Alta Bates Hospital

National Labor Relations Board - Board Decisions

Oct 18, 1976

226 N.L.R.B. 485 (N.L.R.B. 1976)

ALTA BATES HOSPITAL
Alta Bates Hospital and Hospital and Institutional
Workers Local 250,,Service Employees Internation-
al Union, AFL-CIO- and- Employee Advisory Com-
mittee of Alta Bates Hospital, Party In Interest.
Case 20-CA-10629
October 18, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On June 3, 1976, Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
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, findings,' 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, Alta Bates Hospital,
Berkeley, California, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order.
1 Absent exceptions , we adopt pro forma the Administrative Law Judge's
finding that Respondent 's dealings with the Advisory Committee did not
violate Sec . 8(a)(5) of the Act.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case held April 1, 1976, is based upon an
unfair labor practice charge filed by Hospital And Institu-
tional Workers Local 250, Service Employees International
Union, AFL-CIO, herein called the Union, on September
17, 1975, as amended on January 2, 1976, and a complaint
issued on January 16, 1976, -on behalf of the General Coun-
sel of the National Labor Relations Board, herein called
the Board, by the Regional Director of the Board, Region
485
20, alleging that Alta Bates Hospital, herein called Respon-
dent, has engaged in unfair labor practices within the
meaning, of Section 8(a)(1), (2), and (5) of the National
Labor Relations Act, as amended, herein called the Act.
Respondent filed an answer denying the commission of the
alleged unfair labor practices.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT'
I. JURISDICTION
Alta Bates Hospital, the Respondent, is a hospital in
Berkeley, California, which annually receives gross reve-
nues in excess of $250,000 and purchases and receives sup-
plies valued over $50,000 directly from suppliers located
outside the State of California. Respondent admits, and I
find, it is an employer engaged in commerce within the
meaning of Section-2(6) and (7) of the-Act.
II. THE ISSUES
The essential questions presented for decision are wheth-
er the Employee Advisory Committee of Alta Bates Hospi-
tal, herein called the Advisory Committee, is a labor orga-
nization within the meaning of Section 2(5) of the Act and,
if so, did Respondent, in violation of Section 8(a)(2) and
(1) of the Act, dominate or interfere with the formation
and administrative of the Advisory Committee'and contri-
bute financial aid or other support to its existence. Also in
dispute is whether Respondent violated Section 8(a)(5) and
(1) of the Act by negotiating with the Advisory Committee
over employees' working conditions at a time when these
employees were represented by the Union.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
All but 300 of Respondent's 1,150 employees are repre-
sented by six labor organizations. The Union-admittedly
a statutory labor organization-is the exclusive bargaining
representative of about' 275 of Respondent's employees
who are covered by the terms of a collective-bargaining
agreement between Respondent and the Union. Likewise,
the other unions have separate agreements with Respon-
dent covering the employees they represent.
In early March 19751 Robert Montgomery, Respon-
dent's administrator, who is its principal official, indicated
to Respondent's personnel director, William Hoffman, that
he thought the Hospital needed an advisory committee to
improve communications between the employees and man-
agement. Hoffman introduced this subject to the Respon-
dent's personnel committee, which is composed of the per-
sons in charge of the Hospital's departments. The
personnel committee created a subcommittee composed of
All dates herein unless otherwise specified refer to 1975.
226 NLRB No. 65
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eight employees and four people from management all of
whom were selected by the members of the personnel coin-
mittee. The purpose of the subcommittee was- to-recom-
mend to the personnel committee whether it was feasible to
have an advisory committee and, if so,-what such a'com-
mittee would do and its composition. The subcommittee,
herein called the planning committee, held its first meeting
on-Apnl 1 and thereafter held a series of approximately 11
meetings. These meetings took place during working time
on the hospital premises and the members of the planning
committee were paid for this meeting time. Darwin Fong, a
department head, and William Hoffman, the personnel di-
rector, both of whom were members of the planning com-
mittee were selected by the committee to be its chairperson
and recording secretary respectively.
By early June the planning committee had decided that
an advisory, committee was feasible and had arrived at cer-
tain ideas with respect to the advisory ^committee's pur-
pose, the manner in which it would function, its relation to
the total hospital organizational structure and its composi-
tion and the manner in which its representatives would be
chosen. These ideas were reduced to writing by Hoffman
in the form of the planning committee's minutes and there-
after, in June, Fong and Hoffman jointly drafted a summa-
ry of the planning committee's ideas. This document was
approved by the planning committee and then submitted
to- Respondent's personnel committee and Respondent's
administrative staff for final approval? Approval was
granted.
