Eastern Maine Medical Ceneter

National Labor Relations Board - Board Decisions

Nov 10, 1980

253 N.L.R.B. 224 (N.L.R.B. 1980)

DI)CISIONS ()F NATIONAI. IA()BOR RELATIONS BO()AR)
Eastern Maine Medical Center and Maine State
Nurses Association
Eastern Maine Medical Center and Catherine M.
Leavitt, Petitioner, and Maine State Nurses As-
sociation. Cases -CA- 13570 and I-RI)-888
November 10, 1980
DECISION AND ORDER
I3 CIAIRMNAN I \NNIN(; ANI) MIMn113IRS
Jl NKINS ANI) PINI 0()
On October 26, 1978, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The Charging
Party, herein called MSNA or the Union, filed an
answer to Respondent's exceptions, along with a
supporting brief, and Respondent filed a response
to the Charging arty's answering brief.'
Subsequently, on June 21, 1979, the 3Board issued
an "Order Remanding Proceeding for Further
Hearing" for the purpose of adducing evidence as
to whether or not the Maine State Nurses Associ-
ation is disqualified by virtue of a conflict of inter-
est from representing Respondent's employees. The
Board deferred decision on all other issues pending
resolution of that matter. The General Counsel
then filed a motion for reconsideration with the
Board, contending that the Order Remanding Pro-
ceeding for Further Hearing was unnecessary be-
cause all the material evidence regarding the dis-
qualification issue was contained in the record as
made. On August 20, 1979, the Board issued an
order denying the General Counsel's motion, and
further hearings were thereafter held before the
Administrative Law Judge. On February 25, 1980,
Administrative Law Judge Giannasi issued the at-
tached Supplemental Decision in which he found,
inter alia, that MSNA is not disqualified from serv-
ing as bargaining representative of Respondent's
Rexpolndelt filed a motion to trike the Charging ;larty's ansller to
its exceptions. contending that the aller raised issues il o dealt itih i
Respondent's exceptions and I tact contituted iiew exceplions which
were nioi tiimely filed under Sec 102 46 of the Bloard', Rules and Regula-
lions Series , i.s amerncded ()tl Janluary 22, 1979, lie oard advised Re-
spondenl that it would not rule oll its moliltiol to strike at thait tile, but
set a due ate filr rreceipl of Responldent' respolse to the Charging
Parly's answer. Respiondent oil Janllary 29, 1q979 filed a; documenl t stlcd
as "Answering Brief to l- xceptiols oif Maine Stall Nilse Asocilionl
We have revicwed thie Charging Party's alrlwecr I1l light ol' Respondent's
exceptton aid ote that the asvcr deals exclusivtly with rltedial as
pects of the Adrillistralive I ;l.a Judge's reconnl ieded ()rder to all i
which Respondent has excepted While it is true that the ( h;largig ';lart
urges that additionllal remedies not rcelrrlncldd tile Adlllitrlttratic
I.aw Judge are alo arratited, we doi not finld Its ulggestiiln of' urthcr
remedial rmeasures in resplonse toi Reptnlldetlt's exceptions regarding
those proisions recommended hby tlile Admniristratix I lxI Judge jlustif,
sIriking he eire answer, partlcularly inl iew oIf Ihe flct that Rcpotnlld
clt was afforded an lopportluity io a did lile a rexplose ith respecl to
those iues Accordingly, Respoindent's motionl to strike is dctiecd
253 NLRB No. 24
employees. Respondent filed timely exceptions to
the Supplemental Decision, along with a support-
ing brief, and the General Counsel filed a brief in
support of the Administrative Law Judge's Supple-
mental Decision. The Charging Party filed a brief
in answer to the Respondent's exceptions.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and briefs and has decided to affirm the
rulings, 2 findings, and conclusions of the Adminis-
trative Law Judge in his Supplemental Decision.
The 13oard has also considered the record and the
attached Decision issued by the Administrative
I aw Judge on October 26, 1978, in light of the ex-
ceptions and briefst and has decided to affirm the
rulings, findings,4 and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order, as modified herein.
1. The Administrative Law Judge found that Re-
spondent's no-solicitation rule is overly broad, and
thus violated Section 8(a)(l) of the Act. That rule,
as revised and distributed on October 1, 1975, after
MSNA's organizing campaign began,5 is extant in
two versions. In a memorandum from Respondent's
executive director addressed to all EMMC (East-
2 ReKpiIlttic rqj11les ill t cxceptlTIx to tle Sitpjiluppleriill I)ecisiiotl
thal thie hiarrd r le IIt llmotiln t correct traiscript rrors That
otit It[i altS1 filed wilh lti Adiiiitrall c I ax Judge, but ot ruled upilt
lin t'i ihxt .iu ' lf iiectill h> tie (icnral Cutinel ior the ('harging
l'rtl . c litebhk gialllt RiisptlrLIet'x tilll t correct transcript errrs
lit s ding. xx lJL' ta t i le l ' thex , laige, iff'ects tie rexslt ItI lil
cecllt
' () )C cetili I II. 11 7, Rpilldentt iled a illlil ior special Lalci
tI file ;a u pll l'trtitll bl hlet . tiCrIllrng tilt' "n'-sollitation rule" isue
raise h Iit xceptiolls i Ihe Atidnlitislritic I ;iw Judge's I)ecisioln/ ill
lightl il recent dcisiions ti tile Supremire 'lourt i' the Uniltcd States I he
(itteral ('lounstel f ied a llotilOl Ilpl poiti li t i Rcporlldlclt's nilotiol
'Ihe Board o1 Ju;lr 2 ltlS(,. ISsued lanl rder gratinlg Responldent's
itiltlio Respondent thereafter iled .a supplemtniltal brief on the rno-sollici-
taltoi rule isue, rltd the General ounsel filed a brief' il oppositio to
Respolndeils supplemenital brief I its supplemential brief. Respondent
requested that tle ard rentand the prolceeding fir urther hcarrig rela-
ti've I it, Irt o xolcitatiotl rule Ihat rcquest is hercby deied, iannuch as
the present record co italis suffictent ex idence for resolutioni of that ssue
I hre Administrative I.aw Juldge fud i his Ilriginal Decisionl that
Resporldtlt, h virIuc of its long period ft' actual hargainring with MSNA
during wric i raiscd no questill regarding MSNA's cmpelcnc Io
represent its employes, 'aixed r s cstopped frorllr asserting in the
unrfair labor practice tage of this priceeding anrl right it r haiy t had
tio objclt to tIhc corrpctcrlce of MSNA a hargaining agell Suhbsequent to
the issuance of the Admirnitrati e aw Judg e' I)cision, the Board
issued its decition il S.'err Ii'ita lospilita. In-., 241 NIRH 63tl i I97).
arnd remanded thc I nstant proceedirig fir further hearing i light o thce
IBoard's I)ecisionr ili that case Irl iew of the Administrative I.av JudgeX
coinclusoI i his Spplemenial Decision. hich we adopt, that MSNA is
not dlsqulilfd frotli representing Respolldent's enlploec.% we d riot
fild it 11ccesitr I,) pass oit his iriginal waiecr flildlig
Ar ealrher rle. xwhicch the 1975 rI-eiihll replaced. ltated
( fanlu i iiSr,
Callvasing or solicillng of any kind i prohibhited ithil the cldical
('rlter aliig crrIpllyecs alnd patients withotul advallce aulhorization
fruirt the ectcutive director Irtarics of this naturc should he re-
ferred to the tx'cutixe dirictiir
224
EASTERN MAINE MEDICAL CENTI R
ern Maine Medical Center) employees, dated Octo-
ber 1, 1975, the revised rule is stated as follows:
No employee shall solicit for any purpose on
property of the Eastern Maine Medical Center
during working time, exclusive of break time
in non-work areas. The distribution of materi-
als for any purpose is prohibited in working
areas, even during nonworking hours. Any
person not an employee of the Eastern Maine
Medical Center is prohibited from entering the
premises to solicit or distribute at any time
unless with permission. Instances of this nature
shall be referred to the office of the Executive
Director.
An EMMC interdepartmental directive also dated
October 1, 1975, and addressed to all medical
center personnel from Respondent's director of
personnel services, restates the rule, but substitutes
the term "break areas" for "non-work areas" in the
first sentence of the rule. Further, in Respondent's
"Weekly Bulletin" of October 1, 1975, hospital em-
ployees were advised by Respondent as follows:
Solicitation rules are now clarified for employ-
ees. (There is a flat prohibition for non-em-
ployees.) Employees may not solicit for any
purpose during working time nor distribute
materials in working areas even during non-
working time. Employee solicitation during
break time, in break areas, is permissible. The
rule is being posted on the bulletin boards and
will be included in the regular updating of the
personnel handbook. What about the United
Fund?-it's the traditional exception.
Because the rule (1) prohibits lawful nonwork-
time solicitation in work areas which are not imme-
diate patient care areas, and (2) prohibits solicita-
tion at times other than breaktime, such as lunch or
reasonable periods before and after work in permis-
sible areas, the Administrative Law Judge conclud-
ed that it is broader than permissible under Board
law and, at the very least, is ambiguous. Relying
on the general principle that any ambiguity in a
statement is construed against the party promulgat-
ing it, he found the rule overly broad in that it may
be construed to limit impermissibly union solicita-
tion both in terms of locations within the hospital
where solicitation would be permitted and of times
during which employees might properly solicit
their coworkers.
The Administrative Law Judge found a further
violation of Section 8(a)(l) of the Act through Re-
spondent's application of its no-solicitation rule to
prohibit solicitation in a second-floor hospital lobby
from which it expelled two off-duty nurses who
were soliciting employees to sign union member-
ship cards and dues withholding forms on March
10, 1977. Nurses Mclnnis and Rose had, earlier in
the day, been soliciting in the hospital's public cafe-
teria, and had returned in midafternoon to solicit
nurses coming on and going off duty when they
were requested by Respondent's director of person-
nel to leave the premises.
