Deepdale General Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ralph Nenner, M.D., Louis Orens, M.D., et al., a partnership d/b/a Deepdale General Hospital and District 1199, National Union of Hospital and Health Care Employees, League of Regis- tered Nurses, Retail, Wholesale and Department Store Union, AFL-CIO. Cases 29-CA-6952, 29-CA-7092, and 29-RC-4400 December 9, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 8, 1980, Administrative Law Judge Harold Bernard, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the Charging Party filed a letter in the nature of a brief in oppo- sition to said exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Ralph Nenner, M.D., Louis Orens, M.D. et al., a partnership d/b/ a Deepdale General Hospital, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE HAROLD BERNARD, JR., Administrative Law Judge: This is a consolidated representation and unfair labor practice proceeding heard before me on July 30 and 31, August 1, 2, 6, 7, and 8, and September 10, 1979, in Brooklyn, New York. District 1199, National Union of Hospital and Health Care Employees, League of Regis- tered Nurses, Retail, Wholesale and Department Store Union, AFL-CIO,' the Charging Party-Petitioner, herein the Union, lost an election for registered nurses at Respondent's Deepdale General Hospital on December 21, 1978, 61 to 47, and filed timely objections based on Respondent's alleged interference with said election. Thereafter, the Union also filed charges alleging that Re- spondent violated Section 8(a)(1), (2), (3), and (5) of the Act, as later detailed in a consolidated complaint issued April 27, 1979, wherein the General Counsel also alleges that Respondent's misconduct is so severe as to render a fair election impossible, thereby requiring the issuance of a bargaining order remedy pursuant to N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). The issues are: (1) whether Respondent initiated, par- ticipated in, sponsored, and encouraged the Nursing Committee of Deepdale Hospital, solicited grievances from employees, promulgated unlawful rules prohibiting union solicitation and distribution of union literature, un- lawfully promised and granted employment benefits in- cluding sick leave pay, unlawfully threatened to with- hold employment benefits, kept employee union and con- certed activities under unlawful surveillance, and pro- moted an employee for her support against the Union; (2) whether the Union was validly authorized by a ma- jority of the registered nurses at Deepdale General Hos- pital to be their collective-bargaining representative; and (3) whether the alleged conduct warrants a bargaining order remedy. Upon the entire record, including my observation of the demeanor of the witnesses, and consideration of Re- spondent's brief, the only brief filed,2 I make the follow- ing: FINDINGS OF FACT I. JURISDICTION A. Respondent Respondent operates a general hospital in New York, New York, where it annually derives revenues in excess of $250,000 from the sale of hospital health care services and annually purchases supplies valued in excess of $50,000, directly from sources outside the State of New York. I find, as admitted, that Respondent is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Labor Organizations Involved The Charging Party Union is admittedly a labor orga- nization within the meaning of Section 2(5) of the Act and I so find. It is also found that the Nursing Commit- tee of Deepdale Hospital was at all times material herein in business to represent hospital employees in bargaining with Respondent over wages, hours, and working condi- tions and therefore constituted a labor organization under said Section in the Act, however short-lived its ex- istence. The case caption as amended at the hearing. 2 The Party in Interest. Nursing Committee of Deepdale Hospital. made no appearance nor did it file a brief 253 NLRB No. 92 644 DEEPDALE GENERAL. HOSPITAL II. THE APPROPRIATE BARA(;ININGi UNIT The parties agree and the record reflects that the fol- lowing constitutes a unit appropriate for collective bar- gaining: All full-time and regular part-time registered nurses, including head nurses and charge nurses, employed by Respondent at its Little Neck hospital. New York City, New York, excluding all other employ- ees, guards, and all supervisors as defined in the Act. In its answer, Respondent admitted the status of Drs. Ralph Nenner and Louis Orens as board of directors' members, John Kenny as hospital executive director, Helen Timm as director of nursing, and Muriel Manson as assistant director of nursing; and that Kathy Brown, recovery room supervisor, and Dorothy Caraher, re- ferred to as senior nursing supervisor, are supervisors within the meaning of the Act. I find, in view of said ad- missions and the roles they played in the events dis- cussed below while occupying said managerial and su- pervisory positions, that these individuals also acted as agents on behalf of Respondent. IM1. THI LUNIAIR AHOR P'ACTICES A. Background The timeframe for relevant circumstances is from early October 1978 until January-February 1979, roughly the period tracking the Union's organizational campaign to represent the hospital's 120 or so registered nurses. An existing benefit for the hospital employees, and one which will be readily seen as very important to the regis- tered nurses, was Respondent's sick leave policy allow- ing employees the option to accrue sick leave and turn it in for pay, rather than using it in the form of excused days off due to sickness. In early October, the hospital executive director, Kenny, held a closed meeting with department heads, including Barbara Russo, the infection control nurse. At this meeting with top operational per- sonnel, Kenny painted an unfavorable picture of hospital finances as being in the red, and asked those present to ask nurses to take their sick leave as excused time rather than be paid for it because the hospital's supply of cash was low. It is not clear why Russo, who figures promi- nently in later events, was invited to be present with de- partment heads but it could be that her position carried with it a status akin to that of a department head, since it involved responsibility hospitalwide for the detection and prevention of infection, a rather single-missioned func- tion requiring her to circulate throughout the hospital without close supervision in an autonomous department- like operation. Adding to the basis for such an inference is the special confidence placed in Russo both by Dr. Ralph Nenner, hospital part-owner, shown in events dis- cussed below, and by Kenny in contacts with Russo and the nursing committee. By October 20, nurses Barbara Smith, Carolyn Dom- broski, Ivy Hall, and Beverly Goodman had learned of the "withdrawn" benefit from supervisors; i.e., that there no longer would be pay for unused sick leave. Ivy Hall was told of the withdrawal by Nursing Supervisor Pat Johnson, who informed her after checking with Assistant Director of Nursing Manson that it was definite, to which Hall replied it was unfair after getting the benefit for 7 years. Smith learned from other nurses that the sick leave policy, which she understood was 15 days a year, henceforth would be on a "use it or lose it" basis. There is no question but that the news had spread among the nurses, Smith also talking to nurses Jo Cruz and Judy Garlander on the second floor, by October 20. In re- sponse, that day, Smith agreed with Goodman that a meeting of employees be scheduled at Great Neck House for October 23, and flyers were made up by the nurses announcing the meeting to discuss, inter ulia, salary and benefits, lack of interest and communication from admin- istration, and "Need For Bargaining Agent" (G.C.Exh. I(o)). Smith handed out the flyers in the hospital to about 50 employees. Smith also telephoned different unions seeking a speaker for the meeting, finally succeed- ing in arranging for Local 1199 Union Organizer Jeff Cohen to appear. Despite Respondent's disclaimer on both points, the record establishes that whatever mental reservations Re- spondent contends it harbored about changing the sick leave policy, i.e., that no "change" had really been made, only a decision by Kenny to ask nurses not to seek pay for unused sick leave, it is clear from the foregoing that those reservations were not communicated to employees and that Respondent's conduct objectively manifested a final decision to end the option for pay in lieu of time off. I so find. Further, I find that Respondent knew about employees' efforts to meet and discuss the need for a bargaining representative on October 20, when 50 flyers to this effect were circulated to employees by Smith at the hospital, where, as shall appear clear, very little escaped notice by Respondent so far as union activ- ities of its employees, especially Barbara Smith, are con- cerned. Indeed, at a Christmas party on