Methodist Hospital of Gary, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1982

263 N.L.R.B. 411 (N.L.R.B. 1982)

METHODIST HOSPITAL OF GARY, INC.
Methodist Hospital of Gary, Inc. and 1199 Indiana,
a Division of National Union of Hospital and
Health Care Employees, RWDSU, AFL-CIO.
Case 13-CA-20933
August 16, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On March 2, 1982, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief,' the General
Counsel filed cross-exceptions and a supporting
brief, and both parties filed answering briefs.
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, 2 and conclusions3 of the Administrative Law
Judge and to adopt her recommended Order.
I Respondent has requested oral argument. Thereafter, the General
Counsel filed an opposition thereto. Respondent's request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties. Additionally, Respondent has filed
a "Motion to Reopen and/or Supplement the Record," together with
supporting affidavits, in which it is alleged that there have been substan-
tial changes since the hearing with regard to expansion of its facilities and
increase in its personnel which would affect the decision herein. Thereaf-
ter, the General Counsel filed an opposition thereto. We hereby deny Re-
spondent's motion as lacking in merit. Accordingly, we find it unneces-
sary to pass on the General Counsel's motion to strike the affidavits sub-
mitted by Respondent.
' 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 her find-
ings.
In sec. II,D, of her Decision, the Administrative Law Judge inadvert-
ently stated that the employee grievance committee election was held
about I month before the date the Union planned to conduct its election
for employee representatives to its bargaining committee. This inadver-
tent error is insufficient to affect our decision.
s In adopting the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(aXI) of the Act, we emphasize the facts that Re-
spondent refused to permit the holding of an election, to be conducted by
employees, of employee representatives to the Union's bargaining com-
mittee and that all bargaining unit employees were free to participate in
the election. Additionally, we find it unnecessary to pass on whether Re-
spondent's conduct would have violated the Act in the absence of dis-
crimination. Further, in adopting the Administrative Law Judge's finding
that Respondent's conduct was discriminatory, we rely solely on the fact
that Respondent previously permitted a grievance committee election
among its unrepresented employees to be held in its cafetenas during
mealtimes.
Chairman Van de Water and Member Hunter, in agreeing with the
Administrative Law Judge's finding that the Union had not waived the
employees' right to use the cafeterias to conduct the bargaining commit-
tee election, find it unnecessary to pass on her reliance on Gary-Hobart
263 NLRB No. 54
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, Methodist Hos-
pital of Gary, Inc., Gary and Merrillville, Indiana,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
Water Corporution, 210 NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir.
1975), cert. denied 423 U.S. 925.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard before me in Chicago, Illinois, on August
21, 1981, pursuant to a charge filed on March 13, 1981,
and a complaint issued on April 17, 1981. The question
presented is whether Respondent Methodist Hospital of
Gary. Inc., violated Section 8(a)(1) of the National
Labor Relations Act, as amended (herein the Act), by re-
fusing to permit the use of its cafeterias during the
voters' nonworking time for the purpose of conducting
an election, in which all unit members were eligible to
vote, to select members of the contract negotiating com-
mittee for 1199 Indiana, a Division of National Union of
Hospital and Health Care Employees, RWDSU, AFL-
CIO (herein the Union), the unit employees' certified
bargaining representative.
On the basis of the entire record, including the demea-
nor of the witnesses, and after due consideration of the
helpful briefs filed by counsel for the General Counsel
and by Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a not-for-profit corporation which oper-
ates two hospital facilities, one in Gary, Indiana, and one
in Merrillville, Indiana. During the calendar or fiscal
year preceding the issuance of the complaint, a repre-
sentative period, Respondent's gross revenues exceeded
$250,000, and Respondent purchased goods and supplies
valued in excess of $50,000 which were directly shipped
to its Indiana facilities from points outside Indiana. I find
that, as Respondent concedes, Respondent is engaged in
commerce within the meaning of the Act, and that exer-
cise of jurisdiction over its operations will effectuate the
policies of the Act.
The Union is a labor organization within the meaning
of the Act.
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Refusal To Permit the Conduct in its
Cafeterias of Elections To Select Employee Members
of Union Bargaining Committee
Since December 29, 1978, the Union has been the cer-
tified collective-bargaining representative of Respond-
ent's service and maintenance employees at Respondent's
Gary (Northlake) and Merrillville (Southlake) hospitals.
The union-security clause in Respondent's initial contract
with the Union, effective between June 1979 and May
31, 1981, was inapplicable to employees who were on the
payroll and were nonmembers at the time the contract
was signed, and who never joined thereafter. About 625
employees are in the bargaining unit--400 at the Gary
facility and 225 at the Merrillville facility. Of these em-
ployees, about 400-300 at the Gary facility and 100 at
the Merrillville facility-were union members.
The initial collective-bargaining agreement between
the parties was due to expire on May 31, 1981.1 The
Union decided to have all unit employees, rather than
just members of the Union, participate in an election for
an employee committee to negotiate a new collective-
bargaining representative.