In concluding that Respondent's no-solicitation
rule was unlawful, the Administrative Law Judge
relied upon the Board's Decision in St. John's Io.s-
pital and School of Nursing. Inc., 222 NLRB 1150
(1976), as providing the applicable standard for
lawful limitation of union solicitation in hospitals.
The Administrative Law Judge stated the control-
ling principles as follows:
With respect to hospitals, the Board rule is
that, while a hospital may lawfully ban em-
ployee solicitation and distribution, even
during nonworking time in immediate patient
care areas-such as the patients' rooms, oper-
ating rooms, and places where patients receive
treatment-a ban on that activity in other
areas to which patients and visitors have
access is invalid absent a showing by the hos-
pital that such a ban is necessary to avoid a
disruption of patient care.
The Administrative Law Judge also noted the
opinion of the Supreme Court in Beth Israel Hospi-
tal v. .L.R.B., 437 U.S. 483 (1978), wherein the
Court affirmed the Board's holding that Beth Israel
Hospital interfered with employee rights protected
by Section 7 of the Act by enforcing a rule that
prohibited soliciting union support and distributing
union literature during nonworking time in the hos-
pital's cafeteria and coffee shop. The Court stated
in that case:7
We therefore hold that the Board's general ap-
proach of requiring health-care facilities to
permit employee solicitation and distribution
during nonworking time in nonworking areas,
where the facility has not justified the prohibi-
tions as necessary to avoid disruption of
health-care operations or disturbance of pa-
tients, is consistent with the Act.
Thus, the Supreme Court in Beth Israel approved
the Board's fashioning and application of a pre-
sumption that employer rules which prohibit em-
ployee solicitation in health care facilities in areas
t" Che calfclcria i, also located on the ccornld flor of the hospital, and
s usled h emplo>ees and members of the puhlic. a, v cll as b amhul;l-
Ior patirnts he h ilurSC. , who were off dut at that time also. soliciled
emploees li the caetlcria fi r approximatelk I hour on the nmorning of
M1.arch 10, 1'77. ilhoul interfrlnc h5 Respondcnt
vd Iat 07
I)2FCISIONS OF NA IONAL LABOR RELATIONS BOARD
other than immediate patient care areas are invalid,
rejecting Beth Israel's argument that the Board's
use of such a presumption was inconsistent with
the legislative intent underlying extension of the
Act to nonprofit health care institutions.
Subsequent to issuance of the Administrative
Law Judge's Decision, the Supreme Court handed
down its opinion in NV.L.R.B. v. Baptist Hospital,
Inc., 442 U.S. 773 (1979), in which it further dis-
cussed union solicitation in health care institu-
tions.8 In Baptist, the Court cautioned the Board to
take into account the medical practices and meth-
ods of treatment incident to the delivery of patient
care services in a modern hospital in presuming
that employee solicitation on nonworktime and
outside of immediate patient care areas does not
disrupt patient care or disturb patients and may
therefore not lawfully be forbidden.9 The Court
also suggested that, in reviewing the scope and ap-
plication of its presumption, the Board bear in
mind that patient care areas may vary depending
upon the circumstances of the particular institution
involved."' The Supreme Court held in Baptist that
the Board lacked substantial evidence in the record
to support its order forbidding any prohibition on
solicitation in the corridors and sitting rooms on
floors of the hospital housing either patients' rooms
or operating and therapy rooms, but that the evi-
dence supplied by the hospital with regard to the
application of its ban on solicitation in the cafete-
ria, gift shop, and lobbies on the first floor of the
hospital was insufficient to rebut the Board's pre-
sumption of the ban's invalidity in those areas. The
Court observed that Baptist's vice president for
personnel services and its chief of medical staff had
testified that at least some kinds of solicitation in
public areas such as the cafeteria would be unlikely
I On October 3). 1978. the Supreme Court also issued a decision in
Balor U(niverty Medicui Center N .L R.B., 439 U.S 9 in which it
denied the Board's ptition foir certiorari as to a portion of a decision of
the United States Court of Appeals for the District of Columbia Circu!,
578 F 2d 351 (1978) denying enforcement of a Board order forhidding
apphcation of a no-solicitatiot rule to that hospital's corridors, but grant-
ed the petitl(ln fior certiorari and acated the judgnllt of the court of
appeals insofar as it denied enforcement cof the Board's order requiring
the hospital ntot to apply its no-solicitation rule to its cafeteria Finding its
owin decision in Bilh Isruel luospill. supra, relevant to tIhe cafeteria issue,
the Supreme Court remanded the case to the court if appeals for recoln-
sideration in light f that case. The Court of Appeals for the District if
Columbia Circuit thereafter remanded the case to the Board for consider-
ation in light of the Supreme Court's Beth Israel decision and the court of
appeals' decision on remand (593 Fd 1290 (1979)). The Board on Fichru-
ary 22, 1980, issued a Supplemental )cecision and Order, 247 NLRB No
178, reaffirming its previous finding that the respondent violated Sec.
8(a)(1) f the Act hb maintaining an ot erl broad no-solicitation, n-dis
Iributioin rule il the cafeteria and ending areas at thlie ay or Univers is
Medical Center
The Ciourt noted that the Board's presunmptionl does no more than
place on the hospital the burden of proving, with respect to areas to
swhich it applies, that union solicitation may adversely affect paltieits Id
at 781
"' Id. at fn Ih
to have a significant adverse impact on patients or
patient care.
After reviewing the facts of the instant case in
light of the cases discussed above, we conclude, in
agreement with the Administrative Law Judge,
that Respondent's no-solicitation rule is overly
broad both on its face and as applied to prohibit so-
licitation in the lobby at issue in this case. With re-
spect to the rule's being overly broad as promul-
gated we, like the Administrative Law Judge, find
that the rule does not conform to our requirement
that Respondent's ban on employee solicitation on
nonworktime be limited to immediate patient care
areas. It is, therefore, presumptively invalid. Nor
has Respondent established that union solicitation
in working areas of the hospital which are not im-
mediate patient care areas would either disrupt pa-
tient care or disturb patients. Accordingly, we
affirm the Administrative Law Judge's finding that
Respondent's no-solicitation rule is overly broad
and thus violates Section 8(a)(1) of the Act.'2
With respect to Respondent's application of its
no-solicitation rule to its second-floor waiting
lobby, from which it expelled two employees who
were soliciting other employees to sign union mem-
bership cards and dues withholding forms, we find,
also in agreement with the Administrative Law
Judge, that Respondent's prohibition of solicitation
in the lobby in question unlawfully interfered with
the employees' exercise of their Section 7 rights.
The facts, as fully set forth in the Administrative
Law Judge's Decision, indicate that off-duty nurses
McInnis and Rose were situated in a large waiting
area or lobby on the second floor of the hospital
when prevented from engaging in solicitation by
Respondent. The lobby is open to the general
public, and is adjacent to hospital conference
rooms, the medical library, the cafeteria, and the
surgery waiting room. The hospital public cafeteria
opens directly into the lobby. The lobby is used by
people on breaks from the conference rooms, by
nurses who congregate in this area prior to the be-
ginning of their shifts while waiting to punch the
timeclock located off the lobby, and by persons
awaiting news about patients undergoing surgery
when there is an overflow from the adjacent sur-
gery waiting room, as well as by persons waiting
for out-patients or people that have transported pa-
tients to the hospital.
Elaine Thompson, an employee of Respondent
who is secretary to the hospital chaplain, testified
Id. at 786.
( Because the Administrative L.as Judge's recommended Order affir-
mativcly requiring the rescission of the unlawful rule contains an inadver-
tent or typographical error. we shall modify that portiun of his recom-
mended Order.
226h
EASTERN MAINE MEDICAL CENTER
extensively regarding the daily use of the lobby.
Thompson has a desk at one end of the lobby and,
during her 8 a.m. to 4:30 p.m. shift, Monday
through Friday, acts as liaison between friends and
relatives of patients undergoing surgery and per-
sonnel in the hospital operating rooms. Thompson
is in contact with the operating room secretary,
who lets her know when a patient is out of sur-
gery, and she passes this information along to indi-
viduals awaiting news of that patient. The surgery
waiting room is alw used by physicians to confer
with those awaiting news of the results of surgery.
However, even if the lobby is being used as an
overflow area, the physician takes those with
whom he is conferring about a serious problem as a
result of surgery into the surgery waiting room to
speak with them, rather than discussing the matter
in the lobby area. Thompson's testimony indicates
that persons using the lobby sit, talk, smoke, even
eat.
A patient care area is located approximately 200
feet from the lobby, separated by a corridor.
Thompson, who testified regarding her daily obser-
vation of the lobby's uses, mentioned patient use of
the lobby at only one point. Specifically, as Re-
spondent's witness on direct examination, she testi-
fied in relevant part:
Q. What is it [the lobby area] used for?
A. A lobby, it is a place for people to wait.
Q. What are they waiting for?
A. Sometimes to get into the conference
rooms. Some people are waiting for patients or
out-patient service, rather than wait down-
stairs. That is about it. Sometimes we have an
overflow from the surgery waiting room.
Other than the above-quoted reference, the record
is devoid of any indication that patients use the
lobby for any reason. It would thus appear that Re-
spondent is not justified in prohibiting solicitation
in this lobby as "necessary to avoid disruption of
health-care operations or disturbance of pa-
tients."' 14
Respondent asserts in its supplemental brief on
the no-solicitation rule issue that its ban on solicita-
tion in the lobby is valid because members of a pa-
tient's family who are in an anxious state awaiting
surgery results are deserving of greater protection
than the general public. Respondent urges that
views expressed by the Supreme Court in .:L.R.B.