December 15, Kenny told Smith he knew about the unionizing effort prior to the hospital staff meeting on October 26. About 35 employees attended the union meeting, which Smith addressed prior to Cohen's arrival. Smith compared benefits of unrepresented employees with those of nonprofessional employees represented by a union as reflected by a booklet describing the benefits. When Cohen arrived, Smith introduced him and, accord- ing to a tape recording Smith made that evening, and which the parties agree is accurate, Cohen then ad- dressed the group, describing the history of the Union, its inception, and earlier working conditions in the indus- try, including how representation of technical and pro- fessional workers was important to the ability to bargain for strong contracts, development of bargaining units, voting eligibility criteria, benefits that the Union can offer, such as health insurance paid by employees, and dental insurance details. Cohen explained that he could not quote a contract covering the Jamaica Hospital terms as the contract the Union would negotiate with Deep- dale because the Union would negotiate a Deepdale Hos- pital contract reflecting the nurses' needs there. He ex- plained that, "We will negotiate a contract as the mem- 645 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD bership wants" (G.C. Exh. 101). Cohen also listed bene- fits sought by bargaining, such as a pension plan, tuition plan, job classification protection, surgical benefits, pre- scription costs, disability and maternity benefits, stating that practical reasons, namely, competitor union rivalry, would tend to foster union efforts not to negotiate a con- tract that was in any way inferior at Deepdale Hospital. He described operating procedures leading to formula- tion of contract negotiation demands, holiday pay, over- time provisions, starting salary, and benefits at other hos- pitals under contract with the Union. About midway through his talk, Cohen was asked whether the authorization or designation card, referred to in only general terms earlier, meant that the staff wants the Union. Cohen answered by reading the card as follows: [T]he designation card says, Authorization for Rep- resentation. I hereby authorize the League of Regis- tered Nurses, District 1199, National Union of Hos- pital and Health Care Employee [sic] Division of RWDSU, AFL-CIO, to represent me in collective bargaining negotiations. One can hardly conceive of a more direct affirmative reply than that. He went on to say that, "It does not say you are going to vote for the Union. You are not a Union member, when you sign this. It merely is a card authorizing representation." (Emphasis supplied.) Cohen's was an accurate and true portrayal of the cards' express- ly stated purpose, authorization of the Union to represent the signer in collective-bargaining negotiations. Respond- ent points out, however, that Cohen went further in this part of the speech when he asked rhetorically of the au- dience what was done with these cards and went on to explain only one of different alternatives, their retention by the Union until the latter felt enough cards were on file for an election whereupon the cards are brought to the Labor Board for such purpose. It is also true that Cohen made use of the term "election" elsewhere in his remarks, but it is clear that nowhere in his speech did Cohen ever state that the only purpose of the card was to secure a Board election; nor did he otherwise negate the expressly stated purpose for signing the authorization card. At its best, Respondent's interpretation of events is that Cohen told employees at this meeting and a second meeting (held on October 28) where it is agreed he said the "same things," that an election is a purpose of the cards. (Emphasis supplied.) The Board has held that by such message, "the solicitor neither contradicts the plain statement on the card nor misstates the Union's actual in- tention." General Steel Products, Inc., and Crown Flex of North Carolina, Inc., 157 NLRB 636, 644-645 (1966). Cohen neither contradicted the language on the card nor told employees to disregard it and there is nothing in his remarks to establish that the Union intended to abandon or ignore the authorization. In addition, as shall be noted further below, most of the card signers presented by the General Counsel testi- fied that they read the cards before signing them, and the card was accurately read to employees by Cohen at these two meetings. I find that nothing said by Cohen during the course of these meetings invalidated the cards circulated and secured there. Motor Inn of Perrysburg, Inc. d/b/a Holiday Inn of Perrysburg. Ohio, 243 NLRB 280 (1979); and Jeffrey Manufacturing Division, Dresser Industries, Inc., 248 NLRB 33 (1980). At the conclusion in Cohen's records, cards were circulated and, upon being signed, were handed by the signatories to Smith, who checked that all the blanks were filled in, that the signatures appeared, and that the cards were dated, before giving them to Cohen. Cohen also gave out addi- tional authorization cards for distribution to other nurses.:' Two days later, on October 25, Smith met Cohen for 5 minutes in the nurses' lounge located in the operating room suite. This lounge is open to the public, contains a coffeemaker, and both friends and husbands of nurses use the lounge to wait for nurses. Smith described the area as a fairly open area, also frequented by salesmen and free of restrictions. She gave her own signed authoriza- tion card to Cohen. Promptly after Cohen left, Supervi- sor Brown told Smith, "They know who he is, and I don't want you meeting with him in this area ever again .... He is not to come in here." Smith testified without contradiction that she knew of no prior rules or policy restricting solicitation, or speaking to employees, or dis- tribution of literature in the hospital, and gave examples of prior sales solicitations by outside or nonemployee in- dividuals, solicitations for showers, or gifts for departing employees which had occurred inside the hospital build- ing. Thus, Brown's instructions were targeted against Smith having such contact in an area previously free from such restriction. This was no attempt by the hospi- tal totally to exclude a nonemployee from its premises al- together. In fact, the admonition was directed only against an employee, nurse Smith, to deny her rights in the nature of solicitation, distribution, or contacts with the Union by discriminatorily denying her the use of the lounge area for such purposes while allowing use of the lounge for all other purposes. This deprivation of a con- venient locus for the exchange of information or litera- ture between Smith and Cohen is akin to an employer's discriminatory restrictions on the use of company bulle- tin boards or other channels of communication to ob- struct organizational and collective-bargaining rights- restrictions created for the first time at the advent of union activity and, thus, shown to be unlawfully motivat- ed. I find Brown's restriction on Smith's use of the lounge to be an unlawful intrusion into employees' Sec- tion 7 rights violative of Section 8(a)(l) of the Act. Montgomery County MH/MR Emergency Service, 239 NLRB 821 (1978). This incident also reveals Respondent's growing con- cerns over the Union's organizational efforts. Nurse Carolyn Dombroski testified that Supervisor Brown told her of warning Smith not to meet with union people in her department shortly after the first union meeting, in i The taped version of Cohen's remarks does not support his assertion when testifying in this proceeding that he also mentioned securing recog- nition with the authorization cards, nor Smith's testimony to such effect, possibly based on other meetings attended by Smith and Cohen with the Union's organizing committee. 