- ployees that it is their decision as to whether or not they decide to decertify the Union and the Hospital must make no promise of benefit or threat of retalia- tion depending on whether or not any employee supports or fails to support a decertification effort. The procedure for withdrawal of recognition and decertification is quite simple. If fifty percent of the employees were to sign a petition stating something to the effect of "We do not wish to be represented by UNAC" and place the date after their signatures and give the petition to any member of administra- tion, it would enable the Hospital to withdraw ne- cognition from the Union and also to request the National Labor Relations Board to conduct a secret ballot decertification election. The Hospital should not only make it clear to employees that the deci- sion as to whether or not to sign such a petition is one for them to make of their own free will, but also that the preparation and circulation of any such petition should be done outside of normal work time. While it is permissible to do it on the Hospital premises before or after work or during break time or lunch time, it would be advisable for any circula- tion of such a petition to be done outside the pres- ence of any supervisors. It is permissible for you to show this letter to any employee who has requested information about get- ting out of the Union If the employee has any fur- ther questions, you can either relay those questions to me or the employee may feel more comfortable calling the National Labor Relations Board directly to ask them any questions regarding decertification. Boggess testified that after becoming aware that the Union and Respondent intended to engage in collective- bargaining negotiations he delayed the preparation of the decertification petition until January 1980, at which time he believed that negotiations would not be productive. Thereupon he prepared and began circulating the peti- tion. Two additional petitions were prepared by other in- dividuals and were circulated at the same time. Each pe- tition bears the heading "We the Undersigned Do Not Wish to be Represented by the United Nurses Associa- tion of California." The petition Boggess circulated con- tains 38 signatures. The other petitions contain six and two signatures, respectively. Thereupon, in February 1980, Boggess handed the petitions to Sonja Hagel, Re- spondent's director of nursing. According to the testimo- ny of Thomas A. Robertson, execution director of the LOS ALAMITOS MEDICAL CENTER Union, there were approximately 74 employees in the unit, including 5 head nurses and 20 charge nurses.' Boggess worked as a charge nurse in the emergency room on the 3 to 11 p.m. shift. His immediate supervisor was Julie Messmer, emergency department supervisor, who worked the day shift until 5 p.m. After 5 p.m. the house supervisor became Boggess' immediate supervisor. Boggess testified that he did not discuss his desire to get rid of the Union with Hospital Administrator Mordah, or with any other representatives of management. Dale Seyler worked for Respondent as a charge nurse in the emergency room on the day shift from 1977 through September 1979. She was a member of the bar- gaining unit and secretary of the Union . Seyler testified that in September 1979 she felt the Union was "on the way out" due to an increasing lack of interest among the employees. Seyler recalled attending a union meeting on August 30, 1979, at a park . She did not recall any state- ments by Boggess at the meeting. Seyler testified that she recalled in August or Septem- ber 1979 that Boggess said to her, in the presence of Dr. Jetton, emergency department director, something to the effect that the Union was going to be eliminated from the hospital. Seyler, when permitted to read her affidavit regarding the matter, testified that her recollection was not refreshed, and the affidavit was received in evidence. The affidavit, signed by Seyler on April 8, 1980, states, in pertinent part, as follows: In mid-August 1979, Jack Boggess , a RN came into the ER utility room when I was on duty. Dr. Jetton director of the ER was also present. Boggess told me he was promised by Mordah, the hospital administrator, that he would increase the RNs' salary if we got the Union out and that he had a petition which he was taking around. I replied it was not possible to do this with a petition . Boggess replied he had spoken to the lawyers and it can or will be done. About a week later at a paramedic meeting Dr. Jetton approached me and stated we had to get the Union out, because we will have better staffing and ER differential. Seyler's employment with Respondent ended in Decem- ber 1979, but at the time of the hearing she was working for Domingus Valley Hospital, also owned and operated by National Medical Enterprises (NME), the corporation that owns and operates the Respondent. Kathy Sackman, president of United Nurses Associa- tion of California, testified that at a union meeting on August 30, 1979, attended by 16 unit employees, Jack Boggess stated that he "had it on good authority" that as long as the Union was present the hospital would give no increase in wages or benefits. He also asked how in- creased wages could be negotiated. Sonia Moseley, executive vice president of United Nurses Association of California, testified that at the August 30 meeting Boggess asked if it was possible for * It was agreed at the hearing , and the record clearly shows, that the head nurses and charge nurses were included in the unit and covered by the collective-bargaining agreement and remained in the unit after Re- spondent took over the hospital. 