In late February, Tiney Ross, who is a full-time paid
organizer for the Union, telephoned Respondent's per-
sonnel director. Karen Durso. Ross said that contract ne-
gotiations were soon to begin, and that she would like
for Ross and John DiNicola, also a full-time paid union
organizer, to come to "the cafeteria" and hold an elec-
tion for a negotiating committee. Ross stated that they
wanted to hold this election on March 3 between 11 a.m.
and I p.m. and between 5 and 6 p.m. 2 Durso replied that
she would "get back to" Ross. In late February, Ross
telephoned Durso about a grievance. After discussing the
grievance, Ross told Durso, ". . . you never got back to
me yet, whether we could use the cafeteria." Durso said
that she would get back to Ross that afternoon or the
next day. Inferentially within this time frame, Durso's
secretary telephoned Ross and said that she and DiNi-
cola could not have the election "in the cafeteria." 3
On March 2, following an arbitration meeting, Ross,
DiNicola, Durso, and hospital attorneys Bruce Sayers
and Edward Bergmann had a conversation outside the
hotel conference room where the arbitration proceeding
had been conducted. DiNicola asked why he and Ross
I All dates hereafter are 1981 unless otherwise stated.
2 Gary employee Priscella Wilson testified without contradiction that
the Gary cafeteria is open from 6:30 to 8:30 a.m., from 9:30 to 10:30 a.m.,
from II a.m. to 1:15 p.m., and from 4:30 to 6:15 p.m. Merrillville employ-
ee Johnnie Andrews, who works either from 7:30 a.m. to 4 p.m. or from
8 a.m. to 4:30 p.m., testified without contradiction that the Merrillville
cafeteria is open from 11 a.m. to 1:30 p.m., from 2 to 4 p.m., and from
4:30 p.m. until "I don't know what time in the afternoon since I don't
work then." The January 1980 grievance committee election (discussed
infra) for nonunit employees was held in both cafeterias from 6:30 to 8:30
and 9:30 to 10:30 a.m., from II a.m. to 1:15 p.m., and from 4:45 to 6 p.m.
Respondent's brief states (p. 7) that both cafeterias have the same hours
of operation.
3 My findings in this paragraph are based on Ross' testimony. Durso
gave essentially the same version of these conversations, but testified that
the parties thereto were herself and DiNicola. For demeanor reasons, I
credit Ross. However, the results herein would be the same if I credited
Durso instead.
could not hold the election in "the cafeteria," and assert-
ed that such elections had been held "down the street" in
St. Mary's Medical Center without any problems. Durso
replied that the election could not be held in the hospital
cafeteria because it was "Contrary to hospital policy"
and "because we do not want the employees to favor, to
think we favor the Union," and that the Union could
hold these elections at the union hall. Sayers started to
say, ". . . well, maybe we can talk about it." Durso then
asked him to talk with her in private, and they went into
the conference room. When they came out, Sayers said
that DiNicola and Ross could not hold the election in
the cafeteria. DiNicola asked if "this was [Respondent's]
intent with regard to the upcoming negotiations, that
[Respondent was] taking a stand, because of that." Re-
spondent replied that "it had nothing at all to do with
that." DiNicola said that the Union would get the dele-
gates (all of them employees of Respondent) to hold the
election.4 Nothing further was said at that time about the
election; the parties proceeded to discuss negotiation
dates. In refusing to permit the Union to conduct an
election, neither Durso nor Bergmann said that the
reason the Union could not hold it was that Ross and
DiNicola were going to be conducting it; nor is there
any evidence that any other representative of manage-
ment so stated.5
Thereafter, Ross and DiNicola telephoned the dele-
gates and asked them to come in for a meeting, where
they were given oral instructions about how to conduct
the negotiating committee election. Also, Ross and DiNi-
cola prepared the following flier under the Union's let-
terhead, and gave copies to the delegates at the meeting:
NEGOTIATING COMMITTEE
VOTING
DATE: THURSDAY-MARCH 5, 1981
TIME: 11:00--1:00 P.M.
AND 5:00-6:00 P.M.
PLACE: CAFETERIA
VOTING FOR A NEGOTIATING COMMIT-
TEE WILL TAKE PLACE THIS COMING
THURSDAY, MARCH 5th. at THE HOSPITAL.
THE VOTING WILL BE DONE DURING THE
TIMES LISTED ABOVE. VOTES MAY ALSO
BE CAST FROM 9:00 A.M. TO 5:00 P.M. AT
THE . . . UNION HALL AT 745 E. RIDGE
ROAD IN GARY.
4 There are 11 Gary delegates and 6 Merrillville delegates, all of
whom file employee grievances.
a My findings in this paragraph are based on Ross' testimony and
credible parts of Durso's testimony. Durso testified that Respondent
denied the Union permission to hold the election at the hospital, and
DiNicola said that the Union "would have the election anyhow," to
which Respondent replied that "that would not be wise, since we had not
granted permission to do so." Durso could not "recall" that anything was
said about delegates. For demeanor reasons, I credit Ross. As described
infra, attempts to hold elections were thereafter made by the delegates;
and there is no evidence that Ross or DiNicola thereafter made any at-
tempt on hospital property to engage in such activity. In any event, it is
uncontradicted that the Union advised Respondent, through an admitted
supervisor, L.arry Mangold, that the scheduled elections were to be con-
ducted by the delegates (see infra).
412
METHODIST HOSPITAL OF GARY, INC.
THE COMMITTEE ELECTED WILL BEGIN
NEGOTIATIONS WITH [RESPONDENT]
SOON FOR A NEW CONTRACT. WE NEED
THE STRONGEST POSSIBLE REPRESENTA-
TIVES TO SERVE ON THE NEGOTIATING
COMMITTEE IN ORDER TO WIN THE BEST
CONTRACT. CHOOSE WISELY. VOTES CAN
BE CAST FOR PEOPLE ALREADY NOMI-
NATED OR NEW PEOPLE CAN BE WRIT-
TEN IN AT VOTING TIME.