I:' Subsequent to the incident at issue herein, Respondent has prohihl-
ed eating ill the lohhb coatrootm area Wshich as, prior to that prhhihl-
lion, commonly used hy some hospital staff employees to use the ele-
phone and eat snacks he coalroonm has since een c,nserted into all
office
4 . . R B s Ba liw Iloprut/ l. r. ru al 77': Beth EIracl lsirual
sv' I. R . upr a )
v. Baptist Hospital, Inc., supra, lend support to its
position, and suggests that the Supreme Court in
Baptist even equates the need for protection of the
patient's family from union solicitation with the
need for protection of the patient himself. 15
The General Counsel, however, argues that Re-
spondent is attempting to extend the protection af-
forded by the Board and courts to patients to the
families of patients, but at the expense of the em-
ployees' legitimate solicitation rights. He asserts
that Respondent's reliance upon those Supreme
Court decisions cited as supporting its position is
misplaced, and that those cases do not indicate that
the cloak of protection demanded by the welfare of
the patient should be transferred to the patient's
relatives and friends. The General Counsel further
contends that patient care areas, wherein no solici-
tation can take place, must be directly connected
with patient care and directly involve patients.
Equating the friends and relatives of patients with
patients themselves, argues the General Counsel, is
not only beyond the scope of legitimate concern
for patients, but the acceptance of such an equation
would place the entire hospital out of bounds in
terms of solicitation because relatives and friends of
patients are everywhere in a hospital. We find
merit in the General Counsel's argument.
In considering the employees' Section 7 rights to
engage in union solicitation with reference to any
potential impact which these activities may have
on the well-being of patients in health care institu-
tions, we are of course mindful of views expressed
by the Supreme Court in cases cited by the parties
herein. Thus, we have carefully reviewed the
record in this case in light of, inter alia, opinions of
the Court in Beth Israel Hospital v. L. R. B., supra,
Baylor University Medical Center v. N L. R. B., upra,
and VN.L.R.B. v. Baptist Hospital. Inc., supra. We
are not persuaded, however, that the special con-
cern for patient welfare expressed in those opin-
ions, and which we share with the Court, compels
that a similar protection from organizational solici-
tation be afforded members of the public who are
not themselves patients in the hospital environ-
ment. As noted supra, the lobby at issue in this case
is used primarily by the general public, rather than
by patients of the hospital. Nor does Respondent
claim in its supplemental brief that the lobby is a
patient care area or that any aspect of patient treat-
ment is administered there; instead, Respondent
seeks to introduce evidence regarding the use to
which the lobby is put by visitors and families of
' In support f this assertion,. Respondent quoles from the concurring
opinion f Jstice lackmun ill Beth Isrcetl ltospita \ L.R R. supra at
S0'). as quoted h5 the majoritN in .' 1. R B s fluaptit lopiutl. In . upru
at f 12
227
DECISIONS OF NATIONAL AfiOR REL ATIONS 13()ARD
patients, as well as alternative areas and means of
solicitation available to the Union.16 Having re-
viewed the evidence with respect to this lobby, fo-
cusing particularly upon the delivery of health care
services at EMMC as that may involve the lobby
area at issue, we conclude that union solicitation in
this lobby will not adversely affect patient care or
disturb patients. Accordingly, we affirm the Ad-
ministrative Law Judge's finding that Respondent's
interference with off-duty employees engaging in
union solicitation in this lobby violated Section
8(a)(l) of the Act.
Inasmuch as we agree with the Administrative
Law Judge, for the reasons fully stated by him,
that Respondent has committed unfair labor prac-
tices in violation of Section 8(a)(l), (3), and (5) of
the Act, we shall adopt those portions of the Ad-
ministrative Law Judge's recommended Order re-
quiring Respondent to cease and desist from its un-
lawful conduct and to take affirmative actions de-
signed to restore the status quo ante adhering prior
to Respondent's unlawful actions and to make
whole employees who suffered monetary losses as
a result of those unfair labor practices. 7 We shall
also adopt the Administrative Law Judge's recom-
mendation that the notices to employees required
by that Order be mailed to the homes of all present
employees and all those employed by Respondent
since March 1, 1977,t' whether in the bargaining
unit or not. We find this requirement appropriate in
view of Respondent's extensive violations, the evi-
dence that its unlawful conduct was motivated in
part by a desire to squelch any unionization in
order to deter further organizational efforts with
respect to other hospital employees, and because of
the passage of time since commencement of Re-
spondent's unfair labor practices due to the pro-
tracted nature of these proceedings. Our primary
concern with regard to the posting and mailing of
notices is that all employees potentially affected by
Respondent's actions be apprised of the unlawful
nature of these acts and assured that they will not
be repeated.
We shall not, however, adopt those additional
remedies recommended by the Administrative Law
I6 Respondent in its brief identifies the cafeteria, timeclock areas, break
or lounge areas on patient floors, and exterior grounds as areas wv.here so-
licitation was permitted. The General Counsel, in his brief in opposition.
avers that Respondent's statement in this regard is not true, and that the
no-solicitation rule was in fact enforced in such areas, claiminig that the
fact that Mclnnis and Rose did solicit in the cafeteria without being
ousted can only be attributed to Respondent's ignorance of their activi-
ties. Assuming, urguendo, the availability of these additional areas fitr so-
licitation, e nonetheless cnclude that Resptttdent's ban o solicitition
in the second floor public lobby is not justified
a See Ogle Protection Servcei, Inc. X183 NLR 6hX2 (1970).
'" The first charge in this case was filed on September 1, 1977 Sec
I(b) of the Act therefore bars consideration as unfair labor practices of
any conduct occurring prior to March I, 1977
Judge which would require Respondent to publish
the notices in a newspaper of general circulation
and to post them for a -year period unless impasse
or a contract is reached prior to that time, to bar-
gain 15 hours per week in the presence of a repre-
sentative from the Federal Mediation and Concilia-
tion Service should the Union so request, to pre-
pare written bargaining progress reports to be sub-
mitted to the Regional Director for Region I peri-
odically, and to reimburse the Union for any and
all expenses incurred in bargaining with Respond-
ent from March 1, 1977, until June 22, 1977, the
date on which bargaining ended. Respondent has
not demonstrated that it has a proclivity to violate
the Act once its actions have been adjudicated un-
lawful, and we do not find these further remedies
appropriate in these circumstances. Accordingly,
we shall modify the Administrative Law Judge's
recommended Order by deleting provisions relating
to these recommended requirements.
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, as modi-
fied below, and hereby orders that the Respondent,
Eastern Maine Medical Center, Bangor, Maine, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraphs 2(c),
(d), and (e):
"(c) Rescind any rules restricting the areas and
times in which employees may solicit on behalf of
labor organizations as they apply to times other
than working time and to areas other than immedi-
ate patient care areas; also rescind any no-access
rule insofar as it applies to off-duty employees and
prohibits them from soliciting on behalf of labor
organizations in the outside nonworking areas of
the hospital premises.
"(d) Upon request, bargain collectively and in
good faith with MSNA as the exclusive bargaining
representative of the employees in the above-de-
scribed unit.
"(e) Post at its hospital facilities in Bangor,
Maine, copies of the attached notice marked "Ap-
pendix." Copies of said notice, on forms provided
by the Regional Director for Region 1, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
228X
IASITIRN NAINI NMEt)DICAI CTNTl FR
by Respondent to insure that said notices are ot
altered, defaced, or covered by any other material.
Copies of said notice shall also be mailed to all eni-
ployces on the payroll as of March 1, 1977, and to
all present employees at their homes."
2. Delete paragraphs 2(f) and (g) anid relctter the
subsequent paragraph accordingly.
3. Substitute the attached notice for that of the
Administrative La\w Judge.
APP lEND)IX
Nol Ict To EM ll OYI.it. S
POSItIt) BlY ORI)IR OFt Tit
NA\IONAi LABOR R ..,vJ IONS BOARI)
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WI. w.lll. NOI promulgate, maintain, or en-
force any rule, regulation, or other prohibition
against employees who solicit on behalf of any
labor organization on our hospital premises in
other than immediate patient care areas, during
employees' nonworking time.
Wi. Wiil. NT promulgate, maintain, or en-
force any rule, regulation, or other prohibition
which prevents off-duty employees from dis-
tributing or soliciting on behalf of any labor
organization in the outside nonworking areas
of the hospital premises.
Wt! wiLt. NOT interrogate you regarding
your union sympathies.
WIt witL. NOT withhold general wage in-
creases which are otherwise due to employees
because they have chosen to bargain collec-
tively through the Maine State Nurses' Associ-
ation (MSNA) or any other labor organization.
WL Wll NOT refuse to bargain in good
faith with MSNA as the exclusive collective-
bargaining representative of:
All full-time and regular part-time general
duty nurses (staff RN's) employed by the
Employer ait its Bangor, Maine Medical
Center locations, including nurse anesthetists
anid all instructors and assistant instructors at
the School of Nursing hut excluding em-
ployee education instructors, supervisors, as-
sistant supervisors, head nurses I and II,
guards, all other supervisors as defined in
the Act, ad all other employees.
WVI: il I. NOI make changes in wages,
hours, and terms and conditions of employ-
mnicnt in the above unit of employees without
first notifying and consulting ith N;ISNA af'-
fording it the opportunity to bargain about
these subjects.
W. IV ll NOI interfere with restrain, or
coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
WIE Will rescind any rules restricting the
areas and times in which employees may solic-
it on behalf of labor organizations as they
apply to times other than working time and to
areas other than immediate patient care areas:
also rescind any no-access rule insofar as it ap-
plies to off-duty employees and prohibits them
from soliciting on behalf of labor organizations
in the outside nonworking areas of the hospital
premises.