646 DEEFPDALF GENERAL HOSPITAL fact, the next day, and that Brown had said that there had been a man with papers in the area to see Smith and "they" knew who he was, that she had been called into Kenny's office that evening and questioned whether she knew anything about union activity in the hospital. I find that Supervisor Brown's repeated reference to Smith and Dombroski that "they" know who he is, an obvious ref- erence to Cohen arising from his being seen by Brown during his visit with Smith on organizational matters, and Brown's report to Dombroski of Kenny's question- ing her about the nurse's union activities, also coupled with the statement "they" know who he is, was enough in combination to create the impression that Respondent was keeping protected union activities of its nurses under close surveillance and therefore constituted a violation of Section 8(a)(l). The Estate of Alfred Kaskel, d/b/a Doral Hotel and Country Club, 240 NLRB 1112 (1979). That this observation by Brown arose in the context of the un- lawful restriction on Smith's use of the public lounge only adds further menacing import and support to the finding of surveillance, nor was this an isolated occur- rence as will appear below. B. Solicitation of Grievances. Promises. and Grant of Benefits and Formation of the Nursing Committee A hospital staff meeting called by administration in the auditorium was held on October 26, only 3 days after the union meeting. Attending were Nenner, Kenny, Manson, a large number of nursing supervisors, and 75 to 100 staff nurses. Admittedly this somewhat regular annual meeting had a significantly different nature to its format over the prior meeting in 1977, when the nurses were told in fait accompli fashion what a pay increase or other benefits would be in the forthcoming year. This time I credit wit- nesses Smith, Dombroski, and nurse Ivy Hall, that there was a willingness-eagerness-by Nenner to learn what benefits the nursing staff wanted, what they considered important problem areas. He asked them what their "pri- orities" were, what the nurses wanted in terms of bene- fits. Dombroski asked why there was a meeting seeking to determine what the nurses wanted when, in the past, the meeting was to tell nurses about decisions already made by the board of directors concerning nurses' sala- ries; but she did not recall the response. Concern was voiced and questions asked by several nurses about the announced decision to discontinue the sick leave pay option. At first Nenner disclaimed that the previously communicated decision had ever been made, but then in a verbal pirouette stated that nurses "would be given the money if we needed it," because "something" could be done. When, in response to these solicited concerns, an- other nurse questioned why salaries were higher at other hospitals, Nenner promised that Deepdale nurses' pay would be kept on a par or equal to nurses' salaries in neighboring hospitals, a promise or announcement of policy not, in this record, at least shown to be a policy previously followed by administration and thus constitut- ing an improvement when it is considered that the objec- tion made to Nenner was that other nurses were paid higher salaries. Responses continued over other topics as well, including the medical plan and pension program. It is manifest in the context of events that Respondent at this meeting solicited employees to express their most important employment-related concerns, some of which it resolved on the spot, as a reaction to the Union's orga- nizing effort. This was an unprecedented inquiry into the needs of employees on a much more intensive and wide- ranging scale than prior inquiries at the previous year's meeting into whether the nurses felt there was enough linen and the like, and Respondent failed to offer any ex- planation for this action's timing. I find a substantial de- parture in this year's staff meeting, and solicitation of grievances made even more evident below, when, for the first time, a nursing committee is formed, and conclude that Respondent unlawfully solicited grievances from its employees to discourage growing employee support for the Union. Edward A4. Utlaut Foundation. Inc. d/b/a Edward A. Utlaut Memorial Hlospital and Fair Oaks Nurs- ing Home, 249 NLRB 1153 (1980). I further find that what was falsely represented to employees to be a dis- claimer of any change in sick leave policy was in fact a reinstatement of Respondent's preexisting sick leave policy which had no explanation or other purpose than to still employees' heated dissatisfaction which so impor- tantly fueled their union organizing drive. This reinstate- ment action therefore violated the Act. Edward A. Utlaut Memorial Hospital. supra. Respondent's promise to raise salaries of the nurses to a level equal to other hospitals, an improvement in its pay scale policies insofar as the employee outlook and this record is concerned, likewise has no origin other than Respondent's desire to discour- age employee support for the Union by removing this from employees' concerns and, thus, canceling another inducement for representation. This conduct also violat- ed the Act. During this same meeting a suggestion arose, either made by Nenner, as Smith recalled, or by Barbara Russo, an attendee at the earlier described meeting of de- partment heads, that a committee be formed to investi- gate the salaries and benefits at nearby hospitals. I find from the record that as if on signal a fast-paced sequence in events then quickly transpired-Nenner stated his prompt approval of the plan, and that such a committee should be formed, appointed Russo as chairman (or to form the committee), and went on to promise that any higher benefits than being paid at Deepdale found by the committee would be paid by Deepdale to the nurses ret- roactive to October 1. I find the promise of retroactivity, like the promise to maintain general benefit levels at Deepdale on a par with other local hospitals, likewise to be violations of Section 8(a)(1) of the Act as designed to undermine employee interest in and support for the Union. Nenner also pledged to support the committee's efforts, approval for the use of the hospital's name in re- questing information from other hospitals and pledged to support the efforts in getting any information needed. Nenner then said he would be happy to dismiss the ad- ministration and turn the meeting over to the nurses to discuss and form the committee. Despite objections by some nurses over Nenner's proposal, met by Russo's as- surance that if "it" did not work, "we" could go to the Union, Nenner and Kenny then left. But Nenner was re- placed by yet another Respondent representative, the as- 647 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sistant director of nursing, Muriel Manson, to run the meeting with Russo from the front of the auditorium. Nominations were requested for members on the com- mittee by Manson. Nurse Dombroski, a highly credible witness who declined opportunities when she could have easily shaded her testimony in favor of the Union and stuck very carefully to the truth, protested that the nurses were being pressured into these nominations. Nonetheless, the process continued, as if preordained, under Manson's and Russo's control, and a nursing com- mittee of eight nurses, including Russo, was formed. Both during the session just prior to nominations, and during the formation of the committee, employees were paid their regular wages. While initially formed for in- vestigation and reporting purposes, the Nursing Commit- tee, as will appear later, went beyond the role of being a tool, by which Respondent would crystallize how much he would pay the nurses to dissuade them from union support, into a bargaining agent puppet. But even at this early juncture, it is clear and I find, from the foregoing and as alleged by the General Counsel, that Respondent nurtured and pushed the idea of forming the Nursing Committee, promised and gave support to it, controlled, and participated in, the formation of the committee on October 26. The next day, Smith was handing out leaflets announc- ing that a second union meeting at Great Neck was planned on October 28, for all nurses, due to the over- whelming interest and support received at the prior meeting. Smith was on her lunchtime distributing the pamphlets in the employee cafeteria located in the hospi- tal basement level and recalls other nurses present during the lunch period, as well as Manson. Manson admittedly instructed Smith that she should not be handing out the literature in the cafeteria. It is also undenied that Manson told Smith she had no right to distribute the literature. Respondent's executive director, Kenny, testified that the cafeteria is open to employees and physicians only and not to the public or patients, and there was no demon- stration whatever that Smith's actions would disrupt pa- tient care or disturb patients. I find that Manson and thereby Respondent unlawfully restricted Smith from en- gaging in solicitation distribution activities in a nonimme- diate patient care area in violation of Section 8(a)(1) of the Act. Beth Israel Hospital v. N.L.R.B., 437 U.S. 483 (1978). This conclusion obtains whether or not one views Manson's efforts as promulgating a rule restricting distri- bution (and solicitation) as in the cited case; and such view draws support from several other instances when Respondent restricted Smith unlawfully, or whether Manson's conduct, as is also the case, is viewed as consti- tuting ad hoc interference with the Section 7 rights of employees. Heat Research Corporations, 243 NLRB 206 (1979). C. Activities of the Committee The committee met shortly afterward to consider how to get information from other hospitals. Kenny gave the committee a letter of approval for such purpose. He also called two hospitals to get information for the committee and gave it copies of contracts from some hospitals. Ivy Hall testified without contradiction that she and other committee