The recommendations, as approved, provided for an ad-
visory committee of 12 representatives, 8 of whom must be
nonsupervisory' personnel and 4 management personnel
and' further required that the personnel director have a
standing position on the committee as an ex officio mem-
ber for the purpose of consultation. In connection with the
election of these representatives it was provided that all
full-time personnel, including supervision, were qualified
to vote and that the planning committee would conduct the
election.
On June 25, following the approval of the planning
committee's recommendations, Darwin Fong, by memo,
notified all the Hospital's department heads about the
timetable for the formation of the Advisory Committee
and told them:
Since the main purpose of this Committee is to facili-
tate the discussion of employee suggestions or prob-
lems and to allow employees to furnish input into Ad-
ministration, your help- is especially needed in
publicizing its formation and in encouraging your em-
ployees to participate actively in the nomination and
election process.
Needless to say, it is essential that all employees on all
shifts be informed as to the establishment of this com-
mittee. If you would like a member of the personnel
subcommittee I[referring to the planning committee] to
attend one of your departmental meetings, please con-
tact [personnel] to make arrangements.
2 Administrator Montgomery and his two associate administrators and
two assistant administrators comprise the Hospital's administrative staff
They are at the top of the managerial hierarchy
In an effort to generate employeesupport_for'the Advi-
sory Committee the " Responden t in the July-August edition
of the ,hosp'ital- newsletter 'publisfied an article about the
'Committee, entitled , "Ideas ... Problems? What Do You
Do?" The article then states:
Sometimes no matter what you do or whom you talk
to, nothing solves a problem and no one takes action
on a suggestion. You've talked, complained, ex-
plained, requested, but still nothing happens. Maybe
you work while Joe looks busy . . . you've got a way
to streamline relationships with other departments
. .. there's a theft problem in the women's locker
room . . . more shelves are needed in the rest room
... parking . . . employee lounges . . . It's not a
union matter or it doesn't seem to fit any committee
you know of-but a change would just making work-
ing that much better. Check here [ J Employee "Advi-
sory Committee.
In the same edition of the newsletter Administrator Mont-
gomery, in his column "`Memo from: Bob Montgomery,"
also encouraged the employees to support the Advisory
Committe and, among other `things, told them that "the
justification of such a committee is this:"
Providing patient care services is a ,people to people
endeavor. Patients appreciate being cared for by em-
ployees who enjoy their work 'environment and have
high professional standards. All employees . . . enjoy
the hospital and their work when they can influence
and help control those aspects of the work environ-
ment which affect them. We have a number of formal
methods, such as departmental meetings , objective
setting, personnel grievance procedure, suggestion
plan, etc. through which an employee can influence
his work area or procedures.-Nevertheless , some issues
somehow don't get resolved and continue to bother
employees.
During July the employees nominated candidates for
positions on the Advisory Committee and between July
31 and August 4 an election took place with the ballots
being printed and distributed by Respondent with the em-
ployees' paychecks. The Hospital's departments were di-
vided into four groups and the employees in each group
were allowed to elect as their committee representatives
two nonsupervisory personnel and one person from man-
agement. Thus, the composition of the elected- Advisory
Committee consisted of eight rank-and-file persons and
four persons from management plus William Hoffman, the
Hospital's personnel director who, as described supra, was
an ex officio representative.
The Advisory Committee first met on August 26 and
thereafter met monthly. The four elected management per-
sons, as well as Personnel Director Hoffman, in addition to
the eight elected rank-and-file persons attended these
meetings.
The Committee at its meeting of October 23 approved a
set of bylaws which were drafted by Department Head
'The ballots were tallied by four persons including Department Head
Tohn and Personnel Director Hoffman.
ALTA BATES HOSPITAL
Fong and Personnel Director Hoffman.' The bylaws were
subject to the approval of top management. In this regard,
the minutes of the Advisory Committee's November 11
meeting indicate: "The Bylaws have been submitted to
Robert Montgomery [Respondent's Administrator] and he
will discuss them with the administrative staff." The by-
laws, which were approved by Respondent, in pertinent
part read:
Article 11
Purpose
Section 1(a) To facilitate the discussion of any -is-
sues that might concern employees in their work envi-
ronment and to direct these items to the proper source
for resolution.