BE SURE TO VOTE ON MARCH 5th. WE
NEED YOUR FULL PARTICIPATION IF WE
ARE TO WIN THE CONTRACT GAINS WE
WANT. APATHY COSTS MONEY! ALL BAR-
GAINING UNIT MEMBERS MAY VOTE.
ONLY [UNION] MEMBERS CAN SERVE ON
THE NEGOTIATING COMMITTEE.
This was the only notice distributed by the Union which
detailed the voting procedure to mark ballots by employ-
ees.
Pursuant to the 1979 bargaining agreement, a union
bulletin board was maintained at each facility. On March
4, Gary employee Priscella Wilson, a delegate, posted a
copy of this leaflet on the Gary union bulletin board.
Thereafter, without any instructions from Wilson, the
document was removed. About that same day, Larry
Mangold, who is Respondent's assistant director or ad-
ministrator and is admittedly a supervisor within the
meaning of the Act, telephoned Ross and asked her to
call off the election scheduled for the following day.
Ross replied that she could not, and that the delegates
were running the election. Mangold replied, ". . . that
doesn't matter . . . we took your leaflet down . . . you
are going to call it off, because we could negotiate on
that negotiation time." Ross refused, and said that he
would do what he had to do and she would do what she
had to do.
Also on March 4, Merrillville employee Johnnie An-
drews, a delegate, posted a copy of this leaflet on the
Merrillville union bulletin board. On March 5, a few
minutes before the election was scheduled to begin, a se-
curity guard pulled down the Merrillville leaflet, looked
at it, and threw it in the garbage.
Shortly before the Gary election was scheduled to
begin, employee Mary Wilson, who had been scheduled
to conduct that election with Priscella Wilson and to
bring pens and pencils for the voters to use, advised Pris-
cella that Mary had been "instructed not to perform the
election, because we both would be suspended on the
spot." 6 Nonetheless, a few minutes before the election
was scheduled to begin, Priscella Wilson headed for the
cafeteria, carrying with her a plain brown manila enve-
lope which contained the ballots to be used. At the en-
trance to the cafeteria, she saw three security guards;
their presence there at that time was very unusual. As
Wilson went into the cafeteria, she saw Personnel Direc-
tor Durso sitting at a cafeteria table on which was a di-
etary chart. Chief Security Officer Gore was asking
Durso and security officer McBride whether the chart
s This finding is based on Priscella Wilson's testimony, received with-
out objection on hearsay grounds.
"was it." Wilson approached them, showed them the
manila envelope containing the ballots, and asked wheth-
er that was what they were looking for. Then, she asked
Gore whether he would suspend her now. McBride told
her no, that she could go.
Employee Andrews went into the Merrillville cafeteria
on March 5 to conduct the election. This was the regular
day off for Andrews, who is a darkroom technician, and
she was wearing street clothes with her hospital identifi-
cation badge visible. 7 She was carrying with her a shoe-
box, which was to be used as a ballot box and bore the
Union's name, and the ballots to be used. Andrews was
approached by Joe Szczebra, Respondent's assistant di-
rector of security. Andrews identified herself, and he
asked whether she was there to hold the "elections of
the Union." When she said yes, he told her that she was
"unable" to hold the election in the cafeteria. She
showed him a union leaflet which stated, inter alia, that
employees had the right under the Act to "distribute
Union literature on nonworking time and in all nonwork-
ing areas of the hospital, such as cafeterias . . . even if
patients and visitors have access to these areas."8 He re-
plied that she had the right to distribute leaflets but not
to hold the election in the cafeteria. She said that she
was waiting for another employee, Marion Epps, to
come down and be with her. When Epps arrived, Szcze-
bra told her the same thing, and said that the two
women could use his telephone to call personnel. They
used his telephone to try to call union organizer Ross,
but were unable to reach her. Andrews then left the
premises.
The ballots used by the Union were headed "Ballot for
Election of Negotiating Committee" and were divided
into eight parts, each captioned by the name of a particu-
lar hospital department. Under each such heading were
listed one to four names and a blank space with the entry
"(or write in name)" underneath. A box followed each
name and each blank space. An employee was supposed
to vote only for one candidate (printed or write-in) to
represent the voter's own department. No such written
instructions were issued to the employees Employee del-
egate Priscella Wilson testified that she and Mary Wilson
would have answered questions from any voters about
how to mark the ballots, but Priscella Wilson gave con-
fusing testimony about how ballots were to be marked.9
The election was eventually held on March 17 at the
union hall. The polls were open all day. The union hall
is 15 to 30 minutes away from each of the hospital facili-
ties. Of the approximately 625 eligible voters, 58 voted,
perhaps including "a very small amount" of non-
members. The area within which Respondent's employ-
ees live approximates a quadrilateral with three 15-mile
X The record fails to show whether Respondent permits employees to
come into the hospital on shifts other than their regular shift.
8 The face of this leaflet indicates that it was printed in June 1976. Cf.
N.LR.B. v. Baptist Hospitat Inc., 442 U.S. 773 (decided June 20, 1979,
after the effective date of the parties' 1979-81 agreement). The leaflet fur-
ther states that off-duty employees have the right to organize inside the
hospital in nonworking areas unless the hospital denies entrance to all off-
duty employees for all purposes.
9 For example, her testimony is unclear as to whether write-in candi-
dates had to be from the department they we-e supposed to represent.