Wl wlit , upon request, recognize and bar-
gain with the above-named labor organization
as the collective-bargaining representative of
the employees in the unit described above re-
specting rates of pay, wages, hours, or other
terms and conditions of employment and, if an
understanding is reached, embody such under-
standing in a signed agreement.
Wi c witi. make whole all the bargaining
unit employees affected for any loss of pay
they may have suffered as a result of our dis-
crimination in refusing to grant to them gener-
al wage increases on and after about April 3,
1977, to which they would have been entitled
but for their protected activity on behalf of
MSNA, plus interest.
EASTEIRN MAINI MEI)ICAI CENTER
DECISION
SIATHr MtiNT OF l'tl CASF
RORI-Rr A. GIANNASI, Administrative Law Judge:
This consolidated case was heard before me for 9 days in
January and May 1978 in Bangor. Maine.
The representation case, Case ! RD-888, was initiated
by the filing of a petition to decertify the Maine State
Nurses Association (referred to as MSNA or the Union)
which had been certified by the Board as the exclusive
bargaining representative for Respondent's nurses. Re-
22)
I)ICISI()NS OF NATI()NAL L.AI()OR REL.A'I)NS B()ARI)
spondent and MSNA had been bargaining for a first col-
lective-bargaining agreement. Pursuant to a Stipulation
for Certification up on Consent Election executed by the
parties and approved by the Regional Director for
Region 1, an election was conducted on July 28, 1977.
among Respondent's nurses in an agreed-upon appropri-
ate unit.' MSNA lost the election but filed objections to
the election based on conduct of Respondent which it al-
leged interfered with a free and fair election and re-
quired that the election be set aside and a new one held.
O()n September 28, 1977, the Regional Director issuel a
Report on Objections in which he recommended that all
of the objections but one be overruled and that one, ()b-
jection 3 involving Respondent's no-solicitation rule, be
sustained. He therefore recommended that the election
be set aside and a second election be directed. ()n Octo-
ber 4, the Regional Director issued a Supplemental
Report on Objections revoking the earlier report and
stating that Objections 2, 4, and 5 raised issues of fact
and law best resolved by an evidentiary hearing. MSNA
thereafter withdrew Objections 4 and 5.
On October 28, 1977, the Regional Director issued a
complaint in Case -CA-1357() which he consolidated
with the remaining issues in the representation case, Case
l-RD-888. The complaint alleged that Respondent vio-
lated Section 8(a)(1) of the Act by soliciting employees
to decertify MSNA, maintaining and enforcing unlawful
no-solicitation and no-access rules, and specifically inter-
fering with legitimate union solicitation; Section 8(a)(3)
and (1) of the Act by withholding, since April 177,
wage increases from bargaining unit employees while
granting them to nonunit employees; and Section 8(a)(5)
and (1) of the Act by failing to bargain in good faith
with MSNA since August 25, 1976, and at all times
thereafter. 2
Respondent filed an answer essentially denying the
substantive allegations in the complaint.
All parties filed proposed findings and conclusions and
supporting briefs which were received on or about
August 16, 1978.
Upon the entire record in this case, the briefs and con-
tentions of the parties, and from my observation of the
witnesses and their demeanor, I hereby make the follow-
ing:
' he appropriate collective-bargaining unit, as set forth in the stipula-
tlion, s:
All full-time and regular part-time general duly nurses (staff RN5')
employed by the Employer at its tiangor. Maine Medical Ceuiter lo-
cations, including nurse anesthetists ad all insiruclors ad Asslstant
instructors at the School of Nursing but excluding employee educa-
lion instructors, supervisors, assistant supervisors, head nurses I and
It, guards, and all other supervisors as defined in the Actl and all
other employees.
The Cieneral Counsel as permitted to amend the complaint at the
hearing over the objection by Respondent to add a charge f unlawful
interrogalion I also granted Respondent's motion to specify certain as-
pects of the 8(a){5) allegatin f the complait. And I granted the iern-
al Counsel's motion to amend the 8(a)(5) allegation by adding a genieral
charge that Respondenl's conduct was "calculated tlo undermine the
status of the Unlilon as exclusive bargaining agent."
FINI)INGS 01 FA( I
1. tLUSINI.SS 01 RI SPONI)I-NI
Respondent operates a nonproprietary hospital in
Bangor, Maine, where it provides medical and health
care services. It receives from points outside Maine
goods valued annually in excess of $50()(XX) and anniuall
receives gross revenue in excess of' 25()}(XX) from the op-
eration of its medical center. Accordingly, I find, as Re-
spondent admits, that it is an eriployver engaged in corn-
mrce within the meaning of Section 2(2). (, and 7) of
the Act.
1. Tl'1 I.AIlOR OR(ANIZA\ II()N
The complaint alleges that MSNA is a labor organiza-
tion within the meaning of Section 2(5) of the Act which
reads as follows:
The term "labor organization" means any organi-
zation of any kind, or any agency or employee rep-
resentation committee or plan, in which employees
participate and which exists for the purpose, in
whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work.
Respondent denied this allegation stating, in its answer,
that at its annual meeting in September 1977, MSNA
voted to discontinue serving in the capacity of a labor
organization. In an amended answer filed on January 3.
1978, Respondent added that MSNA was "incompetent
to serve as exclusive bargaining representative for the
nurses by virtue of the fact that the union nmembership
includes large nunibers of supervisory personnel.
N. L.R.B. v. Annupolis Emergenv ospital .Is ociation,
561 F.2d 524 (4th Cir. 1977)."
I reject Respondent's contentions and find that MSNA
is a labor organization competent to represent the bar-
gaining unit employees. MSNA was first certified by the
Board on May 26, 1976, as bargaining representative of
Respondent's nurses. It bargained with Respondent until
June 1977. Respondent made no objection to the status
of MSNA as a labor organization during this period. Ac-
cording to its bylaws, MSNA, through its Council on
Economic and General Welfare, directs a program for
nurses "eligible for representation under . . Federal
laws" and has the authority to execute collective-bar-
gaining contracts. By virtue of this authority, the Coun-
cil undertook various organizing campaigns, including
the one involved at Respondent's facility.
Evidence was adduced that, prior to the 1977 annual
meeting of MSNA, a resolution was prepared stating that
the economic and general welfare program had caused
divisions among the membership. The resolution pro-
posed that MSNA suspend its economic and general wel-
fare activities for 1 year and that the "future direction of
Economic and General Welfare will be determined by
the Board of Directors between conventions." The reso-
lution was passed unanimously at the September 25,
1977, meeting of MSNA. During the deliberations prior
to the vote on the resolution, there was discussion and an
23()
EASTERN MAINE MEDICAL. C(ENTEIR
understanding that the resolution did not apply to the
MSNA activities at Respondent's facility. A this point.
MSNA had filed objections to a decertification election
as well as charges of unfair lanor practices which
spawned this litigation. MSNA President Vera Gillis tes-
tified that the membership understood that the MSNA
was legally and morally bound to fulfill its obligation to
the nurses it represented at Respondent. The minutes of
the meeting confirmed that "the MSNA Board is legally
bound to complete the activities at Bangor (EMMC) if
these activities are reopened by a pending NLRB ruling.
No new, activities may be initiated by the MSNA, G/WV
Council." A few days after the meeting, Gillis added to
the resolution an explicit statement that:
The intent of this resolution was not to withdraw
from the ongoing activities at Eastern Maine Medi-
cal Center but to halt any further action outside
EMMC for the time being without the knowledge
and consent of the Board of Directors.
The resolution together with the explanatory note was
sent to the parent American Nurses Association as re-
quired by the resolution. At its November meeting the
executive board affirmed a continued commitment to the
reolution of the conflict at Respondent's facility.
Based on the above, it is clear the MSNA did not
completely vitiate its intent to act as a labor organization
and it expressly preserved any such responsibilities as
might flow from favorable resolution of the pending
issues before the National Labor Relations Board with
respect to Respondent's operations.
Respondent's second argument is also without merit.
MSNA was certified by the Board on May 26, 1976,
after it had won a Board sponsored election. MSNA first
started organizing Respondent's nurses in the spring of
1975. At no time during the Board representation pro-
ceeding did Respondent raise the contention that MSNA
was incompetent to act as bargaining representative al-
though MSNA undoubtedly had as many supervisory
members then as in January 1978. Nor did Respondent
raise the issue in Case 1-RD-888 prior to the election or
at any time before its amended answer to this proceeding
was filed in January 1978. Moreover, as shown, infra, in
this decision, Respondent negotiated with MSNA
throughout late 1976 and half of 1977 as if it were "com-
petent" to bargain for the nurses. In these circumstances,
I find and conclude that Respondent has waived or is es-
topped from now asserting any right it may have had to
object to the competence of MSNA as bargaining agent
because it admits supervisors to general membership.
Respondent's argument also fails as a matter of sub-
stance. Although MSNA admits supervisors to general
membership and two supervisors serve on its executive
board Respondent conceded that none of its supervisors
a It is doubly ironic that Respondent seeks to a ail itself of this issue.
Aside from being excepted from the resolution, Respondent, by its cron-
duct, caused the MSNA disenchantment with further organizing and bar-
gaining actistles. In her report in support of the resolution at the Sep-
tember convllienion to suspend council activity. the chairperson of the
('ouncit stated that the financial drain and use of staff time caused by the
bargaining slith Respondent ere major factors for the resolution. She
also pointed io the results of the decertificatlon election.
are officers of MSNA and it has not submitted evidence
that its supervisors were members in significant numbers.