(b) To establish better, relations between all em-
ployees at Alta Bates Hospital irrespective of job de-
scription, title or department.
(c) To provide a mechanism for employees to sub-
mit ideas concerning new proposals about the
Hospital's operation, methods for improving the work
environment; and/or ' the identification of possible
problem areas at the Hospital to Administration.
(d) To improve communication between depart-
ment, medical staff, volunteers, patients and commu-
nity.
Article III
Committee Process
Section 1(a) Receiving Input
1. All questions, suggestions , issues and problems
should be submitted in writing utilizing the standard
form 5 to be provided by the Committee.
* *
3. Employee, who has submitted the form may be
asked to be present at the advisory committee meeting
for the purpose of discussing the item in question
Section 2(a) Screening Input
1. There shall be a screening sub-committee which
shall meet regularly to screen submissions in order to
determine the appropriateness for discussion by the
employee advisory committee .. 6
Article IV
Nominations and Elections of Committee Representa-
tives
* * * * *
° The bylaws were for the most part already incorporated in the recom-
mendations which the planning committee had submitted in June for the
approval of Respondent's administrative staff As described supra, these
recommendations were also drafted by Fong and Hoffman based on the
minutes of the planning committee's meetings which had been reduced into
writing by Hoffman
5 At an early meeting of the Advisory Committee such a form was devised
and is called an "action request form"
6 This subcommittee was formed at an early meeting of the Advisory
Committee and the person selected as its chairperson was Department Head
Fong. There is no evidence that he was ever replaced as chairperson.
487
Section 2(a) The Advisory Committee will be com-
posed of 12 representatives. Eight representatives must
be hourly employees (below the level of department
head). The other four must consist of . department
heads and/or a member of the Administrative Staff
. ... The Director of Personnel will have a- standing
position on the Advisory Committee as an ex officio
member for the purpose of consultation.
Article V
Committee Meetings
* *
Section 3(a) The Chairperson with at least one
other member shall meet regularly with the Executive
Vice President of [Respondent], or his designee, at
which time the Employee Advisory Committee recom-
mendations will be submitted for consideration by the
Administrative Staff.
Section 4(a) Paid release time-2 hours per month.
1. Employee Advisory Committee members shall
be able to perform the screening and regular monthly
functions during their regular hours of scheduled
work, without loss of pay.
2. Any Alta Bates employees who appear at a meet-
ing of the Employee Advisory Committee for the pur-
pose of explaining an item which has been placed on
the agenda, shall be able to do so during regular hours
of scheduled work without loss of pay.
*
Article IX
Bylaws Amendments
These Bylaws may be amended in the following
manner:
*
3. The proposed amendment with the approval
of the Administrative Staff will be voted upon [by
the Advisory Committee] as to the incorporation
into the Bylaws.
The Advisory Committee has no income thus it is entire-
ly dependent upon Respondent in its day-to-day opera-
tions. Respondent printed and distributed the ballots for
the Committee's election. Meetings are held during work-
ing time on the hospital premises without the employees
suffering any loss of pay. Respondent allows the Commit-
tee to use a portion of the hospital bulletin board and the
hospital newsletter to publicize its activities and permits
the Committee to use the hospital's mail system to distrib-
ute the minutes of the Committee's meetings and to use a
space outside the hospital canteen to display "action re-
quest" forms for employees to fill out and deposit in a box
provided by Respondent.
During the 6-month period from October 1975 through
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 1976 employees submitted a number of "action re-
quest" forms to the Advisory Committe-:which the Commit-
tee brought to the attention of management. Of these, the
seven described below, concerned employees' "grievances"
or "conditions of work."
1. Employees employed- on the night shift complained
that the food available which came from vending machines
was often unsatisfactory and of a limited variety. They re-
quested that the cafeteria facilities remain open at night.
Advisory Committee representatives spoke about this to
Frank Wells, Respondent's director of food service, who
thereafter informed the Committee that he had spoken to
Associate Administrator Adams who would conduct a sur-
vey to determine how many employees employed on the
night shift would like fresh food. The result was that Re-
spondent made available additional types of food, as well
as warm-meals, for the people-employed on the night shift.