members were paid for their time at commit- tee meetings, and that Russo told the members they would be paid. This included in at least one instance pay for attending such meeting on the employee's own, off- shift, time. The committee, I find, then met on Novem- ber 3, first in a morning session when the pay scales of different hospitals were somehow gotten together, and at 3 p.m. when, at a meeting of the nurses called by Russo, the committee "proposals" were read to the 50 or so nurses and supervisors attending in the auditorium. At this meeting Russo read a list of current benefits and the proposals, and assured the nurses that they would not be presented to the administration until at the earliest the following Monday or Tuesday evening after any further comments or proposals from the nursing staff had sur- faced. Smith talked to Russo at some point in these events, after the morning meeting, telling her she had 72 hours to get the hospital's proposal as she would hand in the "cards" by then. Russo testified that she told Kenny of Smith's declaration. After the two committee meetings that day, the first one having lasted 3 hours on that Friday morning, the second one somewhat shorter, Russo, her committee in tow, "happened" to pass Kenny's office and Kenny "happened" to see the group, inviting it into his office, and asking the committee what its findings were. Russo detailed the committee's propos- al, despite assurances to the staff nurses earlier that no presentation to administration would be made until nurses had additional time to consider the matter-a minimal courtesy considering the committee's proposal had only been read for the first time that day. Kenny re- sponded to Russo's presentation by stating that he him- self had worked out about the same figures. Kenny also said that the nurses ought to be paid time and a half for holidays. There was discussion of fringe benefits, tuition refunds, longevity pay, base salary, and uniform allowances, Kenny trying to match his earlier arranged figures with the committee's findings, but "came up with something else." Kenny testified that the committee wanted no change in sick leave, wanted uniform allowances, and that their tuition refund proposal could be a big problem. He testified it was on the basis of the figures' comparison that he arrived at what he felt the hospital could live with. There is no question that this was an early bargaining or negotiating proposal by the committee, Kenny himself testifying that he was given a time limit for acceptance or rejection of the findings or proposals, which caused him to work over the weekend on the hospital's responsive offer. The next day, Saturday, November 4, Russo called Smith and told her that she had done Smith a "favor" by disclosing the committee's proposal to administration early. Smith expressed surprise given the earlier expec- tancy that there would be no disclosure until nurses had been canvassed and proposals had been finalized on Monday. Russo told her Kenny would take it to Nenner and the board and be back to Russo later. On Monday, November 6, the committee met with Nenner, Kenny, and Manson. Although an effort was made by the nurses to read off a list of grievances for discussion, Nenner cut short the effort, stating that he al- 648 DEEPI)AI.E GENERAL HOSPITAL ready had been given a list on Friday of the grievances for the whole staff, and that it was complete. There was, in Kenny's words, a general "kicking around" of the committee's offer. Nenner then read and explained the board's version of the proposals, listing what was disap- proved and what would probably be agreed to, which Dombroski testified was less in most cases than the pro- posals sought. Nenner's proposals on paper signed by Kenny were distributed by Russo to the nurses' staff in- cluding Smith on November 7 and 8. General Counsel's Exhibits 3 and 4 reflect a wide range of topics sought by the committee and improvements in existing benefits granted or proposed by the administration as circulated in General Counsel's Exhibit 4 on November 7 and 8. The benefits listed included, inter alia, wage increases, vacations, holidays, sick pay, pension plan,4 hospitaliza- tion maternity leave, education benefits, uniform allowances, in-service education, communication of job openings, a bulletin board, a grievance committee, and representation on a review board. There is no record evi- dence tending to establish that these promised improve- ments in employment conditions were part of a regular or periodic increase in benefits that the Employer regu- larly granted to its employees on so widespread a scale as this. Given the timing of these promised benefits, the context within which the Employer's motive must be as- sessed, as more particularly noted below, the obvious use of the committee as a means to bargain about and there- by legitimatize their origin, and Respondent's animus toward the known union organizing drive, also devel- oped more fully belov, I find the promises of benefit were intended to stem employee interest in the Union in violation of Section 8(a)(l) of the Act by removing from employees' minds any necessity for union representation. Hamilton Avnet Electronics, 240 NLRB 781 (1979). At a nurses' staff meeting held on November 9, the very next day after General Counsel's Exhibit 4 was cir- culated, Russo was vehemently criticized by nurses who attacked her for an alleged disloyal association with Kenny and expressed displeasure over Russo's premature presentation and bargaining of the committee proposals to administration on November 4. The nurses turned down the proposals in a bitter display of resentment, whereupon Russo, in tears, reported events to Director of Nursing Timm. After the meeting, Cohen and Smith decided to file a petition for an election and Cohen called in his request to the Union's attorney to do so. En route to see Cohen, Smith had passed by the emergency room and spoken to nurse Roviczenko who, upon learn- ing from Smith that the proposal had been defeated, filled out and signed an authorization card. The fllow- ing day after Smith spoke to another nurse regarding her union card in the kitchen on the fifth floor, having first passed by Nenner at the nurses' station there, Nursing Supervisor Kathy Brown instructed Smith she was not to go to the floors during hospital time for any type of union business. Shortly afterward, however, Director of Nursing Timm came to Smith and spent time in the re- covery room inquiring from Smith how nurses could get their cards back, that they wanted them back. She in- 4 The pension plan was to rmain the same. structed Smith, whose position normally required her to go from floor to floor, to stay in her own unit. Respond- ent did not proscribe any other nonworking activity. Payne & Keller of Louisiana, 239 NLRB 694 (1978). 1 find that Respondent discriminatorily abridged employees' so- licitation and distribution rights in violation of Section 8(a)(1) of the Act by these overly broad, and as shall be seen still further below, unequally administered, restric- tions on Smith's movements. Clearly, there were nonim- mediate patient care areas, viz, the kitchen, cafeterias, first floor public lounges, and the like, where Smith's ac- tivities, on this record, would be free from the unlawful bans imposed on her by Brown and Timm. Beth Israel Hlospital v. .L.R.B.. supra; and, ' L.R.B. v. Baptist Hos- pital, 442 U.S. 773, 787, 788 (1979). D. Respondent's Control Over the Committee Intent on seeing the committee become a strong vehi- cle for its own purposes, Respondent did not rest with the nurses' rejection of the first proposal, and ignored the committee registered protests over the suspicious conduct. Instead, on November 13, Timm called a meet- ing, notices of which were posted on hospital bulletin boards, of the nursing staff, in the auditorium on work- ing time, which was attended by Nenner, Timm. Manson, Caraher, all the nursing supervisors, and regis- tered nurses. Kenny, in his testimony, admitted that a de- cision had been made, in light of the results and circum- stances at the November 9 meeting, to have another meeting, the instant one, and "control it better." Re- spondent succeeded. Director Timm passed out the ad- ministration proposal (G.C. Exh. 25), only slightly differ- ent, in Dombroski's opinion, from the rejected proposal (G.C. Exh. 4), which was read to the nurses; details of differential pay were discussed; and Nenner appeared and spoke, telling nurses that there would be retroacti- vity to October 1, and assuring pay on par with area hospitals. Timm called for a vote on the proposals, in- structing that yes or no be written on pieces of paper and that the papers be brought up to Timm and Manson in the front of the auditorium where, Smith recalls, Timm would open the slips immediately and place them before her. I credit Smith that Timm did so. Dombroski objected to the