The Board has held that, absent significant participation
by an employer's own supervisors in a bargaining agent's
affairs, there does not exist a sufficient supervisory taint
to render a union incompetent to serve as bargaining
agent. Oak Ridge ospital (/f the Unitd Methodist
Church, 220 NLRB 49 (1975); ('arl Cihnic Association,
192 NLRB 512. fn. 5 (1971). In any event, the economic
and general welfare program of MSNA-the collective-
bargaining arm of MSNA-is limited only to nurses "eli-
gible for representation" under Federal law. There is no
evidence that this eligibility requirement was not en-
forced. Respondent's supervisors did not participate in
the election which selected MSNA and they are not part
of the agreed-upon bargaining unit. Finally, the bargain-
ing in this case was undertaken through a local chapter
of MSNA with elected officials and committees from Re-
spondent's employees. Although officials of MSNA and
the parent American Nurses Association (ANA) headed
the union bargaining team the rest of the members were
employees of Respondent's and the local chapter, operat-
ed under its own bylaws, fashioned its proposals, and
had the right to ratify or reject any agreement reached.
The Board has held that where, as here, the bargaining
authority of a certified union has been effectively dele-
gated to a local unit with no supervisory influence there
is no basis to disqualify the certified union because of su-
pervisory participation in its affairs. Sister o Charity of
Providence, St. Ignatuis Providence, d/h/a St. Patrick Hos-
pital, 225 NLRB 799 (1976). 4
As the First Circuit has stated in analyzing a similar
contention, "there is a considerable burden on a non-con-
senting employer . . . to come forward with a showing
that a danger of a conflict of interest interfering with the
collective bargaining process is clear and present."
.L.R.B. v. David Buttrick Company, 399 F.2d 505. 507
(Ist Cir. 1968). This Respondent has not done. It has
failed to establish that there exists any conflict of interest
or any other prejudice to it by virtue of bargaining with
a union simply because it admits supervisors to general
membership and to its executive board.
Respondent's reliance on the Fourth Circuit's decision
in VL.R.B. v. Annapolis Emergency Hospital Association,
561 F.2d 524 (4th Cir. 1977), is misplaced. First, in that
case, there was no waiver or estoppel by virtue of a long
period of actual bargaining as there was here. In Annap-
olis, unlike here, the employer urged supervisory domina-
tion from the beginning of the representation case. Sec-
ondly, in this case, the MSNA was limited by its bylaws
to bargain only through the Council of Economic and
General Welfare and only for "eligible" employees
which by its terms excluded statutory supervisors. It
does not appear that the operative council in Annapolis
had a similar eligibility requirement (217 NLRB 848).
Thus, here, unlike in Annapolis, there was no actual or
potential supervisory domination of the bargaining agent.
I The danger posed by suprrrislr dominili ,on of a bargailinig agent is
the possibihtll that an employer may sind up ilting tcross Ihe bargain.
Ing table from his itn supervis,ors r those of hi, ompetlt irs This is
hardly a danger here
231
I)ECISIO)NS OF NATI)NAL I.AIO)R RLATIONS h()ARD
To the extent that the Fourth Circuit's decision can be
read to conflict with Board decisions on conflicts of in-
terest, supervisory domination or effective delegation to
local chapters, I am bound by the decisions of the Board.
111. ti1 5 I AC IS UNI)IiRLYIN(, 'I'tIE AI 1I.(i.) NFAI IR
I A\l()R PRACICIIS
A. Background
Respondent runs the second largest hospital in the
State of Maine with almost 400 beds and a gross value of
patient services totaling some 30 million dollars. It em-
ploys between 1400 and 1500 employees, over 2(00 of
which are registered nurses, the basic unit herein. The
hospital has a school of nursing where students receive
diplomas and are often hired as graduate nurses who
must then be licensed to become registered nurses. Re-
spondent's director is Robert Brandow.
MSNA started organizing the registered nurses at Re-
spondent's facility in the spring of 1975 and filed an elec-
tion petition with the Board on January 23, 1976. An
election was held on March 18, 1976, pursuant to a Stip-
ulation for Certification Upon Consent Election. The
nurses voted to be represented by MSNA and Respond-
ent, which had opposed MSNA representation for its
nurses, filed objections. There is uncontradicted testimo-
ny, during the early days of the organizing drive, that
Administrator John Johnson expressed concern to his
aides about the MSNA campaign and said the Union had
to be "stopped."
A day after the election, on March 19, 1976, Respond-
ent distributed a memorandum to all employees announc-
ing improvements in wages and benefits. Registered
nurses in the unit which had recently voted in the Board
election were explicitly excluded. Wage increases for all
nonbargaining unit employees were implemented during
the week of April 14, 1976. The increases averaged
about 9 percent for certain classifications and about 6
percent for another group of employees.
Also during this period, Respondent announced the
following benefits for all employees except registered
nurses: an increase in hospital paid life insurance and
professional liability insurance.
On May 26, 1976, the MSNA was certified as bargain-
ing representative for the registered nurses.
B. Bargaining in the Latter Part of 1976
In August 1976, after meeting with a committee of Re-
spondent's employees to fashion bargaining proposals,
MSNA mailed its first contract proposal to Respondent.
It was received on August 26 and contained both eco-
nomic and noneconomic items.
The parties first met on October 14, 1976, for the pur-
pose of setting out ground rules for future negotiating
sessions. Nancy Chandler, MSNA director of economic
and general welfare, headed the MSNA team along with
elected employee representatives, including Local Presi-
dent Pat Martin and others. The chief management
spokesman was attorney Malcomb Morrell. MSNA asked
that the employee representatives on the bargaining com-
mittee be given time off from work to participate. Re-
spondent refused. The parties agreed that the sessions
would begin at 4 p.m. and last as long as they were pro-
ductive.
At this meeting, Respondent presented its first none-
conomic proposal. Morrell stated that Respondent would
discuss only noneconomic proposals first. He also said
that the noneconomic matters would hae to he agreed
upon before discussion of the economic issues and Re-
spondent's economic proposals would be contingent on
acceptance of Respondent's noneconomic proposals.
Morrell insisted that the parties bargain on the nonecon-
omic issues first but MSNA did not agree to this proce-
dure.
MSNA also requested that bargaining sessions include
a number of consecutive 2- and 3-day periods because its
chief negotiator, Les Kuykendall, an official of the
parent American Nurses Association, had to travel from
Kansas City, the headquarters of ANA. Morrell declined
saying it was against his principles to negotiate more
than -day per week.
On November 4, Morrell reviewed some of the
ground rules discussed at the October 14 meeting and
stated that the parties had agreed to discuss noneconomic
matters first and to agree to them before discussing eco-
nomic matters. Nancy Chandler, who had been present
at the October 14 meeting, testified that she objected and
stated that MSNA officials had not agreed to this proce-
dure. Kuykendall confirmed that MSNA officials object-
ed and stated they did not agree to this procedure. Mor-
rell testified that there had been agreement on this proce-
dure on October 14 aid that, when he raised the matter
again on November 3, neither Kuykendall nor any other
MSNA representative objected. He also testified that, on
November 4, when there was a dispute between him and
Kuykendall over whether to discuss an MSNA economic
proposal Kuykendall got angry and Morrell reminded
Kuykendall of the agreement to discuss only nonecono-
mic matters. According to Morrell, Kuykendall denied
the agreement. Respondent's administrator, John John-
son, who was present at the negotiations on November 3
and 4, essentially corroborated Morrelli 3
I do not credit the testimony of Morrell on this issue
and credit instead the testimony of Kuykendall and
Chandler that there never was an agreement by MSNA
officials not to discuss economics until the noneconomic
issues were resolved. First I have credited Chandler and
1 T'his is based on the estimony (lf Nancy Chan;dler and i)oroth
Baron who were straightforward and candid lties\si Baron particular-
ly was a witness who as totally without guile and hillth uitllesse carl-
didl1 admitted to matters which w:cere cntrars ihe inlterests of M SNA
I d, riot credit the contrary testimony of Mo rrell which was self-setrsilg,
argumentative. and, at limes, easive lie ted slt lforth his procedure
that noneconomics would be negotiated fir - well before Octoher 14
when he prepared Respondent's first proposal. nd his sa as hs argaill-
ing procedure over a 20-ear period His Ilnote' f he mccting do ot x-
plicilly sate that MSNA agreed to his proced ure he notes atle "non
economics firsl" ad 'ec(iol mics a a packagc" te u tlaXt ip l sitl of
these statements leads me to conclude, contrar) to Morrell's estirnlors,
Ihat tihe notes "vere not maillnt to show igreerlent iron these rilrttcrs since
the Union never agreed ito "economics as package" Significantly. i an
exchange of etters after this October 14 meeting conflllirmirg dates and
times fr future meeting,. Morrell ne.er merintirnled an agreemenrt rio, to
nregoiate economic ma;lters. 'ina
l l
y (r\ Conover, who was preserin at
this meeting, was nlt called as a witness to corroborate Morrell
`h Johnsonl "as not present at tihe October 14 rctling
232
EASTFSRN MAINE MEDICAL CENTER
Baron that there was no agreement not to discuss eco-
nomics on October 14. Moreover. according to both
Johnson and Morrell, at the November 4 meeting Kuy-
kendall and Chandler definitely refused to agree to Mor-
rell's procedure. Yet Morrell never really accepted this
reality. He testified that even after November 4-until
the end of the January 5 meeting--he adhered o the
view that there had been a prenegotiation agreement
"which on November 4, somebody was trying to re-
tract." Indeed, in his December 13 response to a letter
from Nancy Chandler concerning NMSNA's agreement
not to file charges if Respondent gave the nurses the
1976 general wage increase it gave other employees.
Morrell volunteered that there wvas an agreement to dis-
cuss and agree to noneconomic items before discussing
economic matters, even though, by his own testimony,
he knew on November 4 that there was no such agree-
ment. Even in January when he agreed grudgingly to
MSNA's persistent effort to have him submit an econoin-
ic proposal Morrell volunteered that he thought it was
premature.' From these facts, and from observing Mor-
rell's demeanor on the witness stand, I am convinced
that he testified that there was agreement on this matter
because he wished it and had proposed the procedure.