2. The patient care representatives, clerical employees,
employed in the Hospital's business office complained they
had insufficient manpower to handle their workload, that
holiday scheduling was not realistic, that sick employees
were required to come to work, and their grievances were
not being seriously considered by supervision. Representa-
tives of -the Advisory Committee investigated these griev-
ances-they spoke to the grievants and their immediate
supervision. The Committee's chairperson, David Pugatch,
spoke to Administrator Montgomery about this matter.
Montgomery indicated he was aware of the situation and
that Respondent was taking measures to remedy the situa-
tion. The minutes of the Committee's February 18, 1976,
meeting comment about this grievance in the following
terms: "The Employee Committee is pleased to note that
since the investigation of information supplied to the Com-
mittee the Business Office has made some changes in the
work systems of the patient care representatives."
3. Employees complained about the lack of current in-
formation about the vacation and sick leave they had ac-
crued and asked that Respondent make available the num-
ber of days of accrued vacation and sick leave
accumulated by employees. The Advisory Committee's
representatives submitted this request to Personnel Direc-
tor Hoffman who agreed to make the accrued vacation
information available on the employees' check stubs and
took under consideration the possibility of doing the same
for accrued-sick leave.
4. A nurse complained that the newly constructed nurs-
es' lounges and locker facilities, where the nurses spent
their break periods and changed their clothes, were incom-
pletely furnished. The Advisory Committee 's representa-
tives spoke to management about this and were informed
that due to fire regulations the furniture originally pur-
chased was deemed unsafe and new furniture had to be
ordered, thus,'the delay.
5. The night shift employees requested that an intercom
be installed outside the Hospital adjacent to the employee
parking lot so that'in the case of an'emergency, i.e., em-
ployees being 'attacked at night in the parking lot, the em-
ployees would be able to summon help from within the
Hospital. The Advisory Committee's representatives sub-
mitted this request to the Hospital's chief of security who
has taken it under consideration.
6. A nurse asked that Spanish language instruction, pam-
phlets, i.e., instructions for new mothers, which would help
the nurses who spoke no Spanish to communicate with the
Spanish-speaking patients, be made available to the pa-
tients. The Advisory Committee brought this request to the
attention of the Hospital's service education department
which is considering the matter.
7. An employee informed the Advisory Committee that,
"several employees have expressed an interest in having a
suggestion box specifically for cafeteria suggestions, com-
plaints, etc. An attached bulletin board next to the box for
responses would also be useful." The Advisory -Committee
brought this request to the attention of management'which
has agreed to install such a suggestion box. - '
B. Discussion and Conclusionary Findings
1. The violation of Section 8(a)(2)
Section 8(a)(2) of the Act makes it an unfair labor prac-
tice for an employer "to dominate or interfere with the
formation or -administration of any labor-organization or
contribute financial or other support to it...." The Gen-
eral Counsel contends that the Advisory Committee is a
dominated labor organization and seeks an.order disestab-
lishing it. Respondent contends that the Advisory Commit-
tee is not a labor organization within the meaning of the
Act and, even if it is, that the record does not establish that
it is a dominated organization. I.shall evaluate the evidence
pertinent to the Committee's status as a statutory labor
organization and then evaluate the evidence pertinent to its
status as a dominated organization.
a. The Committee's status as a labor organization
The statutory definition of a labor organization as set
out in Section 2(5)-is very broad and reaches "any organi-
zation of any kind . . . in which employees participate and
which exists for the purpose . . . in part, of dealing with
employers concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work."
The statute has been broadly construed with respect to the
type of interchange between the parties which' may be
deemed "dealing with." N.L.R.B. v. Cabot Carbon Compa-
ny and Cabot Shops, Inc., 360 U.S. 203, 213 (1959).
In the instant case it is undisputed that the Advisory
Committee is an organization "in which employees partici-
pate" and, I am also of the opinion, that the Committee
"exists for the purpose ... in part, of dealing with [Res-
pondent] concerning grievances, labor disputes . . . or
conditions of work." In reaching this conclusion I have
considered the following: (1) the declared purposes of the
Committee set forth in its bylaws; (2) the admissions made
by representatives of Respondent who were a party to the
creation of the Committee; and (3) the manner in which
the Committee has actually functioned.
(1) Article II of the bylaws states that, in part, the "pur-
pose" of the Committee is:
To facilitate the discussion of any issues that might
concern employees in their work environment and to
direct these items to the proper sources for resolution.