421 the Union to negotiate higher wages, and also whether it was possible for the nurses to get out of the Union. Sack- man replied, according to Moseley, that because there was a contract in effect it would not be possible for the nurses to decertify the Union. Boggess replied that he disagreed, that he "had it on good authority" that it was possible for the nurses to decertify at that time. Boggess testified that the only statement he recalled making at the meeting was that as a result of poor wage rates in the contract the hospital was having difficulty getting nurses to work for it. Boggess denies that he used the term "good authority" at the meeting. He also testi- fied that he never discussed the petition with Dale Seyler, as he knew she was an officer of the Union and that there was no way she would sign the petition; nor did he talk to her about what changes would be institut- ed if the Union was eliminated. Dr. Jetton, who is responsible for physician staffing and patient care in Respondent's emergency room, and who is not employed by, but works for the hospital pur- suant to a contractual arrangement, testified that he never overheard a conversation between Seyler and Bog- gess regarding the Union, and that he never stated to Seyler anything to the effect that the benefits would be better if the employees got the Union out. Henry Mordah, currently senior vice president of NME for the northwest region, testified that he was ad- ministrator from May 1979 to 1981. In July 1979, he was advised by Personnel Director Mary Tenney that she had been asked by an employee about how to remove the Union. Thereupon Mordah contacted Respondent's attorney, Thesing, who prepared the aforementioned letter. Mordah testified that he did not know the identity of the employee, and never had a conversation with him; nor did he tell Boggess or anyone else that benefits would be increased if the Union was eliminated. C. Analysis and Conclusions Jack Boggess appeared to be a credible individuals and I find that he initially contacted the Respondent and thereafter, on his own volition and without prompting or encouragement by any representatives of Respondent,6 prepared and circulated the decertification petition. It is undisputed that the petition was signed by a majority of employees and was presented to the Respondent shortly before it withdrew recognition from the Union. I further credit Boggess and find that at the August 30, 1979 union meeting he did not, as alleged in the com- plaint, "promise [as an agent of the Respondent] unit em- ployees that benefits, including wages, would increase and that the terms and conditions of employment would improve if the employees rejected the Union as their bar- gaining representative." There is no credible evidence es- tablishing either that Boggess was an agent of Respond- ent, or that he made the alleged statement. Indeed, Sack- man, president of the Union, and Moseley, executive vice president, presented inconsistent testimony regarding S I do not credit the testimony of Dale Seyler over that of Boggess and Jetton. 6 I credit Mordah's testimony that he did not discuss decertification or benefits with any unit employee. 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Boggess' alleged comments at the meeting. Thus, Mose- ley, contrary to Sackman , testified that Boggess merely said that he had it on good authority that it was possible for the nurses to decertify the Union at that time. This is consistent with the contents of the letter that Boggess had been shown, apparently in late July 1979, by Person- nel Director Tenney. Nor is the decertification petition tainted , as argued by the General Counsel, because Boggess may have been implicitly, but erroneously, identified to the employees as a supervisor. It is conceded that the charge nurses, in- cluding Boggess, were included in the unit at all times, and had considerably less authority than the head nurses, who were not only included in the unit but who held the highest union offices. Thus, the status of these individ- uals had been, in effect, resolved by their inclusion in the unit throughout the times material, and there is no evi- dence that the employees signed the petition because they believed that Boggess or the other individuals circu- lating the petitions were acting on behalf of the Re- spondent. See Times Herald, Inc., 253 NLRB 524 (1980); Hydro Conduit Corp., 254 NLRB 433 ( 1981); Montgomery Ward & Co., 115 NLRB 645 (1960). Further, I find that there were no contemporaneous unfair labor practices that would have tended to encour- age employees to sign the decertification petition. It is clear that Respondent changed the dental and life insur- ance carriers without consultation with the Union. How- ever, the record shows, and I find, that the Union was not concerned with the identity of the carriers, and never raised this as an issue of significance . Moreover, the General Counsel presented no evidence to indicate that the change in insurance carriers had any effect on the wages, hours, or working conditions of unit employ- ees. See Keystone Consolidated Industries, 237 NLRB 763 (1978), enfd. 606 F.2d 171 (7th Cir. 1979). Thus, I shall dismiss this allegation of the complaint. Additionally, as noted, there was no change in benefits to unit employees, and the General Counsel has not demonstrated that it was unlawful for Respondent to provide lower cost de- pendent coverage to nonunit employees while at the same time maintaining the contractually mandated bene- fits for unit employees until changed through the collec- tive-bargaining process. Nor has it been shown that the disparate treatment of unit and nonunit employees re- garding dental insurance dependent coverage or other types of insurance induced employees to sign the decerti- fication petition, particularly as the petition was signed at a time when the employees understood that negotiations for a new contract, including dental and medical conver- age, was being negotiated. See Master Slack Corp., 271 NLRB 78 (1984). On the basis of the foregoing, I find that the Respond- ent did not violate Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union based on re- ceipt of petitions signed by a clear majority of unit em- ployees indicating that they no longer desired to be rep- resented by the Union. Dresser Industries, 264 NLRB 1088 (1982).' CONCLUSIONS OF LAW 1. National Medical Hospital of Orange, Inc. d/b/a Los Alamitos General Hospital is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Los Alamitos Registered Nurses' Association affili- ated with United Nurses ' Association of California is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not, as alleged, violate Section 8(a)(1) and (5) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The complaint is dismissed in its entirety. As a result of my findings and conclusions, it appears unnecessary to resolve certain other issues presented by the parties , namely, whether the head nurses are supervisors within the meaning of the Act, whether the local union and its parent organization have been the joint certified or recognized collective-bargaining representative of the unit employees, thus enabling the parent organization to require the Respondent to bar- gain with it rather than with the local , and whether the Respondent's withdrawal of recognition based on the authority of Sierra Vista Hospital, 241 NLRB 631 (1979), and related cases is meritorious 8 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.