413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sides and one 20-mile side. Gary is in about the middle of
the longest (north) side of this area, and Merrillville is
about one-third of the way along a diagonal from the
southwest to the northeast corner.
Thereafter, the Union conducted a strike vote election,
in which only members were eligible to vote. The elec-
tion for Gary members was held in Ross' van, which she
parked on the street in front of the Gary facility. "A lot"
of people voted in this manner. The strike vote election
for Merrillville members was held at the union hall.
The Union conducts at the union hall monthly meet-
ings for the delegates and a meeting every 4 to 6 weeks
for the general membership. Ordinarily, about half the
delegates attend delegates' meetings, and 25 to 30 em-
ployees attend general membership meetings. When the
Union conducted an election in the spring of 1981 to
ratify the collective-bargaining agreement, in which elec-
tion only members were eligible to vote, more than 370
members came to the union hall to vote. Ross testified
that this election, which was held between 11 a.m. and 6
p.m., would have caused disruption if held at the hospi-
tal, "because it was a lot of people there." The 1979 elec-
tion for employee members of the bargaining committee
was not conducted at the hospital, and was likely con-
ducted at the union hall. The record fails to show how
many employees voted in that election.
The 1979-81 agreement provided, inter alia:
Union Activity, Visitation and Bulletin Boards
I.... Union literature shall not be distributed
during working time nor at any time in any patient
care or treatment area nor in any working area.
2. A representative employed by the Union shall
have reasonable access to the Employer for the pur-
pose of conferring with the Employer, delegates of
the Union and/or employees, and for the purpose of
administering this agreement ...
3. The Employer shall provide Bulletin Board(s)
which shall be used for the purpose of posting
proper Union notices. Such Bulletin Board(s) shall
be placed conspicuously and at places readily acces-
sible to workers in the course of employment.
During the negotiations leading up to this contract,
company attorney Bergmann stated that the cafeteria,
the outside entrance of the hospital, and any nonpatient
care area could be used as union distribution areas.
During the negotiations leading to the contract effective
on June 1, 1981, during which negotiations the instant
charge was pending, the Union requested contractual
provisions to prevent a repetition of the incidents where
the Union's notices of the scheduled March 5 election
had been removed from union bulletin boards. Also, the
Union proposed a contract provision permitting the use
of Respondent's cafeterias for union elections, at least for
bargaining committee members; the record fails to show
whether this proposal was directed to the conduct of
such elections by nonemployee union representatives,
employees, or both. The 1981-83 contract contains no
provisions permitting any such use of the cafeterias. The
quoted provisions of the 1979-81 contract were inserted
without change in the 1981-83 contract, except that to
paragraph 3 was added the sentence, "The Employer
does not condone the removal, defacing, or destruction
of proper union notices."
B. Election and Other Activities in Respondent's
Cafeterias
At the time of the August 1981 hearing, Respondent's
total Gary work force consisted of 1,300 persons, of
whom 900 were not in the bargaining unit; and its total
Merrillville work force consisted of 650 persons, of
whom 425 were not in the bargaining unit. As to nonbar-
gaining unit hourly employees, there exists what Re-
spondent describes as a "Grievance Committee" of nine
such employees. All nonbargaining unit hourly employ-
ees are eligible to vote for such committee members in
elections which' are conducted every 2 years. Such an
election was conducted in Respondent's cafeterias on
January 31 and February 1, 1980, from 6:30 to 8:30 a.m.,
9:30 to 10:30 a.m., 11 a.m. to 1:15 p.m., and 4:45 to 6
p.m. A memorandum from Personnel Director Durso in-
structed the employees to present their respective "ID,"
sign the "poll book," accept and mark their ballots, and
put them in the ballot box. Frances Taylor, who is Re-
spondent's vice president of personnel and education, tes-
tified in August 1981 that she did not think the 1982
grievance committee elections could be held in "the cafe-
teria" (I am unclear whether she meant both), but I have
some reservations about the value of her opinion in this
connection. ' o
Respondent also conducts annual credit union registra-
tion and Christmas club membership drives during lunch
periods in its Gary cafeteria. A credit union representa-
tive sits at a table, on which application blanks have been
placed, to answer employee questions and assist employ-
ees in filling out applications. These drives have lasted
from 2 days to a week.
As in prior years, in July 1981 Respondent gave its
Gary employees, with their paychecks, slips for a door
prize drawing at Respondent's annual picnic. Employees
sign the slips and drop them in a box placed on a table
or chair in the cafeteria. The box may remain in the cafe-
teria for a month.
For a number of years before about early August 1981,
volunteer workers and X-ray student technicians each
held annual bake sales in the Gary and Merrillville hospi-
tals. The record fails to show what was done with the
proceeds of these bake sales. The July 1981 Gary volun-
teers' bake sale began at 8 a.m. and extended through the
lunch hours. The Merrillville X-ray student technicians'
1980 bake sale was held between 9:30 and II a.m. The
record otherwise fails to show the precise hours when
the bake sales were conducted. The Gary bake sales
were conducted from one or two card tables put where
Priscella Wilson planned to put up a table from which to
'0 Taylor testified that the Merrillville facility would be adding new
patient care beds, which could require the hiring of 300 new employees,
but that the cafeteria at that facility would not be expanded. However,
the food service director, Marcella Stewart, whom I find to be a wholly
credible witness, testified that she and Hospital Vice President Defko-
minsky were working out a plan to accommodate the anticipated work
force increase by removing a movable wall which separates the Merrill-
ville cafeteria from the doctors' dining room, and adding more tables.