ALTA BATES HOSPITAL 489
* * * * * because of unans d 1' t AA P-1 h bwere com
To provide a mechanism for employees to submit
ideas concerning new proposals about the hospital's
operations, methods for improving the work environ-
ment, and/or the identification of possible problem
areas at the hospital to Administration.
The bylaws then provide a mechanism for employees to
submit "questions , suggestions , issues and problems . . . in
writing" to the Advisory Committee which are first mvesti-
gated by a screening subcommittee prior to their submis-
sion to the full Advisory Committee. The employees'
"questions ," "suggestions," or "problems" which the Advi-
sory Committee deems meritorious are submitted by the
Committee to management for consideration . In this re-
gard, article V in pertinent part states that "the [Advisory
Committee's] chairperson with at least one other member
shall meet regularly with the Executive Vice President of
Alta Bates Hospital, or his designee, at which time the Em-
ployee Advisory Committee recommendations will be sub-
mitted for consideration by the Administrative Staff."
(2) That the purpose of the Advisory Committee is in
part to deal with Respondent concerning employees' work-
related grievances , labor disputes, or conditions of work is
further established by Respondent's comments about the
Advisory Committee made in the Hospital's newsletter and
the admissions of Department Head Fong and Personnel
Director Hoffman who were intimately involved in the
Committee's formation and are currently members of the
Committee.
The Hospital's newsletter published by Respondent in-
formed the employees that the Advisory Committee was
being created to, among other things, help the employees
resolve unanswered problems. The article illustrated_ the
types of employee problems which would be dealt with by
the Committee as including, but not limited to, the prob-
lem of stealing in the employee locker room, a lack , of
shelving in the employees' restrooms , "parking," "employ-
ee lounge" and employees ' complaints that while they work
others are loafing. Likewise , in the same issue of the news-
letter, Administrator Montgomery told the employees that
one of the reasons for forming the Advisory Committee
was to provide the employees with another means to "in-
fluence and help control those aspects of the work environ-
ment which affect them."
Department Head Fong, the chairperson of the planning
committee, notified all of the Hospital's department heads
that "the main purpose of [the Advisory Committee] is to
facilitate the discussion of employee suggestions or prob-
lems and to allow employees to furnish input into [the]
Administration." And, Fong testified that two of the rea-
sons for forming the Advisory Committee were to improve
communications between management and the employees
and to improve the employees' work environment. Specifi-
cally, he testified that the Committee's purpose was to keep
"the lines [of communication ] open so that people could
have a forum for identifying ... possible problem areas,
submitting ideas to ...- the Administration. . . . And we
felt a committee like this needed to keep that [communica-
tion] bridge very short . . . it was felt by the Committee
that much of the reasons for . . . low productivity was
p am s. n so we t at y
creating an atmosphere where people could get these com-
plaints out in the open and out of the way, that we would
in turn be creating an environment which [would] help as
far as the creativity and the productivity of the persons
involved." Fong admitted that one of the functions of the
Advisory Committee was to receive employees ' complaints
which the Committee would investigate and present to
management . Likewise, Personnel Director Hoffman ad-
mitted that the Committee's bylaws contemplated that any
one of the approximately 300 hospital employees, not rep-
resented by one of the six unions Respondent had con-
tracts with, could grieve to the Committee that supervision
was treating them unfairly and that the Committee would
investigate the grievance and if it was deemed meritorious
it would be forwarded to top management for its consider-
ation. Finally, Fong testified:
Our thinking as a committee was that if we could get
the [employees'] complaints out of the way, then the
individuals would in turn become . . . less concerned
with the problems they face because they've been
solved. And then they would be more at ease in taking
care of the patients , which is the ultimate goal of the
hospital.
(3) Not only do the Advisory Committee's bylaws and
Respondent's admissions establish that one purpose of the
Committee is to deal with the Respondent concerning em-
ployees' grievances , labor disputes, and conditions of work
but, additionally, as described in detail supra, the employ-
ees in fact transmit grievances and requests to the Commit-
tee concerning their conditions of work which the Commit-
tee brings to the attention of Respondent which takes these
matters under consideration and, in some instances, has
acted favorably upon them.'