procedures being followed, protesting that supervisors were voting on the proposal and other irregularities, to no avail. When voting was over Timm retained custody of the ballots, and retired to Executive Director Kenny's office where Kenny and Timm, with no one else present, counted the ballots in complete se- crecy. The announced result was that the ostensible end product of committee-Respondent bargaining had been approved by the voters. As is true with regard to other committee meetings, employees were paid for the work- time spent at this meeting. By watching the committee members and their "con- stituency" deliberate and vote on the benefits proposal (the administration and committee's end product), col- lecting the votes and opening them immediately, and se- cretly counting the votes, Timm, as well as Kenny and thereby Respondent, was keeping the Section 7 activities of its employees under intentional and open surveillance 649 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in plain violation of Section 8(a)(1) of the Act and I so find. It was a known fact that the choice running throughout events in this period was between acceptance of the proposals and "going for Local 1199" so that, in my view, both the union activities and the sentiments of nurses at this meeting, as well as their general concerted activities conducted for the purpose of collective bar- gaining viz, the proposal's consideration, were under Re- spondent's unlawful surveillance. A vote against the pro- posal was, under the circumstances, a vote for the Union and against the administration-committee position fa- vored by, indeed, pushed upon, the nurses by the hospi- tal and being carefully shepherded by Timm, Manson, and the supervisor's presence, participation, and control of the meeting. There could be no clearer deprivation of the nurses' rights to unsurveilled deliberation and debate concerning their concerted activities in seeking improved working conditions than this. It is evident, in addition, that the Nursing Committee, shown even before events on November 13 to have been originated under Respondent auspices, approved and as- sisted by Nenner and Kenny, midwifed into existence by Manson, and supported by the hospital generally, was a bargaining agent puppet controlled by Respondent in further violation of Section 8(a)(2) of the Act. This con- clusion is based on the origins and purpose of the com- mittee described above wherein it is found to have been conceived as a tool by which Respondent could further solicit, ascertain, and implement the hoped-for improve- ments of its nurses' employment benefits to the extent it felt desirable, of course, for unlawful purposes. Russo's appointment by Nenner to chair the committee, and did so in the manner of Respondent's handmaiden, is another factor. Manson's presence at the first originating meeting and helpful role is another. Russo's status sufficient to be present at the department head meeting implies a status aligning her closer to management and supervision than to rank-and-file nurses. Her unaccountable spilling of the committee's findings and proposals in a "chance" meet- ing with Kenny who by further "happenstance" had ar- rived at the same figures, and bargaining by her commit- tee with Kenny both in stark repudiation of her promise to nurses to await their further consideration and posi- tion-taking before presentation, add further evidence to suggest an affinity, if not identity, between Russo and Respondent's interests in keeping the Union out. It ap- pears no coincidence that when the nurses boisterously rejected Russo's proposals on November 9 as given to her by administration after any complete negotiating ef- forts by the nurses had been thwarted by Russo, Kenny, and Nenner, the latter cutting off efforts to hear or talk about any grievances other than the list Russo provided, that Russo went directly to Director of Nursing Timm to report events in tears and to seek solace from an obvi- ous ally. Even though the nurses killed the proposals, Respondent revived and breathed life into the adminis- tration-committee process which produced the plan by admittedly "stronger control" of the nurses, committee and all, on November 13 when Timm, Manson, and the supervisors, with help from Nenner and Kenny, secured passage of virtually the same proposals. Revealing fur- ther manipulative power over the committee and its dis- dain for the committee action supported by the nurses at the November 9 meeting which rejected the proposals, Respondent circulated a memorandum on November 15, after the "controlled" meeting, stating that the nursing staff had voted overwhelmingly to accept "your elected Committee proposals .... " (G.C. Exh. 8). Finally, if any stronger proof of committee control by Respondent were needed, it will later be seen that on January 5, 1979, Nenner himself preemptorily dissolved the commit- tee, noting it had served its purpose. The Union had lost the election on December 21. Although the General Counsel does not allege an unlawful control aspect in the complaint count of a violation of Section 8(a)(2), the issue was thoroughly litigated at the hearing where ques- tions of fact common to such an issue as well as other issues raised by the complaint were addressed. I find that Respondent not only unlawfully helped originate the Nursing Committee, fostered, assisted, and supported it, and participated in the committee's activities through management and supervisors, but also exercised control over the committee activities, including its very exist- ence, in violation of Section 8(a)(2) of the Act. Edward A. Utlaut Memorial Hospital, supra; Fry Foods, Inc., 241 NLRB 76 (1979); Janesville Products Division, Amtel, Inc., 240 NLRB 854 (1978); and Fremont Manufacturing Com- pany, Inc., 224 NLRB 597, 601 (1976). E. Respondent's Continued Recognition of the Committee after the Union's Petition Is Filed, Further Restrictions on Union Activities, Threatened Loss of Benefits, Transfir of Loretta Fisch, and Grant of Benefits After the "controlled" meeting Cohen gave Smith a flyer announcing that District 1199 League of Registered Nurses had filed a petition for election (G.C. Exh. 6). The same day, March 13, Smith posted it and gave a copy to Timm and a staff doctor, and the Union sent a telegram to Respondent containing a request for bargain- ing, which the hospital received on November 14. That same day, a memorandum over Kenny's signature was circulated which stated that contrary to rumor all nurses whether they had signed cards or not could be eligible to vote in the event a vote is necessary on "an outside Bar- gaining Unit . . . ."(G.C. Exh. 7). On November 15, Respondent, in a memorandum to all registered nurses, refused to recognize the Union, Kenny indicating therein that Respondent "shall proceed to work with your Elect- ed Committee to put into effect your proposals as amended and accepted on November 13, 1978." (G.C. Exh. 8.) There is clear proof that Respondent, in the guise of maintaining order by both sides during the ensuing days in the election campaign, continued to work with the committee by overly restricting union activities while al- lowing and encouraging committee support in further violation of Section 8(a)(2). Thus, I find that Timm's tes- timony, under continuously leading questions, and with- out reassuring specificity, that she evenhandedly instruct- ed Russo and others on both sides to restrict activities unpersuasive in light of other credited testimony by Smith and Dombroski, as well as admissions by Kenny 650 DEEPDALE GENERAL HOSPITAL himself. Thus, I find Respondent acted disparately to- wards Smith on November 28, when Timm again re- stricted Smith to stay in her unit and to stay off the floors altogether after Smith tried to talk to nurse Loret- ta Fisch that day concerning the origin of a leaflet Fisch had helped prepare instructing nurses how to secure the return of signed union authorization cards; yet Russo freely posted and distributed the same paper in the hospi- tal (G.C. Exh. 9). On November 29, Smith and Cohen distributed leaflets at the timeclocks at the end of the day after the shift was over. The very next day, I credit Smith that Kenny instructed Smith in his office, with Dombroski present, to be out of the building and off the grounds at the close of her shift, that she was not al- lowed to stay on the premises at all after her shift was over. Further, I find that Kenny told Smith she was not to conduct union business on the floors at any time-any place-in the hospital, and that she was not to conduct any type of union activity in the hospital during the work shift. Yet, the very same day, Timm herself freely distributed in the hospital a copy of the "Salary and Benefit Proposal" (G.C. Exh. 10), which Kenny had ear- lier trumpeted and identified in his memorandum to the nurses as being a product of the committee's efforts and which