414
METHODIST HOSPITAL OF GARY, INC.
conduct the election, and "sometimes" interfered with
the flow of traffic. The volunteers' July 1981 bake sales
caused congestion in the Merrillville cafeteria. Shortly
thereafter, the X-ray student technicians asked permis-
sion to hold a fall 1981 bake sale. This request was
denied.
Almost every day, salespeople discuss business with
hospital representatives in the Gary cafeteria during
lunch hour. Also, supervisors conduct meetings in the
Gary cafeteria, and Respondent's "work units" have
meetings in that cafeteria. Priscella Wilson credibly testi-
fied that every month the supervisor of her "work unit,"
which consists of 12 people, conducts a meeting in the
Gary cafeteria at which attendance is mandatory. She
further credibly testified that an attempt was made to
have such meetings after the lunch period "Because of
the congestion, and we think about other people eating
lunch. We are not there to eat. We are only there to dis-
cuss, so we try to be out if we can, but if we can't, then
we are there."
C. The Physical Layout of Respondent's Facilities and
the Union's Plans for Conducting an Election in the
Cafeterias
Respondent's hospitals are staffed around the clock, 7
days a week, by three shifts of employees. Respondent's
Gary facility is located in an urban area surrounded by
apartment buildings in the process of renovation, a
family practice medical center also operated by Respond-
ent, homes, and congested streets. The Gary facility con-
sists largely of two separate buildings connected by an
enclosed hallway at the basement and first-floor levels.
The Merrillville hospital is located in a rural area with
an interstate highway passing nearby.
The only persons permitted in the two hospital facili-
ties are patients, employees, physicians, salespeople, and
persons who have come to visit patients. Visitors are
issued passes, are permitted to visit during certain hours
only," and (at least in the Gary facility) are requested to
limit their visits to 20 minutes. All employees are sup-
posed to wear identification badges, and many of them
also wear uniforms. Employees have been requested to
advise the security department if they observe unauthor-
ized personnel in the buildings. Security guards are sta-
tioned at the main entrance to the Gary hospital and at
the emergency room entrances to both hospitals. There
is direct evidence that guards patrol the grounds of both
hospitals and the Merrillville cafeteria. I infer that, at
least on occasion, guards also patrol much or all of the
interior of both hospitals, including the Gary cafeteria. 2
The Gary cafeteria is located in the basement. Near
the cafeteria are the dishwashing rooms, women's and
men's restrooms and locker rooms, a medical records
room, a pharmacy, an IV team area, central services
where sterile supplies are stored, and other nonpatient
care areas. The cafeteria can seat 100 to 200 patrons at a
time. About 125 persons a day eat breakfast there (break-
fast service lasts for a total of 3 hours); about 450 per-
' In the Gary facility, visiting hours are from 2:30 to 8 p.m. The
record fails to show the visiting hours at the Merrillville facility.
" As previously found, guards were in both cafeterias when the union
delegates went there in order to conduct the election.
sons a day eat lunch there during a 2-1/4-hour period,
with the busiest period being noon to 12:30 p.m.;' 3 and
about 150 persons a day eat supper there during a 1-3/4-
hour period. Employees generally receive a half-hour for
lunch and are "docked" if they overstay their lunch
period. There are no restaurants within walking distance
of the Gary hospital. During the lunch period, practical-
ly all the tables are occupied, but there is no evidence
that patrons must ever wait to be seated.
About 80 percent of the people who eat in the Gary
cafeteria are employees. Employees at both hospitals are
required to obtain their supervisors' permission to leave
the hospital building during their lunch break. Employ-
ees at both hospitals are required to eat their meals (in-
cluding brown bag lunches brought from home) in "des-
ignated eating areas," which in the Gary facility consist
only (so far as the record shows) of the cafeteria, a pri-
vately managed coffeeshop where the prices are signifi-
cantly higher than in the cafeteria and which (inferential-
ly) does not permit persons to eat brown bag lunches
there, and kitchens in buildings apart from the main hos-
pital (administration center, media center, and personnel).
Gary employees prefer the cafeteria to the coffeeshop
because the cafeteria gives them a discount on meal
prices. Patients are required to obtain a written physi-
cian's order before they are permitted to eat in the Gary
cafeteria. Patients who eat in the Gary cafeteria tend to
sit together, but might sit with employees and visitors.
An average of 10 patients eat in the cafeteria at any one
time. The patients who use the Gary cafeteria are ambu-
latory care clinic patients, some of whom are pregnant,
patients from the children's clinic, rehabilitation patients,
and psychiatric patients. The psychiatric patients who
eat in the Gary cafeteria do so because their doctors
think that exposure to such a situation will help them to
return to the mainstream of community life. The maxi-
mum number of psychiatric patients at the Gary hospital
is about 28, and the hospital is not a long-term psychiat-
ric care facility.
Except for the food line area, the Gary cafeteria con-
sists of a rectangular room 32.5 by 24.5 feet. Part of this
room consists of a walled-off doctors' dining area, about
7 by 10 feet, in one corner of the room, and an adjacent
vestibule area about 7 by 6 feet. At the other end of the
room, and abutting the food-line area, is an area (herein
called the service area) which extends the complete
breadth of the room and, for the most part, is 7 or 8 feet
wide. The northern portion of the service area contains a
salad bar. The southern portion of the service area is de-
scribed below. The rest of the room is an open dining
area. 4
Patrons enter the Gary cafeteria, move through a food
line, and pay for their purchases at one of two cash reg-
isters, one of which is located in the south service
's My finding as to the busiest period is based on the testimony of
Food Service Director Hunt, whom I regard as more knowledgeable in
this connection than Gary pharmacy technician Wilson
14 A plan received into evidence suggests that the dining area is divid-
ed into two separate parts by a partitioned-off aisle However. no such
partitions in fact exist.