Based on all of the circumstances set forth above, I find
that the Advisory Committee is an organization in which
employees participate and which exists for the purpose, in
part , of dealing with the Respondent concerning griev-
ances, labor disputes , and conditions of work , thus, it is a
labor organization within the meaning of Section 2(5) of
the Act . I have carefully considered Respondent 's argu-
ment that the Committee is not a labor organization be-
cause it does not bargain with the Respondent. Specifical-
ly, Respondent urges:
The committee is limited to advising management or
advising the department heads as to the existence of a
problem. They are free to propose solutions. However,
7 These grievances and requests , described supra, dealt with the following'
(1) a grievance about the poor quality and the lack of variety of the food
made available to the night shift employees ; (2) a grievance that a group of
clerical employees were overworked and treated unfairly concerning sick
leave and holiday leave ; (3) a request that the Hospital provide the employ-
ees with current information about the number of days of sick leave and
vacation which they had accrued ; (4) a complaint that the nurses' lounge
and locker facilities were not completely furnished; (5) a request that an
intercom be installed at the employees ' parking lot for use by the night shift
employees ; (6) a request that a suggestion box be installed for employees in
the Hospitals cafeteria; and (7 ) a request that Spanish-speaking patients be
furnished with instruction pamphlets printed in Spanish to aid the non-
Spanish-speaking nurses in communicating with these patients
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they have no authority, whatsoever, to take any final
action or to negotiate with management regarding
what action, if any, should be taken. Its function is
solely to advise management of the existence of a
problem, to delve into it and make the details avail-
able so that management can make an intelligent deci-
sion.
The United States Supreme Court, however, has rejected
this argument, holding that a committee may be "dealing
with" an employer-and hence be a labor organization as
defined in Section 2(5), even though its activities may not
be equated with the usual concept of collective bargaining.
N. L. R. B. v. Cabot Carbon Company, supra at 210-211, 214,
and fn. 15. I am persuaded that the record herein estab-
lishes that the Advisory Committee was created and exists
for the purpose, at least in part, of "dealing with" the Re-
spondent within the meaning of Section 2(5) of the Act.
b. The Committee's status as a dominated labor
organization
I find the Advisory Committee is a dominated labor or-
ganization for these reasons:
(1) Respondent instigated and created the Advisory
Committee
The idea for the Advisory Committee was Respondent's
which then suggested the idea to its employees and encour-
aged the formation of the Committee. Respondent hand-
picked a planning committee, which was designated as a
subcommittee of management's personnel committee, to
investigate the feasibility of forming an Advisory Commit-
tee. The planning committee conducted its business on
working time without any loss of pay. It included four per-
sons from management one of whom, Department Head
Fong, was the Committee's chairperson, and another, Per-
sonnel Director Hoffman, was the Committee's recording
secretary. The planning committee's ideas for the creation
of the Advisory Committee were reduced into writing by
Department Head Fong and Personnel Director' Hoffman
and submitted to top management. Only after top manage-
ment read over and approved the planning committee's
ideas was it given the authority to schedule elections to
elect representatives for the Advisory Committee, Respon-
dent instructed all the hospital department heads to publi-
cize the Committee's formation and to encourage the em-
ployees under their supervision to actively participate in
nominating and electing representatives to the Committee
and to support the Committee.8 Also the ballots used in the
nomination and election process were printed by Respon-
dent and distributed by Respondent with the employees'
pay checks. Personnel Director Hoffman and Department
Head Tolin helped tally the ballots.
All of the aforesaid circumstances in their entirety estab-
lish that the Advisory Committee was instigated and creat-
ed by Respondent.
(2) Respondent is in a position to exercise and in fact
does exercise substantial control over the administration
of the Advisory Committee
Respondent exercised a veto power over the adoption of
the Committee's bylaws. The bylaws went into effect only
after Respondent's top management read and approved
their content.' In addition, the Committee by the terms of
the bylaws is without the power to change the bylaws with-
out first receiving the approval of the Hospital's top man-
agement.
The bylaws require that 4 of the 12 representatives elect-
ed to the Advisory Committee be from the ranks of man-
agement and that Respondent's director of personnel must
have a standing position on the Committee as an ex officio
member "for the purpose of consultation."