He impressed me as a man who was so arrogant in ex-
pressing his views that he could not see that others had a
different view. Accordingly, although Morrell's testimo-
ny on dates was more accurate than that of the other
witnesses, I do not credit his substantive testimony. To
the extent that Johnson corroborated Morrell on this
issue I believe he was tailoring his testimony to support
what he perceived to be Morrell's position and I also
reject his testimony.
On October 14, the parties agreed to meet again on
November 3 and 4 and on two other dates in November
and also on December 1.
The first actual bargaining session was held on No-
vember 3. Morrell was the chief Respondent negotiator
and Kuykendall was the chief MSNA spokesman. At this
meeting and the meeting the next day Kuykendall and
Morrell explained their proposals. In the course of Kuy-
kendall's explanation of the MSNA proposal Morrell
stated that Respondent was not going to negotiate on
economic matters until the parties settled the nonecono-
mic portions of the contract as a package. He said that
only at that point would Respondent submit its economic
package. Kuykendall rejected this position and said he
was going to talk about every provision in the MSNA
proposal. At each point when an economic issue in the
MSNA proposal was discussed. Morrell mentioned Re-
spondent's position on discussing and agreeing on none-
conomic matters first. Kuykendall also requested health
insurance information from Respondent and Morrell
promised to provide the information at the next meeting.
There were no agreements-tentative or otherwise-
made on November 3 and 4.
Kuykendall again mentioned the necessity lbr back-to-
back bargaining sessions due to his having to commute
It Is Nali' C (handler's ucontradlicled tecsllnil? that. at oIlte Of Ilt
hargainilng sessir atith tiu
illd .lltd :Itllliic iinto i idei1c with no objeclitli h Rcsponldni RIc-
plilltltlt nlov urge hait 1i did nol otut? lhe exhiitll II uffiClel detlil
h't Itt Iglt'll lg Ill It' If11li1tInl l c'idcllc
i .Ill .ltlti'LoH uhtlllll tCd ilth Ihc Ill(Olioll ili enl Ihollinas Jiohlll)lq
s.itic that dljrillng the Jelc 22. 1977 bargainiig sw torn. (i Fx 21 .a
hniltted %iSNA. ht Ihalt MSNA officials .crer toid I disrgaird the
ltOCilR ll, tr illd i to sublstilt C e aiollher dit.c' nirll i (I Xh A te It li- i11til.
tliih .itis t, 1h thle pertitl ece nofltrnic prot)o;l tlhu,, it ippcatrs ihllit
thrre xCr t, C-(1.llini propotas;l submitted by Repondctlll I Juitl 22
in hi' tIt.iliIill. s J h,li tsO [t.ltaled tlllhai Iel opr.ltl JiiiiL. ' tqltaIIL<-
rpo s tl l-td 1l1e' .illriilg trine Ofr hllh 1iFil to ir e l 11I'i Cll[p ;N
te Ironl .I Illnlthls I mollntlrh nd Ihat the parile d ip C s Ii hilihtn ll-tir-
l1ice Aictuall tite .orking pcriod rdulitiOn 1 its Jlrelu rcclcted In thli
Siarel 12 proposal ht Johnsito11, triinI dtiP', t i l l lriticlc.
'aii, It1citlliiol ;it thl' iit1 illn tl s t IidtiI lht ti.ltr Ih5 Jule prop-s al
Illilud d the sasie Ilril, Itie itncris .is i eS. Ill thle Nalrch prpaosl ill
I " or, tll IIi lll\. t ".l] gralll RponlldenCts ntiler li 1 eiel t
%sillJ rmake RCt'poliil'tils iI1(It111 tIgtlhltr .tili It1 .I cllrlictIIlt ;Ird1 Iti, or-
pOritlOIll 11/' ht (iel.l'llJ ( mlt'l ;aid k'hIll i lPar> n\! Itxlhll AIJ
I Olhll I
277
I)t ISIO()NS 1) NAI'I()NAI. IABlO()R RFlATIO()NS li()ARI)
and Johnson- as to whether, after Januarv 26, 1977,
when it made its economic proposal, Respondent contin-
ued to adhere to its earlier position that it would not dis-
cuss or negotiate economic matters until the resolution of
noneconomic issues. Much of this testimony on both
sides was given in coniclusioniary terms and i response
to leading questions. I also perceived a semantic difficul-
ty, on the part of all witnesses, in distinguishing almong
the terms "discussion" of economics "'negotiation" of
economnlics, or "agreement" on ecolnomlics, i connection
with Responldent's position. t' Without resolving the con-
flicts on this issue, particularly because of the semantic
difficulties, I conclude that there was discussion of eco-
nomic issues after January 26, 1977. These discussions,
however, amounted to little more than each side explain-
ing its proposals, giving reasons for its position, and an-
swering questions and arguments ronm the other side.
What is significant and gives suhbstl to the conflicting
testimony is Respondent's position, c; brth in documeni-
tary evidence. In Respondent's March 11, 1977, submis-
sion to the BOI Morrell stated as follows:
If the non-economic provisions of the Medical Cen-
ter's proposal were accepted substantially in their
present form, the Medical Center would be pre-
pared to move into erious discussion.s of the eco-
nomic package [emphasis supplied.]
And the June 1977 economic proposal was explicitly
conditioned upon acceptance of Respondent's nonecono-
mic proposal and acceptance of its economic proposal as
a package. 14 No such conditions attached to the MSNA
proposals, economic and noneconomic. As Morrell ex-
plained in his testimony Respondent's conditions never
changed in substance and they meant at the very least
that there could be no tentative agreements on individual
economic issues. Indeed, there were none, unlike on non-
economic issues where there were numerous tentative
agreements reached, Respondent's economic proposals
had to be accepted as a package. Thus, I find that Re-
spondent's consistent position, after January 26, 1977,
was in effect a refusal to seriously negotiate economic
issues: There could be no agreement on economic
issues-unless MSNA accepted Respondent's total eco-
nomic package-until resolution of the noneconomic
issues. Indeed, by June 1977, Respondent had made clear
the resolution of economic issues meant acceptance by
MSNA of Respondent's noneconomic package which in-
cluded some tentatively agreed-upon matters but also
some positions like management rights aid finality to
1al For example. Kuykendall's ulnconttratdicted tes llln ll) Is in early
March Morrell refused to "nlegiltiate" n economic ma ters Johnsl ts-
tified that in February Mrrell agreed that here llust hb agreemenl t 1
noneconomic items first. Chandler testified thai ill April anld MaN 1977
"all economics hinged upon our agreement with the ionecrle mic pack-
age" and that Morrell stated th i econrllic n matters could t e "agreed
to nlw" Ilaron testified tha RHesporndenl would riot "discuss" ecoomllc
issues arid Morrell testified generally that he neser refused to discuss
economics'
14 tihe phrasing of this c tdilioln was a hit differelt than in tihe Jailtl-
ary aid March proposals which menitililed "agrrllt l t is t no-
econonmic issus" rather than acceptance of ( ith Rspollldent's Inrlecono-
mic proposal Morrell'% testinl yll) is that Ihe "sibsilallnc. lld illteit" if
the language was the same
which Respondent had adhered fromi the beginning of
negotiations.
It is also uncontraldicted that, throughout the negotia-
tions Respondent maintained its position that all tentative
agreelmelts it cntered into colncerning noneconomic mat-
ters .s*cre conditioned upon acceptance of its manage-
nment rights clause and its finalit' clause. Respondent
never deviated from insistence upon these clauses and
their content from the beginning of negotiations to the
end. TIhese clauses were included i its noneconiomic
proposal of June 22, 1977.
G. he )Decerlificution Elcction and Suhbscquent Wage
and Benefit Increases
A decertification petition was filed on May 31, 1977,
prior to the last bargaining session on June 22. After the
Regional Director approved all election stipulation the
election was held on July 28, 1977. MSNA lost the elec-
tion hut filed objections and unfair labor practice charges
which are the issues presented in the instant case.
The day after the hearing in this case was recessed on
January 26, 1978, Respondent increased the wages and
benefits of bargaining unit employeess. ()n January 27,
1978, a memorandum from Brandow to all registered
nurses stated as follows:
The hearing concerning the status of the July 28,
1977 nurses election has been suspended until May
1, 1978. It will be many months before a final deci-
sion is received.
The Medical Center has decided to make im-
provements in the wage scales and benefits for
nurses.
First, we offered a 6% increase in the wage
scales to the union at tihe bargaining table on March
12, 1977 and again on June 22, 1977. This increase
will now be made effective as of January 29, 1978.
Secold, to reflect the increased burden of costs
since last spring the wage scales for the nurses in
the bargaining unit will be increased an additionial
6% as of January 29, 1978.
Third, we will implement the following benefits
(which were offered to the union June 22, 1977) ef-
fective January 29, 1978 or as soon thereafter as
these arrangements can be made with the necessary
insurance carriers:
1. Hospital paid liability insurance ($1,0(00,000).
2. Increased life insurance and accidental death
and dismemberment (S8,0(X).
3. Long term disability insurance for full time
personnel.
4. Shortened waiting period for health insurance.
5. oliday time considered time worked for pur-
poses of computing overtime.
6. Hospital paid Blue Shield premiums for full
time employees. '
()O February 16, 1978, another memorandum from
Brandow aountced general age increases for all em-
I' he t ah ec hellcit s erl all inclufed in Respindent's alch 12,
1'977, citrllOTIi c proposal
238
FAS'1ERN MAINI NIlt'l)l(AI (CINI R
ployees, including nurses. effecti,e March 26. he wagL
increases, based o a sutirvc conlducted in )eember
1977 ad annouinced to etnployces at that timni. Acre inl-
plemented. The iiirses received all increase of 5.6 per-
cent and othe r clipltyces rteived a 6. 5-percenit in-
crease.