41j
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area. 5 After paying for their purchases, patrons proceed
to the dining area, containing tables of varying sizes
which can accommodate 6 to 12 persons, to eat their
meals. The tables are 3 to 4 feet apart. After a patron has
finished eating, he is expected to proceed to the south
service area and return his tray to a tray conveyor belt
on the south wall and/or deposit his trash in one of two
receptacles in front of the west end of the tray belt. In
addition to the tray belt, trash containers, and cash regis-
ter, this area contains to the west of the register a pop
and a snack vending machine on the west wall and near
the food line, and to the east of the cash register, an ice
cream machine and ice station. The south service area is
about 10 feet long and extends about 8 feet east into
what is otherwise the dining area, except that the ice
cream machine and ice station extend about 12 feet into
the dining area. The south service area can be reached
from the dining area either by walking toward the cash
registers and then making a left turn just before or just
after the left-hand cash register, or (inferentially, a more
likely route) by walking through the dining area and
then to the left of the ice cream machine, which is about
8 feet from the tray belt. Patrons may exit where they
entered or by means of a door which can be reached by
walking the length of the dining area. In conducting the
election, the Union intended to set up a card table in the
south service area near a blank 7-foot wall which is at
right angles to the tray belt and extends to the vending
machines placed against that wall. After employees
placed their trays on the tray belt and/or discharged
their trash, they could approach the delegates seated at
the card table and obtain a ballot which they would
mark next to the printed or written-in name of one can-
didate and deposit in a box. On various occasions be-
tween May 1979 and the day before the hearing on
August 21, 1981, union organizer Ross and/or union del-
egates have distributed union literature in the Gary cafe-
teria with management's knowledge. Ordinarily, such lit-
erature is distributed from a table which the Union
places at the same location where it planned to put up a
card table for conducting the election.
The only area in the Merrillville hospital where em-
ployees are permitted to eat lunch is the cafeteria, which
is on the ground floor in the older of the two wings.'5
Ninety-five percent of the employees and volunteers eat
in the cafeteria, and they comprise 95 percent of the
cafeteria patrons. Patients do not eat in the Merrillville
cafeteria. Inferentially, the nonemployee/volunteer pa-
trons are physicians, sales people, and people who have
come to visit patients.
Merrillville cafeteria patrons enter the cafeteria by
means of one of three doors which can also be used as
exits, move along a line where they pick up their food,
pay for it at a cash register at the end of the line, and
then make a right turn into the dining room. This room
"I The second cash register was installed at the Union's instance,
shortly after the first collective-bargaining agreement between the parties
was negotiated in 1979, because members of Respondent's safety review
committee, comprised of individuals from both hospital facilities, were
delaying employees moving through the cafeteria line on Tuesdays, when
the committee met.
"s Some employees eat in the courtyard. However, I infer that they
would likely not choose to do so in northern Indiana in early March.
is 61 feet by 58 feet, but at the time of the hearing an
area about 12 feet wide was separated from the rest of
the dining room by means of a movable partition extend-
ing almost the full width of the room, and was being
used as a doctors' dining room. This partitioned-off area
aside, at the time of the hearing the dining room con-
tained about 35 tables, which accommodated from 2 to 6
patrons each, and had a total capacity of about 130 pa-
trons. The aisles between the tables are 3 to 4 feet wide.
About 100 persons a day eat breakfast there, about 300
persons a day eat lunch there, and about 130 persons a
day eat supper there. ? The cafeteria's busiest period is
noon to 12:30 or 1 p.m. Even during such periods, seats
and some tables are always vacant.
Andrews planned to conduct the election from a four-
person table on the far side of the room from the aisle
which leads from the cash register, and about four-fifths
of the distance between the tray line and the partition
which separates the doctors' dining room from the main
dining room. Both Andrews and union organizer Ross
have distributed union literature in the Merrillville cafe-
teria; in at least Ross' case, in the presence of and with
the knowledge of supervisors and Director of Personnel
Durso. Andrews, whose normal lunch period is 12:30 to
I p.m., distributed such literature from the table where
she was eating.
The Merrillville cafeteria is surrounded by a separate
vending machine room, the women's lounge, the pur-
chasing department, the central services department,
men's and women's locker rooms, and other nonpatient
care areas.
The cafeteria rooms aside, there is no evidence that
there are any rooms in either hospital where the union
elections here at issue could have been conducted. The
locker rooms are too small and congested for such pur-
poses, and are separated by sex. Respondent asserts in its
brief (p. 43) that as to the activities (other than the credit
union and Christmas club drives) which Respondent has
permitted in its hospitals, "there was no other available
facility for the other activities to be conducted."
D. Analysis and Conclusions
Whether employees may use their employer's premises
to conduct intraunion elections is not a matter wholly
within the employer's discretion. Rather, an employer
violates the Act if he is improperly motivated in denying
permission for such use. Vulcan-Hart Corporation (St.