As a matter of fact the minutes of the Advisory
Committee's meetings reveal that the management repre-
sentatives, including Personnel Director Hoffman, attend
the meetings and participate in the deliberations, vote on
any action recommended,10 and are in a position to ob-
serve the voting of the employee committee members. In
addition, Department Head Fong, a committee representa-
tive, is the chairperson of the screening subcommittee
which screens employees' requests and complaints to de-
termine their appropriateness for consideration by the Ad-
visory Committee. In this regard, Personnel Director Hoff-
man testified that in the case of a disagreement between
himself and the Advisory Committee over whether it is ap-
propriate for the Committee to consider a particular em-
ployee problem, i.e., a matter covered by one of the union
contracts, that Hoffman in his position as an ex officio
member of the Committee has the power to override the
wishes of the Committee.
The foregoing circumstances, in their entirety, establish
that Respondent is in a position to exercise and in fact does
exercise substantial control over the administration of the
Advisory Committee.
(3) Respondent assists and supports the Advisory
Committee
The Advisory Committee has no revenues from dues or
any other sources and owns no assets or facilities. Without
funds, the organization has little choice but to hold even its
internal meetings on the hospital premises, and to let Re-
spondent provide it with such important services as the
printing and distribution of ballots for the nomination
and/or election of committee representatives, the distribu-
tion through the intrahospital mail service of the minutes
of the Committee's meetings, the use of the hospital bulle-
tin board and the hospital newsletter to publicize the
Committee's activities, and the-use of an area in the Hospi-
tal for employees to fill out and submit action request
9 The bylaws which were reduced to writing by Department Head Fong
8 Similarly in its hospital newsletter Respondent publicized the formation and Personnel Director Hoffman embody the ideas of the planning commit-
of the Advisory Committee and asked the employees to support the Com- tee which, as described supra, included four members of management
mittee 10 Hoffman apparently does not vote
ALTA BATES HOSPITAL
forms for the Committee's consideration. In addition, Re-
spondent permits the Advisory Committee to meet during
working time without any loss of wages and allows employ-
ees who have business with the Committee to attend such
meetings without any loss of wages. The aforesaid assis-
tance and support operates, in my opinion, as an addition-
al aspect of control which assures Respondent's position of
domination over the Committee.
Based upon the aforesaid circumstances, taken in their
totality, I find that the Advisory Committee is a dominated
labor organization, thus, as alleged in the complaint, I fur-
ther find that Respondent has violated Section 8(a)(2) and
(1) of the Act.
I have considered the fact that Respondent created the
Advisory Committee with the best of intentions, it was not
motivated by any desire to undermine the Charging Par-
ty-the Union-or any of the several other unions with
whom it has bargaining relations. Respondent's motivation
was premised upon its belief that if employees have easy
access to an advisory committee with their unanswered
problems or requests that they are happier with their work
environment and, since satisfied employees tend to do bet-
ter work, they will take better care of the hospital patients.
This is not a convincing defense, however, because Section
8(a)(2) unqualifiedly forbids an employer "to dominate or
interfere with the formation or administration of any labor
organization ...." The statute forbids all employer inter-
ference or domination whether benevolent or malevolent.
N.L.R.B. v. Newport News Shipbuilding & Dry Dock Co.,
308 U.S. 241, 251 (1939). If Respondent is contending that
the nature of a hospital is such that hospitals are justified
in creating dominated labor organizations so long as the
purpose of creating such an organization is to improve pa-
tient care,11 I can find nothing in the legislative history of
the recent health care amendments or the amendments
themselves to support this contention. I recognize that an
important goal of the health care amendments was to safe-
guard patient care and that to meet this extraordinary need
of the health care industry that Congress added several
provisions to the Act. However, I can find nothing in the
amended Act or in its legislative history which indicates
that Congress intended to give the Board the authority to
interpret Section 2(5) and Section 8(a)(2) of the Act differ-
ently when applying these provisions to employers in the
healthcare industry. Indeed, in an area where the Board
does have the discretion to promulgate different rules for
different industries it has held that its, preamendment poli-
cies with regard to rules prohibiting union solicitation and
distribution are equally applicable to health care institu-
tions. St. John's Hospital and School of Nursing, Inc., 222
NLRB 1150 (1976).
2. The violation of Section 8(a)(5)
The Union represents approximately 275 of Respon-
dent's employees in an appropriate unit and, with Respon-
11 In the appendix to its postheanng brief Respondent urges that the en-
actment of the recent health care amendments to the Act signifies that "the
underlying protection of employees under the [Act] has been tempered by
protection of patients in hospitals "
491
dent, is party to a collective-bargaining agreement covering
these employees. The complaint alleges that by meeting
with and engaging in negotiations with the Advisory Com-
mittee Respondent violated its obligation to bargain with
the Union as defined in Section 8(a)(5) of the Act.12 I do
not agree that a preponderance of the evidence supports
this conclusion.