consisted of a four-page listing of economic bene- fits planned for the nurses. Further, on December 4, Timm also distributed in the hospital a two-page memo- randum from Kenny to all nurses announcing consent to an election but referring pointedly to the earlier agreed proposals and declaring that "your committee and ad- ministration can work for the best interest of all con- cerned" (G.C. Exh. 12). When nurse Smith, on Decem- ber 4, flipped through a cardex file checking for hand- writing similarities there and on a note she had received of an upsetting nature to her, Timm protested to Dom- broski Smith's activities on the floors. In response the two agreed Smith would remain off the floors until the union matter was resolved. Other procommittee-oriented literature found its way unimpeded into the hospital as well, such as a memorandum extolling, inter alia, that "the proposals that your Committee put together brings your salary and benefits in almost all cases above what the Union has quoted" (G.C. Exh. 14). Yet, on Decem- ber 17, the senior nursing supervisor, Caraher, made it pointedly clear that union witness and election observer Ivy Hall was not to hand out leaflets to nurses in the hospital, while she was visiting there at I p.m. during her vacation. I also fully credit Dombroski's uncontradicted testimo- ny concerning this unequal treatment, that she frequently witnessed Timm talking to nurses during worktime about the committee, that Russo uninterruptedly spoke in favor of the committee on many occasions and was free to carry her message throughout the hospital, that she noted how committee communications were distributed on hospital stationery, that she could see and hear Timm also discussing the committee with its members in the nursing office. And, in fact, she had objected to Timm the unfairness in all this. I find on the basis of the forego- ing that Respondent not only promulgated and enforced an overly broad no-solicitation, no-distribution rule against union activities in violation of Section 8(a)(l), but also that it was discriminatorily applied against union ac- tivities and not to procommittee activities which Re- spondent favored and thereby assisted in violation of Section 8(a)(1) and (2) of the Act. Beth Israel Hospital. supra; and N.L.R.B. v. Baptist Hospital, supra; and Rike's. a Division of Federated Department Stores, Inc., 241 NLRB 240 (1979). The Threatened Loss of Benefits on December 15 The complaint alleges that Respondent, through Nenner, threatened to withhold employment benefits in order to discourage support for the Union. The allega- tion is based on Smith's testimony describing Nenner's statements to her at a hospital staff Christmas party on December 15, 6 days before the election. In this discus- sion, Smith asserts that Nenner spoke to her in a similar vein as did Kenny earlier at the party, telling her how much better the hospital policies were than those offered by the Union and that she should stop being involved with the Union. When Smith asked Nenner why the hos- pital did not give the nurses the benefits now, Nenner re- plied that the hospital could not give them anything until after the election. Smith said on further cross-examina- tion that she asked him why the nurses had not been get- ting them all along, and that Nenner said the hospital could not give anything until after the vote. Smith fur- ther testified that she asked Nenner why he had waited so long and then all of a sudden when the nurses decided to unionize he wanted to give them something. She also testified that she said that if the Union had not come in the nurses would not get any of these benefits, to which, instead of a denial, Nenner shrugged and laughed. It is clear that Nenner was pegging the payment of richer employment benefits to the outcome of the election voting by the nurses on December 21. Viewed in a party context separate and apart from the background to this case, Nenner's comments appear innocuous, though am- biguous. However, when the long stream of Respond- ent's acts presenting to nurses the oft-proclaimed choice between the committee, and all the new promised bene- fits connected with it and the Union, assumedly not con- nected with such improvements, is placed into back- ground to Nenner's remarks, the message comes through rather clearly. With a view now enlarged by full context, Nenner's message becomes rather direct and to the point, viz, if the vote goes union there will be no committee of course, and hence, no committee-generated benefits as promised. Nenner did not tell Smith she should not con- strue his comments in such a way, content to rest on the ambiguous threat that benefits would in effect depend on the election, nor did he testify at the hearing in denial of the complaint allegation, or of Smith's testimony. Re- spondent, through repeated references to what the com- mittee and the administration had produced in the form of new benefits, reference to continuing to work with the committee, and its open, deliberate favoritism to the committee, including written preferences for it over the Union and efforts to dissuade Smith to stop being in- volved in the Union, virtually made the continued exist- ence of the committee synonymous with, and a necessary predicate to, the nurses receiving those committee-ad- 651 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ministration benefits. An existence which would be im- possible if the "outside" bargaining agent were to prevail in the election. When Respondent's well-known union animus is joined with these other circumstances Nenner's remarks reasonably appear calculated to threaten em- ployees with a loss of benefits unless they vote against the Union, a threat violating Section 8(a)(l) of the Act. I so find. Interstate Transport Security/Division of PJR En- terprises, Inc., 240 NLRB 274 (1979). The Alleged Preferential Transfer of Loretta Fisch The General Counsel contends that Fisch was trans- ferred to infection control nurse on December 26, to fill the vacancy created by Russo's departure, because Fisch was deemed worthy of an advantageous move or reward due to her support for the administration against the Union. No doubt Fisch was more procommittee and ad- ministration than prounion; she served as hospital observ- er at the election and no doubt the new position which she left shortly afterward at the end of February, for the position of head nurse, carried with it, while no greater pay, more flexible hours and the freedom to move around the hospital. In addition, while no other econom- ic benefits attend the position, it rates a status sufficient to qualify the incumbent to attend department head meetings and perhaps serve as a stepping stone for Fisch's further advancement; so clearly the post amount- ed to a step up for Fisch and a desirable one generally. I found Fisch's testimony unreliable, both as to her exag- gerated responses concerning an overblown incident with Smith in the medication room, and her association and activities on the Nursing Committee, when her testi- mony was vague and her recall selective and guarded where it should have been clear. In addition, Fisch testi- fied she did not know what the qualifications for the in- fection control nurse were before applying or afterward. And Timm, when questioned why she had not posted the new opening, in the face of the hospital's broadcasted policy of doing so before filling new vacancies, simply admitted that she did not know why she had not posted the opening. It is, of course, rare that such a violation as this can be proven by direct evidence, such as an admis- sion by the happy new incumbent in the position, who is not likely to turn on the grantor, or by an admission by the benefactor who would just as soon not concede other than a pure intent. As a consequence in this area, even more so than in most, a judicious use of circumstan- tive evidence is required, and reliance on burdens of proof and presumptions arising therefrom fully justified. Fisch often defended the committee, and went to Timm protesting Smith's inquiry into a committee-alleged usur- pation on November 28, in such manner as to clearly evince she was procommittee; in fact, she admitted working on the paper containing instructions for nurses to recover their union authorization cards. She further appears as a hospital ally from her service as an observer for Respondent 5 days before her transfer, and an out- spoken defender of the Respondent-controlled committee throughout the hospital. In addition to a possible motive of rewarding Fisch for her procommittee support against the Union, inter alia, in her efforts to secure a return of the union cards, Respondent had the additional motive of filling Russo's old position from which vantage point it could continue to keep a pulse on activities throughout the hospital with a tried and true loyalist, so there is no doubt that motive for appointing