Louis Division), 248 NLRB 1197 (1980), remanded 642
F.2d 255 (8th Cir. 1981), on remand 257 NLRB 979
(1981). I conclude that Respondent's refusal to permit
the Union to use Respondent's cafeterias to conduct an
election for bargaining committee members was rendered
unlawful by Respondent's motives therefor. The only
reason Respondent ever gave the Union or the employ-
ees for such a refusal was Personnel Director Durso's
statement to Union Representatives Ross and DiNicola
that the Union could conduct an election at the union
hall, permitting such an election in the cafeteria was
"Contrary to hospital policy," and "because we do not
17 As to the hours of service, see supra at fn. 2.
416
METHODIST HOSPITAL OF GARY, INC.
want the employees to favor, to think we favor the
Union." Moreover, about a month before the date on
which the Union wanted to hold bargaining committee
elections in Respondent's cafeterias, Respondent not only
permitted the meal-hour conduct in its cafeterias of an
employee election for members of the grievance commit-
tee, but also affirmatively urged employees to vote in
that election. Like the Union, the grievance committee
was a labor organization within the meaning of Section
2(5) of the Act:' 8 and, moreover, the grievance commit-
tee was the organization to which the employees in the
certified unit would look for grievance representation if
and when they were no longer union represented. I note,
moreover, that Respondent has also permitted drawings,
bake sales, credit union drives, and sales conferences in
its cafeterias during mealtimes, and has conducted
"work-unit" conferences there during such periods. I
conclude that by permitting (and, indeed, encouraging)
the conduct in the cafeterias during meal hours of griev-
ance committee elections (as well as permitting other ac-
tivities unrelated to meals), while denying union-repre-
sented employees permission to conduct an election for
bargaining committee representatives, Respondent acted
out of improper motives and, therefore, violated Section
8(a)(1) of the Act. See N.L.R.B. v. The Babcock &
Wilcox Company, 351 U.S. 105, 112 (1956); N.LR.B. v.
Stowe Spinning Company, 336 U.S. 226, 227-232 (1949);
Citizen-News Company, Inc., 88 NLRB 1413 (1950);
Vulcan-Hart, supra, 248 NLRB 1197; Challenge Cook
Brothers of Ohio, Inc., 153 NLRB 92, 99 (1965), enfd. in
material part 374 F.2d 147, 152-153 (6th Cir. 1967).
Respondent's brief contends that a meal-hour election
in the cafeterias for bargaining-committee representatives
would have disrupted the cafeterias' operations; could
have adversely affected the patients,' 9 visitors, and busi-
nessmen who eat in the cafeterias; and could have caused
Respondent to violate the collective-bargaining agree-
ment, which requires Respondent "to take measures
where necessary to assure that Employees can move
through the cafeteria line and eat" within their half-hour
meal period. The difficulty with this contention is that
Respondent never advanced such explanations to the
Union or to the employee delegates as reasons for deny-
ing the employees permission to conduct the election.
Moreover, if Respondent's management had expressed
such reservations when the Union requested such permis-
sion several days before the proposed elections but had
evinced willingness to consider granting permission if
1' I so find because employees participated therein by acting as and
voting for committee members, and because the grievance committee
exists at least partly for the purpose of dealing with Respondent concern-
ing grievances. N.LR.B. v. Cabot Carbon Company, 360 U.S. 203 (1959);
Thompson Ramo Wooldridge, Inc., 132 NLRB 993, 994-995 (1961). modi-
fied 305 F.2d 807 (7th Cir. 1962). My finding as to the committee's pur-
pose is based on the following circumstances and inferences therefrom:
Respondent describes the committee as a "grievance committee," cau-
tions prospective candidates (all of whom must be nonmanagement per-
sonnel) that the responsibilities of committee members require them "to
review and be very familiar with policies of the hospital so they will be
able to wisely counsel employees in grievance matters," and urges em-
ployees to vote for "your committee." Also, a particular number of com-
mittee members are to be elected from each department in each hospital.
"I As previously noted, it is undisputed that patients do not eat in the
Merrillville cafeteria.
these difficulties had been obviated, the union delegates
might well have worked out election procedures which
would not have presented the risks which counsel now
alleges. So far as the record shows, the grievance-com-
mittee election, with an eligibility list more than double
the number eligible to vote for bargaining committee
members, had proceeded smoothly. 20 The delegates
might (for example) have given more informative and
more timely written notices about election procedures if
Respondent had expressed to the Union at the time the
opinion advanced 6 months later in its brief to me-
namely, that the grievance committee election had been
better planned than the proposed bargaining committee
election because the grievance committee election had
been preceded by "written notices explaining who would
vote, how to vote, where and when to vote and who
could be voted for" (br., p. 35). Instead, the notices
which the Union drew up, and which Respondent (so far
as the record shows) never criticized to the Union on the
ground that they were belated or vague, were removed
from the union bulletin board, at least in one instance by
a hospital guard, and Supervisor Mangold told Union
Representative Ross that "we took your leaflet down."
Finally, Respondent contends that granting permission
for such an election might have exposed it to an unfair
labor practice complaint. This consideration did not
deter Respondent from giving permission for the conduct
of the grievance committee election. Moreover, the
Union, unlike the grievance committee, is a Board-certi-
fied representative, and Respondent admittedly does not
want to appear to favor it. Under these circumstances,
Respondent was free to permit the intraunion election if
Respondent so chose. Sunnen Products, Inc., 189 NLRB
826 (1971); Hesston Corporation, 175 NLRB 96 (1969);
Coamo Knitting Mills Inc., 150 NLRB 579, 582 (1964).