Respondent, as I have found supra, formed and main-
tained the Advisory Committee with the best of intentions,
not out of any desire to undermine the Union. In addition,
at all times material Respondent clearly indicated to the
employees that it was not the business of the Advisory
Committee to handle grievances or other matters covered
by the collective-bargaining agreement in effect between
the Respondent and the several unions and that such mat-
ters would not be considered by the, Committee but would
be referred to the appropriate union. 13 Finally, a significant
consideration in deciding whether Respondent has violated
its statutory obligation to bargain with the Union is the
fact that even though the Committee and Respondent have
been "dealing with" each other-within the meaning of Sec-
tion 2(5) of the Act they have not engaged in collective-
bargaining negotiations as defined and contemplated by
Section 8(d) and 8(a)(5) of the Act. Thus, as described su-
pra, the Advisory Committee after investigating employees'
grievances or requests simply transmits them to manage-
ment which takes them under consideration. While this
conduct constitutes, "dealing with" within the meaning of
Section 2(5) of the Act it does not reach the level of collec-
tive-bargaining negotiations contemplated by Section 8(d)
and 8(a)(5) of the Act. See N.L.R.B. v. Cabot Carbon Com-
pany, supra.
Based on the aforesaid circumstances, taken in their to-
tality, I shall recommend that this portion of the complaint
be dismissed.
CONCLUSIONS OF LAW
1. Alta Bates Hospital, the Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Employee Advisory Committee of Alta Bates Hospi-
tal, the Advisory Committee, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By dominating and interfering with the formation
and administration of the Advisory Committee and by
contributing financial and other support to it, the Respon-
dent has violated and is violating Section 8(a)(2) and (1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not otherwise violated the Act.
12
The complaint does not allege that Respondent violated Sec. 8(a)(5) by
changing the employees' working conditions unilaterally without notifying
the Union
13 The Advisory Committee's bylaws-sec 2 (a) of art III-require that
matters submitted by employees to the Committee which "fall within the
area of a labor union's jurisdiction must be referred to the department head,
appropriate shop steward, or the personnel department " Likewise in its
newsletter Respondent told the employees that "the Committee cannot ad-
dress itself to issues which must be resolved in accordance with Union
contract grievance procedures "
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take the necessary affirmative
action to effectuate the policies of the Act.
Having found that Respondent has illegally dominated
and interfered with the formation and administration of
the Advisory Committee and has contributed financial and
other support to it, I will recommend that Respondent per-
manently withdraw and withhold all recognition from, and
completely disestablish, the Advisory Committee or' any
successor thereto as a bargaining representative of any of
its employees.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 14
Respondent , Alta Bates Hospital, Berkeley, California,
its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Assisting , dominating , contributing financial or
other support to, or interfering with , the administration of
the Employee Advisory Committee of Alta Bates Hospital,
or any other labor organization.
(b) Recognizing the Employee Advisory Committee of
Alta Bates Hospital , or any successor thereto, as the repre-
sentative of any of its employees for the purpose of dealing
with Respondent concerning grievances , labor disputes,
wages, rates of pay, hours of employment , or conditions of
work.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from, and
completely disestablish, the Employee Advisory Commit-
tee of Alta Bates Hospital, or any successor thereto, as the
representative of any of its employees for the purpose of
14 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 findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
dealing with Respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or condi-
tions of work.
(b) Post at its place of business in Berkeley, California,
copies of the attached notice marked "Appendix." 15 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 20, after being duly signed by Respon-
dent's representative, shall be posted immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify, the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges that the Respondent
violated the Act other than found herein.
15 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board," shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist, dominate, contribute financial
or other support to, or interfere with, the administra-
tion of the Employee Advisory Committee of Alta
Bates Hospital, or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights guaranteed by Section 7 of the Act.
WE WILL withdraw and withhold all recognition
from, and completely disestablish, the Employee Ad-
visory Committee of Alta Bates Hospital, or any suc-
cessor, as the representative of any of our employees
for the purpose of dealing with us concerning griev-
ances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.
ALTA BATES HOSPITAL