It is uncontcsted that Responidet did not notif., con-
suit, or offer to hariain with NISNA before implernirlta-
tioi of tlhe Jailiary and March w agc-and-benefit il-
creases i
I. I)S( t SSl(ON NI) SNAI SIS
A. 'reliminur Lv tes
I turn first to alleged violatiols whose uderlying flts
\were lotl discussed i the fctual taltcrnlt set forth
above.
1. Interrogation
At the heariig, the General Counsel was permitted to
amend the complaint to add an allegation that since on
or about June 1977 Respondent, through its admitted
agent, I ouise MNoreshead, interrogated prospecti,e em-
ployees regarding their position on the Union. Fhe evi-
dence shows that sometrime in the spring of' 1977, proh-
ably in May, Cicrald I.aird and his wife, graduates of Re-
spondent's nursing school, made applications to work for
Respondent. They spoke with Louise Moreshead, the
head of the nursing department, in her office. In the
course of the interview, Moreshead asked them how
they felt about the lUniotn. Laird told her he had not
made up his mind about the matter. Moreshlead replied
that she agreed with some of the things that the nurses
were trying to do but niot the way they were doing
them. Apparently, the nurses were picketing at the time.
Laird was hired at $4.67 per hour plus a shift differenl-
tial.l
As shown by the uncontradicted evidence, in the
spring of 1977, Nursing Director Louise Moreshead in-
terrogated nurse applicants Gerald Laird and his wife
about their positions concerning the Union. Such interro-
gation was not accompanied by assurances against repris-
al, had no lawful purpose, and took place in an atmos-
phere conducive to coercion. The Lairds were asking for
employment and talking with a high official of Respond-
ent in her office. The interrogation is thus violative of
Section 8(a)( I ) of the Act
is Errors in the transcript have been nted and corrected except hose
which do not comporit vith my recollectionll or the obh itous immpori rf the
testimony in contrext and migtll i ollLe more than the rutlrIe COitrricL11i
of typographical errors
l7 This is based on the unconlradicted lestimony of I aIrd. A the bear-
ing Respondenl objected t the amendmenl of he comnplaint to add this
issue on h gtlnd that the ailrendnlcnI Invrl ed nmtierscr hich scre
nol related to the charges filcd in tis ca;,c t ove lrulcd lhe oblttlrl and
denied Respirndict mlitllt t dismis ,, ii the anL' griound stating
would hear eidence on the matier I ahere ti n rltingl thatl hi
amendment as sufficierIlI relatlld i the issue, presenled hereil to bc
Iitigaled in this priceding
2 Solicilallol o(f a emplosee to circulate
decertificatiol petition
lie (ietilral Counsel' s coilplaint also alleges that Re-
spolldcl xiolalted Sctioll 1)(a 1) of the Act swhen Super-
i sI lcIle litiLhotiI solicited cnilployees to decertifN the
MSN in March 10i77. In support of this allcgatiolt the
(icterl ouiisel ffcrC d lt1c tstillilyl (if i erlployc I'alm
Mcllnnis that ensonl approached her and employee Jac-
quclile \'afiades hile they were havinig a col\ersatlinll
in the hospital cafeteria ad brought up the subhject of ne-
goltiatiotns. Bentson stated that niegotiaonlls wcre goinig
slowsly, that it would nlot bc long before a tecertification
electillon could takC place, and that if Vafiades wailnted in-
ftornrlation about starting such a petition Bensou , ould
get the information for her. At the heariig Respondent
moXed to dismiss this allegalionl on the ground that it
,,'as barred by Section ()(hb) of the Act because it wr;l
not contained in the first charge filed on September
1977, but only in the ameinded charge filed on October
14, more than 6 months after the events. The General
Counsel argued that the original charge , as broad
enough to encompass the allegation. specifically i in
catci-alll" language that -hy tile above and other acts.
Respondent violated the Act. I reserx ed rulinig onl the
motion and ordered fill litigation on the issue. I now
rule that the aliegation is not barred by Section 10(b)
since it was sufficiently related to the first charge to
become part of the Gencral Counisel's complaint. See
.IL.R.B. . Central Power & Lh Comnpany. 425 F.2d
1318, 1320-21 (5th Cir. 197()).
Proceeding to the merits, I do not find a violation on
this allegation because I do not credit Mclilis' testimo-
ny. Vafiades, an anti-NMSNA employee, had participated
in committee meetings to draA up contract proposals for
MSNA. Thus, it is likely, as she testified, that she and
not Benson brought up the slox progress of the negotia-
tions. She also testified that Benson said nothing about
decertification. Benson corroborated Vafiades. They
were candid and straightforward witnesses and both
withstood vigorous cross-examination Their demeanor
impressed me that they were testifying truthfully. In ad-
dition, it is uncontradicted that the day after she testified,
McInnis telephoned Vafiades and apologized for having
to "implicate" Vafiades by her testimony. Vafiades told
McInnis that she was disturbed by Mclnnis' reported tes-
timony because she and not Benson brought up the nego-
tiations and Benson did not offer any decertification
papers Mclnnis also testified that Benson was referred to
by the term "Hi, Ben." Employee Vafiades testified that
Benson was not referred to in that manner and I am con-
vinced, after observing the demeanor of all the witnesses,
that her testimony was truthful. Accordingly, I shall dis-
miss the allegation that Respondent violated the Act by
soliciting employees to circulate a decertification peti-
tion.
3. No-solicitation and no-access rules and
interference with solicitation
The General Counsel also contends that Respondent
maintailned and enforced a unlawfully broad no-solicita-
tion rule, maintained and prom ulgated an unlawfully
24)
broaid ino-access rule, and specitically intlcrefercd ilh
pro-MSNA employees w\hen l tie alternpcd to distribhuc
union iraltcrial and solicit cnmpiloyces it March 177.
In the Respondenlt's employee handbook ;at page 21
the following rule is set forth:
Can itla ng
Canvassing or soliciting of amlny kind is prohibited
witlhin the Medical Center among employees and
patienits vvithout advance authorizationll fron the ex-
ccutive director. illntances of tilns ilt11-re should hC
referred to the executli\ director.
O()n ()ctober 1, 175. aftcr the MSNA orgallzting camn-
paign began, Rspondent issued memororanda updarliig or
revising tile rule I( caivllassillg set f'orth ahove. 'IhC re-
vised rule read as follows:
No employee shall solicit for anlly purpose on prop-
erty of the Easterni Maine Medical Center during
working time, exclusive of break tinme i non-work
areas.' Thre distribution of mallrials for any pur-
pose is prohibited in work areas, even durillg non-
working hours. Any person not an emplloye (of the
E`astern Maine Medical Center is prohibited from
enlterilig the premises to solicit or distribute at allny
time unless with permission. Instances of this nature
shall be referred to the office of the Executive Di-
rector.
On or ahout March 10. 1977. employees Parn Mclnnis
and Maggie Rose were soliciting other employees on Re-
spondent's premises to sign MSNA membership cards
and dues payroll deduction forms. Mcnnis and Rose
were off duty'. They approached employees in the calafetc-
ria between 9 and 10 a m. 'The cafeteria is on the second
floor of the hospital and is used by employees and mem-
bers of the public as well as ambulatory patients.
Mclnnis and Ross left after soliciting for 1 hour and
returned to tie hospital at or about 2:30 p.m. At this
time they solicited nurses coming on duty and going off
duty. The solicitation took place in a large waiting area
or lobby on the second floor which is openi to the genler-
al public. It is adjacent to conference rooms, the medical
library, the cafeteria, and the surgery waiting room. 'I'lihe
waiting area is used by people when there is an overflow
in the surgery waiting room where families wait for
news about relatives undergoing surgery. It is also used
by people on breaks from the conference room and by
nurses who congregate in this area prior to the beginning
of their shifts. The timeclock for nurses is nearby and at
one end of the area sits the desk of the chaplaii's seer,
tary. The waiting area or lobby is not a patient care arci.
'The nearest patient care area is some 2(X) feet away sepa-
rated by a corridor. The NLRB election i July 1977
was conducted in a room closer to the nearest patient
care area than the waiting lobby.
At approximately 4 p.m., Director of Personnel G;ary
Conover approached MclIlis and Rose and asked them
' I liillher mcnmora;ldunl irld ill i1 Si bscqtlctlll s tcckl s hullclilr tie
phrasc "llln-ork aire;" ,asl chaniged to "hreak arca, " Ih e wCekly hiJll
cli c*xcpted Ihl tlnitd Fuind frormll tlls rult
toI leave the premises. hey were speaking to o nurses
w(ho had ljust gone off duty Cono ,er mentionied that
there was it o-solicitation policy at te hospital and
asked them to leave the hospital. Mchlitis and Rose then
left te premises
Thce applicable 13ard principles are as follows: An em-
ployer's prohihition against employee solicitation on
work ti1le and against eniployee distribution in work
areas at all time,, is presumptively lawful. Conversely,
prohibitions againist lnonr orktirnc solicitation or distribu-
tilii, ol loll Oriorktili ad i olrvork areas arc utrllavful
uniless justiied by business reasoirl based on discipline or
otllr lccgithilat c i acto rs. Rcpuhlic .lviation Corp. v
.YL.R.B. 324 U.S. 793. 797 798 (1954); 'Stddardl-Q)uir
M.lujilzclurig Co. 138 NI.Ri 615 (1962). With respect
to hospitals, the Board rule is that. while a hospital may
lawfully ban employee solicitalio ad distrihution, even
during nonlworking time ill illlediate patient care
areassuch ias the patienlts' roollis, operating rooms, alld
placs whecre patieits recevce reatlmci it ball, ol that
activity i other areas to which patienlts alilt visitors ha e
access is invalid absenlt show ing by the hospital that
such it ball is necessary to avoid a disruption of palienll
care. St1. Johln s lopilal and School oj Nursing Inc. 222
NIl RB 115() (1976). See also Beth sraucl Iopltal v.