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union and the grievance committee are each
labor organizations within the meaning of Section 2(5) of
the Act.
3. Respondent has violated Section 8(aXl) of the Act,
thereby engaging in unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7), by re-
fusing to permit employees to conduct in its cafeterias,
during mealtimes, an election for bargaining committee
representatives in which all bargaining unit employees
were eligible to vote.
THE REMEDY
Respondent contends that no remedial order should be
issued in the instant case even if I find (as I have) that
Respondent violated the Act by its March 1981 refusal
to permit employees to use Respondent's cafeterias
'0 The grievance committee election took 2 days. The bargaining com-
mittee election was supposed to take only I day, but employees could
also have voted at the union hall. Moreover, Respondent never suggested
that the bargaining committee election be held on 2 days instead of only
I. Employee/delegate Priscella Wilson indicated that she would have
been agreeable to a 2-day election.
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during mealtimes to conduct an election for employees
to serve on the bargaining committee. Respondent con-
tends that the June 1, 1981 through May 31, 1983, bar-
gaining agreement effectively waived any right the em-
ployees may have had to use the cafeterias for this pur-
pose. I agree with Respondent that such a right is so
waivable. See Magnavox Company of Tennessee, 195
NLRB 265, 266, fn. 9 (1972), enforcement denied 474
F.2d 1269 (6th Cir. 1973), court of appeals reversed 416
U.S. 322 (1974); Vulcan-Hart, supra, 642 F.2d at 257,
enfg. 257 NLRB 979. However, such a waiver could not
limit the employees' rights before the effective period of
the contract, nor could it indefinitely limit their rights
after the contract has expired. Moreover, such an effec-
tive waiver can be found only on a clear and unmistak-
able showing that the waiver occurred. Gary-Hobart
Water Corporation, 210 NLRB 742, 744 (1974), enfd. 511
F.2d 284 (7th Cir. 1975), cert. denied 423 U.S. 925;
Texaco, Inc., 259 NLRB 1217 (1982). Respondent's
waiver claim is based only on the failure of the 1981-83
contract to include a provision affording use of company
property for union election purposes, although the Union
had requested such a provision. However, it is unclear
from the record whether the Union proposed that the
employees be afforded such use, or whether the Union's
proposal requested that such use be permitted to outside
union representatives. In any event, a union does not ef-
fectively waive a statutory right merely by presenting a
proposal for its contractual guarantee and thereafter sign-
ing a contract which fails to include such a guarantee.
See Texaco, Inc., supra. Accordingly, a cease-and-desist
and notice posting order will issue. In framing the order
and notice, I have followed the guidance of Vulcan-Hart,
supra, 257 NLRB 979. 2 1
Upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 2
The Respondent, Methodist Hospital of Gary, Inc.,
Gary and Merrillville, Indiana, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to give its employees permission to use its
cafeterias during mealtimes to conduct an election for
employee members of the bargaining committee which is
to represent 1199 Indiana, a Division of National Union
of Hospital and Health Care Employees, RWDSU,
AFL-CIO, in negotiations with Respondent, where such
permission to conduct elections is granted to nonbargain-
ing unit employees in connection with grievance commit-
tee elections or intraunion elections for any other labor
21 Respondent's answer, filed in April 1981, requests attorncy's fees
under the Equal Access to Justice Act (P.L. 96-481, 94 Stat. 2325).
Under Sec. 102.148 of the Board's Rules and Regulations, effective Octo-
ber 1, 1981, such a request is to be filed with the Board and not with me,
and is not to be filed until after entry of "the final order." Accordingly,
at this point in the proceeding I shall not entertain Respondent's request.
2a 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.
organization, or where refusal of such permission to 1199
Indiana is motivated by any element of union animus; but
nothing in this order shall require Respondent to give
such permission to 1199 Indiana if and when (1) 1199 In-
diana is no longer the bargaining representative for the
employees; (2) the right to use the cafeterias is modified
by the parties as a result of collective bargaining be-
tween 1199 Indiana and Respondent; or (3) such use is
denied by Respondent for any legitimate nonpretextual
reason which does not involve any element of union
animus or discrimination between labor organizations.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Gary, Indiana, and Merrillville, Indiana,
facilities copies of the attached notice marked "Appen-
dix."2 3 Copies of said notice, on forms provided by the
Regional Director for Region 13, after being duly signed
by Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
za In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the 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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to give employees permis-
sion to use our cafeterias during mealtimes to con-
duct an election for employee members of the bar-
gaining committee which is to represent 1199 Indi-
ana, a Division of National Union of Hospital and
Health Care Employees RWDSU, AFL-CIO, in
negotiations with us, where such permission to con-
duct elections is granted to nonbargaining unit em-
ployees in connection with grievance committee
elections or intraunion elections conducted by any
other labor organization, or where refusal of such
permission to 1199 Indiana is motivated by any ele-
ment of union animus. However, we need not
afford such permission to 1199 Indiana if and when:
(1) 1199 Indiana is no longer your duly recog-
nized bargaining representative.
418
METHODIST HOSPITAL OF GARY, INC.
(2) The right to use the cafeteria is modified
by the parties as a result of collective bargaining
between us and 1199 Indiana.
(3) The use of the cafeterias is denied by us for
any legitimate, nonpretextual reason which does
not involve any element of union animus or dis-
crimination between labor organizations.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce you in the exercise
of your rights under the National Labor Relations
Act.
METHODIST HOSPITAL OF GARY, INC.
419