Fisch is established in the record. Russo's departure, of course, provided a timely opportunity. In the face of these factors, a pre- sumption arises that Respondent may have harbored the intention to reward Fisch based upon her committee ac- tivities, thereby shifting the burden of showing why Fisch was selected onto Respondent. Fisch's admitted lack of any knowledge of the position's required qualifi- cations and Timm's failure to offer any reason at all why the hospital promised-posting policy was not followed render Timm's only alleged substantial reason for select- ing Fisch, viz, to solve some personal friction problem on the floor between Fisch and another as totally unpersua- sive and unworthy of belief. This leaves the latter's an- tiunion activity, as the only reason on this record for the transfer of Fisch, a basis for the action which clearly dis- criminated in regards to an employee's union activity in violation of Section 8(a)(3) of the Act. I so find. Grant of Benefits There is no question but that, in December 1978, and beginning in early January 1979, Respondent granted nu- merous employment benefits to its nursing employees, telling them it was implementing benefits, "as promised." Smith testified that sick leave pay was paid employees and the record indicates this was on December 14, in a paycheck accompanied by a note from Kenny to all em- ployees: ". . . your pay for unused sick time as promised .... " (G.C. Exh. 15). She also testified to increases in base salary being paid, increase in the timespan during which progressive pay increments would be given; in- creases in pay differentials for head nurses, who were in- cluded in the unit, increases in shift differential pay for staff nurses, increased pay for nurses serving as charge nurse and medication nurse on the same shift, better holi- day pay in the form of time and a half for some holidays, premium pay for work required on a nurse's normal day off, greater discretion in use of sick leave, maternity leave policy in writing, a uniform allowance for the first time, posting of new positions prior to their being filled, college education benefits, an educational committee, plans for a minimum in-service education period were in- augurated, a nurses' bulletin board, a grievance commit- tee, and representation on the medical board. On January 5, Nenner informed employees that the Nursing Commit- tee had achieved its purpose and no longer existed, also telling employees when pay raises would be implement- ed. On February 28, employees received paychecks with a note attached informing them the amount of the pay included retroactive pay "which you were promised .... Even though all matters have not been settled as yet with the National Labor Relations Board .... " Re- spondent does not deny that it actually granted these benefits, and never before this had the nurses been treat- ed to so wide a variety of new and substantially in- creased benefits. These benefits flowed from Respond- ent's earlier promises, found herein calculated to discour- age employee interest in the Union, and came into exist- 652 DEEPDALE GENERAL HOSPITAI. ence through the unlawful manipulation and control of the puppet Nursing Committee-via alleged bargaining with administration and in the guise of "proposals," also found to constitute, in reality, Respondent-created prom- ises of benefit to achieve unlawful purposes. I find the new benefits granted by Respondent to be merely the un- lawful fruition of its earlier unfair labor practices and, for the same reasons, to constitute interference with the Sec- tion 7 rights of its employees in violation of Section 8(a)(1) of the Act. Hamilton A.vner Electronics, supra Don Pizzolato, Inc., 249 NLRB 953 (1980), and cases cited therein. F. The Union Majority The parties stipulated that the appropriate unit consist- ed of 123 employees.5 (G.C. Exh. 90) Credible testimony on this record by either the card signers themselves- some 50 authenticated their own cards, most saying they read them first-the solicitors of other cards, and an ex- amination of all the cards, including the 10 cards with accompanying W-4 forms containing the signatures to those 10 cards, establish uncontestably authenticated au- thorization cards, valid on their face, bearing a clear des- ignation of the Union as bargaining representative on behalf of 80 unit employees out of the 123; were execut- ed during the period October 23 to November 8, 1978. Respondent's argument that the cards are nullified by material misrepresentations made to the signers by solici- tors is found not supported by the record. I have already concluded, for the reasons stated, that the cards signed by employees at the October union meetings are valid. As to the remaining cards, employees testified in fairly identifiable similar lots that they were told the cards were for the Union to represent them, to join the Union; that the cards were to get the Union to send a repre- sentative to talk to them; or so that they could attend a meeting to hear what the Union had to offer; to show an interest in having a union; to learn more about the Union; to show an interest sufficient to get an election; for an election; that it was not a vote for the Union; and, in one or two instances at most that the card was only to be used for an election (Rosemary Preda), or other assur- ances reasonably construable to the same effect (Kath- leen Dello). In addition, Respondent elicited impressions from some card signers that the card was for an election. Many card signers' testimony is clear, direct and to the point also, that they signed the card to have the Union represent them and, while the signers' subjective intent is irrelevant, strictly speaking, that fact tends to contradict Respondent's argument that an overview of all the cir- cumstances tends to make the cards wholly unreliable. I find that the stated purposes given employees for signing these unequivocally clear bargaining authorization cards did not negate their stated purpose and that, except for the cards Preda and Dello signed, there is no reason not to rely on them. Accordingly, I find that the Union had been duly designated as bargaining representative by a majority of Respondent's employees in the appropriate I Respondent, contrary to the other parties, would also include (ioldie Thompson in the unit, hut it is unnecessary to make a detlermination on Thompson's status., hich as not treated at the hearing unit by November 8, prior to its demand for recognition on November 14. Jeffrey Manufacturing Division, Dresser Industrie.s, Inc., supra at 10-20; Holiday Inn of Perrysburg, Ohio. supra: and Federal Alarm. 230 NLRB 518, 522 (1977). It follows from the foregoing that Respondent, when it refused to bargain with the Union on November 15, having embarked on a course of committing unfair labor practices designed to impede the exercise of its employ- ees' Section 7 rights beginning with the illegal formation of the Nursing Committee and including the commission of numerous other violations both within and outside the election period time parameters, violated Section 8(a)(5) of the Act as of November 15, 1978. I so find. Albertson IManufacturing Company, 236 NLRB 663 (1978). Respondent's misconduct interfered with the election in Case 29-RC-4400 to a substantial degree so that the results therein warrant nullification by setting aside the election. Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786 (1962). It is recommended, however, in view of the following bargaining order remedy, that said elec- tion be set aside and all proceedings in connection there- with be vacated. IV. HE FFECT OF THE UNI:AIR LABOR PRACT1CES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCI.USIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union and the Nursing Committee are labor or- ganizations within the meaning of Section 2(5) of the Act. 3. The bargaining unit of all registered nurses de- scribed above is a unit appropriate for collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Respondent has violated Section 8(a)(1) of the Act by: (a) promising and granting employment benefits to employees including improvements in sick pay in order to dissuade them from supporting the Union; (b) solicit- ing and thereby promising to resolve grievances from employees to persuade them to abandon the Union; (c) promulgating and discriminatorily enforcing unlawfully broad no-solicitation, no-distribution rules at any time or any place in its hospital; (d) giving the employees the im- pression that their union activities are under surveillance, and keeping employees' protected concerted and union activities under actual surveillance; and (e) threatening to withhold employment benefit increases from employees contingent upon how they voted in an NLRB represen- tation election. 5. Respondent has violated Section 8(a)(2) and (1) of the Act by approving the initiation of the Nursing Corn- 653 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittee, participating in its formation, giving research, support, and other encouragement and assistance to, and by controlling, recognizing and bargaining with, the Nursing Committee over employees' terms and condi- tions of employment. 6. Respondent has violated Section 8(a)(3) and (1) of the Act by discriminatorily transferring Loretta Fisch to a more favorable employment position as infection con- trol nurse because of her support of, and allegiance to, Respondent's campaign to discourage employees' support for the Union. 7. Since November 8, 1978, a majority of the employ- ees in the registered nurses' bargaining unit described above have designated the Union as their exclusive rep- resentative in the unit for purposes of collective bargain- ing and the Union, since November 7, 1978, has been the exclusive bargaining representative of said employees within the meaning of Section 9(a) of the Act. 8. Respondent has on and since November 15, 1978, violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as the representa- tive of its employees in the appropriate unit. Ti R EMII)Y It is now well settled that a bargaining order is war- ranted when an employee's commission of unfair labor practices is serious and extensive in nature, so that a fair election is not a likely or possible means for ascertaining employee wishes. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). Respondent committed very serious unfair labor practices from about the time the Union's organizing campaign was generated by employees through the filing of a petition for an election and there- after. The promises and grants of benefits, solicitation of grievances, formation, support, and control of a puppet employee bargaining committee, discriminatory restric- tions on prounion communications, rewarding transfer of an employee, and threat to withhold benefits were calcu- lated to thwart the Section 7 rights of employees to exer- cise a free choice for representation by the Union. That Respondent succeeded in this, and in its efforts to use the employee committee as a means to such end, is seen most clearly when after the Union had lost the election Nenner dissolved the Nursing Committee noting that it had ". . . served its purpose." A clear presumption can reasonably be drawn that, but for Respondent's unfair labor practices, the Union's majority prior to the election would have been retained. American Map Company, Inc., 219 NLRB 1174 (1975), enfd. 551 F.2d 301 (2d Cir. 1976). It can also be expected, given the powerful effect Respondent's antiunion conduct likely had on its employ- ees, that employees would remain under the influence of Respondent's tactics in any rerun election. Tipton Electric Company and Professional Furniture Company, 242 NLRB 202 (1979). In short, Respondent's solicitation of griev- ances, and responses to employees' proposals through the Nursing Committee controlled by Respondent, whose tactics placed the committee in a preeminent position, presented the strong message to employees that the "out- side" help of the Union was totally unnecessary. National Care & Convalescent Industries, Inc. d/b/a Elmwood Nursing Home, 238 NLRB 346 (1978). Accordingly, I conclude that an election would be an unreliable indica- tion of employee desires for representation and I will grant the General Counsel's request for a bargaining order. Since Respondent's violations are egregious in nature, in addition to cease-and-desist provisions ad- dressed to specific conduct, a broad cease-and-desist pro- vision is warranted. 6 Upon the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, hereby issue the follow- ing recommended: ORDER 7 The Respondent, Ralph Nenner, M.D., Louis Orens, M.D., et al., a partnership d/b/a Deepdale General Hos- pital, New York, New York, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Granting or promising benefits to employees in- cluding improvements in sick pay in order to dissuade them from supporting the Union. However, nothing herein shall require Respondent to withdraw any benefits now being enjoyed by employees. (b) Soliciting grievances from employees and thereby promising benefits to employees to induce them to aban- don the Union. (c) Engaging in surveillance of employees' protected concerted and union activities or creating the impression of surveillance of employees' union activities. (d) Threatening employees that employment benefit in- creases will be withheld depending on how they vote in an NLRB representation election. (e) Promulgating, maintaining, or discriminatorily en- forcing any overly broad rule, prohibiting at any time or any place in the hospital the distribution of literature and solicitation relating to matters involving the exercise by employees of their rights under Section 7 of the Act. (f) Approving the initiation of the Nursing Committee, telling employees to elect members on it, rendering advice, support, and assistance to the committee, and controlling it. (g) Recognizing or bargaining with the Nursing Com- mittee or any member thereof as the representative of its employees concerning terms or conditions of employ- ment. (h) Discriminatorily transferring any employee to a more favorable position because of such employee's sup- port against the Union. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: 6 Cf. Hicwkmo Foods, Inc., 242 NLRB 1357 (1979) In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the find- ilgs. conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted bh the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 654 DEEPDAI.E GENERAL HOSPITALI (a) Upon request, bargain with the Union as the exclu- sive representative of all employees in the unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an un- derstanding is reached, embody such understanding in a signed agreement: All full-time and regular part-time registered nurses, including head nurses and charge nurses, employed by Respondent at its Little Neck hospital in New York City, New York, excluding all other employ- ees, guards, and all supervisors sa defined in the Act. (b) Post at its hospital in New York, New York, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. R In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the ords in the notice reading "Posted bh Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOY EES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full hearing at which the parties had an opportu- nity to present their evidence, the Nation Labor Rela- tions Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice and carry out its terms. The Act gives all employees these rights: To engage in self-organization To form, join, or help a union To bargain collectively through a representa- tive of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT in the future give you or promise to give you improved benefits or anything else of value including sick pay improvements to induce you to stop helping, to stop supporting, or to refrain from voting for District 1199, National Union of Hospital and Health Care Employees, League of Registered Nurses, Retail, Wholesale and Depart ment Store Union, AFL-CIO, or any other labor organization. Wl. WIll NOT solicit grievances from you nor promise benefits to you to induce you to abandon the Union. WE wit l. Nor keep your union or protected con- certed activities under suveillance and wi. wllrl NOt give you the impression that your union activi- ties are under surveillance. WE WILL NOT threaten that increases in employ- ment benefits will be withheld depending on how you vote in an NLRB election. WE Wil.l NOT adopt and unfairly enforce overly broad rules prohibiting at any time or any place in the hospital distribution of literature or solicitation relating to matters involving your exercise of rights guaranteed to you by the Act. WE WIl. NO' approve the initiation of the Nurs- ing Committee or ask you to elect members on it, and WI. Wil.l NOT render assitance to the Nursing Committee, or give support to, or control said com- mittee. WE WIll. Nor recognize or bargain with the Nursing Committee or any one elected by you to become a member thereof as your representative concerning wages, rates of pay, hours of employ- ment, or any other terms and conditions of employ- ment. WE wIt.I Nor discriminatorily transfer any em- ployee to a more favorable job because of such em- ployee's support against the Union. WE Wll. NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours. and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All full-time and regular part-time registered nurses, including head nurses and charge nurses, employed by Respondent at its Little Neck hospi- tal, New York City, New York, excluding all other employees, guards, and all supervisors as defined in the Act. RALPH NENNER, M.D., Louts ORENS, M.D., E AL., A PARTNERSHIP D/BR/A DEEPDALE GENERAl. HOSPITAL ,55