.VL.R.B., 437 U.S. 483 (1978); N.L.R.B. v. National
Jei/rs.h lompital & Recarch Center, 593 .2d 911 (10()th
Cir. 1978).
Applying these principles irst to the Conover incident
ill March 1977, 1 find that Respondent's conduct in pro-
hibitiiig tile SNA solicitationl and distribution arid ex-
pelling employees Mclilis and Rose was violative of
Seetion 8(a)(1) of the Act. Cono er prevented the em-
ployees from egaging in protected activity in what as
clearly a nolipatielt and onwork area " Members of the
public, visitors, and off-dtuty crrployees had free access
to aid congregatcd in the wvaiting lobby. Neither the so-
liciting employees nor those they were soliciting were on
worktinie. This as not an inlllediate patient-care area
aind was not prinlarily ta work area. Conover did not rely
on any precise rules either the handbook rule or the re-
vised rule; he did not cite a no-access rule; and there is
no evidence that one for off-duity employees was in exist-
ence at the time. He simply explained generally that Re-
spondent had a no-solicitation policy. lThere is no cvi-
dence that Conover, who did not testify. meintioned a
business reason for the prohibition or stated any concern
about interference with patient care. Indeed. it is likely-
since no eidence was offered that similar expulsions had
occurred i the past for other solicitations- that Con-
over's concern was thiat the solicitation oil this occasion
was for the Union. Accordingly, I find that Respondent's
conduct in preventing employee Mclnnis and Rose from
engaginig in union solicitation and distribution in the
waiting lobby in March 1977 arid expelling them from
the premises was violative of Section 8(a)( ) of the Act.
Respondent argues that it could properly prohibit em-
ployee solicitation because amolng those who used this
Rcspolldcl Ci(licl s th;t ihe rIploe es A crc pcrrnllttel to ,)]lcil
1 ile Cialclria. ilut Cioucr did inot ieiritIn tis .hlc he Cxpelled Rost
.i1d t\1c1i1ils froim Ile pirciicm
1)1:(']S]()NS (* NA I IONAL I ABOR RELA- IONS BOARD
FASTIFRN MAINE -MELDICA CN'NIIR
lobby were tile faimilies and relatives of patients at times
when there was an "overflow" from the surgery waiting
room and that these people should not be subjected to
solicitation. The argument is ithout merit. The waiting
lobby was not exclusively a patient-care area thus, under
the Board's St. John Ilospital decision, upra, Respond-
ent's argument does not amount to a significant business
justification to limit employee solicitation on behalf of
the Union. Contrary to Respondent. the availability of al-
ternative places for solicitation or means of communica-
tion is not a significant factor in the consideration of em-
ployee rather than non-employee solicitation rights.
Compare .L.R.B. v. he Babcock & Wilcox Company,
351 U.S. 105 (1956). Respondent also alleges that Mcn-
nis testified that she thought the waiting lobby w\as a pa-
tient-care area. This testimony was elicited in respronse to
leading questions from Respondent's counsel. Counsel's
questions suggested that Conover relied on a lawful rule
prohibiting solicitation in patient-care areas; the evidence
shows, however. that he asserted a broad no-solicitation
policy and did not mention a specific rule. McInnis testi-
fied that she did not believe she was doing anything
wrong and her response to counsel's questions simply
demonstrates that Conover did not purport to rely spe-
cifically on Respondent's revised no-solicitation rule. In
any event, Mclnnis' belief that she was soliciting in a pa-
tient care area or, more probably. her belief, in response
to a leading question, that Conover construed it to be a
patient-care area does not make it so.
About a week after the Mclnnis and Rose solicitation,
Respondent issued a weekly bulletin stating that employ-
ees were not to be on the hospital premises within a half
hour before starting time and no later than a half hour
after quitting time. It is settled law that a rule which
denies off-duty employees entry to outside nonworking
areas is invalid unless justified by valid business consider-
ations. Presbyterian Medical Center, 227 NLRB 904, 905
(1977). Any ambiguity is to be construed against the
party which promulgates the rule. Continental Bus
System, Inc., 229 NLRB 1262 (1977). Under this standard
the instant rule is unlawful. It does not limit access of
off-duty employees to interior working areas and there is
no evidence that the rule was clearly disseminated to all
employees. 20 In addition and apart from the above, in
view of its timing, I find that the rule w-as promulgated
to thwart off-duty union activity and not off-duty solici-
tation generally. No other explanation for the rule ap-
pears in the record. Accordingly, I find that the no-
access rule testified to by McInnis was promulgated and
maintained in violation of Section 8(a)( ) of the Act.
Respondent's handbook no-solicitation rule is admit-
tedly too broad insofar as it generally prohibits nonvwork-
ing time solicitation. Respondent argues that the rule was
effectively rescinded by the October 1975 revision. The
General Counsel disputes this. A bulletin announcing the
revision stated that the revised rule was being posted and
would be included in the regular updating of the hand-
book. The revised rule was also included in a updated
interdepartmental manual which was available to em-
z" Thc (onlI cvIdc cC onl this IS\1¢ I Ihc t lrlucontradicicd crtlnilrly of
Mcinnls Rc',pondenl offered no husine.s Ijuification fand 1no cvid'lnct ai
aII on thi[, , ILC
ployees. Although the Conover inciderit creates some
doubt as to whether Respondent itself knows the lawful
parameters of its no-solicitlation policies and there is no
specific evidence that the revised rule was actually
posted or the handbook revised, I accept Respondent's
representation that the broad rule is repealed and pres-
ently inoperative.
The 1975 revision- which is presently in effect-pro-
hihits employee solicitation "during work time, exclusive
of break time in non-work areas." The rule does not ex-
press a concern for patient-care areas. The first part of
the rule is lawful but the exception renders the rule un-
lawful because it suggests to employees that the only
permissible solicitation is that which takes place on break
time in nonwork areas. This is too broad a restriction
since it prohibits lawful nonxvork time solicitation in
work areas which are not immediate patient-care areas.
Indeed. in two subsequent announcements of the revised
rule. the term "break areas" was used instead of "work
areas," further limiting the area for lawful nonwork time
solicitation. Moreover, the exception prohibits solicita-
ltion at times other than breaktime such as lunch or rea-
sonable periods before and after work in permissible
areas. See Republic viation, supra, 324 U.S. at 803, fil.
10. Finally, though Conover did not purport to rely on
the revised rule in expelling employees Rose and Mclin-
nis, this incident raises doubts as to whether the revised
rule actually protects lavwful union solicitation. Thus, at
the very least, the exception renders the revised rule am-
biguous and an ambiguity is to be construed against the
author of the rule. In short, the no-solicitation rule is
broader than permissible under Board law and at the
very least is ambiguous in that it provides no clear indi-
cation that it conforms to the Board's criteria. The rule is
thus violative of Section 8(a)(l) of the Act. See N.L.R.B.
v. Florida Medical Centr, Inc,.. 576 F.2d 666 (5th Cir.
1978).
B. The Withheld General Wage Increase of April 1977
As shown by the evidence. Respondent granted gener-
al wage increases to all its employees except unit em-
ployees in April 1976 and again in April 1977. The Gen-
eral Counsel alleges that the withholding of the April
1977 wage increase, which was granted in the midst of
negotiations, from unit employees was violative of Sec-
tion 8(a)(3) and ( 1) of the Act. I agree.
It is conceded that the April 1977 wage increase was
not applied to the unit employees because of the fact that
Respondent was in negotiations with MSNA over their
wages. Director Brandow testified that the survey pre-
ceding the April 1977 raise included the nurses and that,
but for the representation of the nurses by MSNA in ne-
gotiations, he would have granted them increases. This
evidence establishes that Respondent's conduct in with-
holding wage increases from the unit employees in the
midst of bargaining, both in its forsecable consequences
and, in fact, discouraged union activity and support
within the meaning of Section 8(a)(3) and (1) of the Act.
The situation herein is comparable to that presented in
N. L.R.B. v. United Aircrafti Corporation. Hamilton Stand-
ard Division (Bran Filament Plant), 490 F.2d 1105 (2d
241
I) ECISI()NS O() NA FIONAL L.AHOR RATIONS H()ARI)
Cir. 1973), enfg. 199 NLRB 658 (1972). In that case, the
employer had announced he would grant a wage in-
crease on a specified date. The Court upheld the Board's
finding that such a promise constituted a condition of
employment and that the refusal of the employer to put
the "scheduled wage increase" into effect because, 4
days before, the employees had selected a union was "in-
herently destructive of important employee rights and
violative of Section 8(a)(l) and (3) without specific proof
of anti-union motivation," citing N.L.R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26 (1967). The Court went on to
reject the employer's defense that it was entitled to with-
hold the wage increase in order to improve its bargain-
ing position in the anticipated negotiations with the
union as not a "legitimate" business justification under
Great Dane, supra. As the Court stated, "[if] the Compa-
ny's position were accepted, an employer would appear
to be entitled, in the hope of improving his bargaining
position, to alter all conditions of employment after
union certification, reducing wages to the legal minimum
and allowing the work environment to deteriorate."
That, the Court stated, would have a "devasting impact"
on Section 7 rights. United Aircraft, supra at 1110.
Respondent's conduct here was much more injurious
to Section 7 rights than that portrayed in the United A.iir-
craft case and approaches the "devasting impact" charac-
terized by the Court's hypothetical.
First of all, the general wage increases of April 1976
and 1977 were as much conditions of employment for
the nurses as the promise of a wage increase in United
Aircraft. The evidence shows that in the preceding De-
cembers-as was its custom-Respondent conducted a
wage survey which led ultimately to wage increases for
all of its employees. This practice-a survey followed by
increases-was regular and periodic. It had taken place
at least annually over the past 8 years. Moreover, the
survey and the prospect of wage increases were an-
nounced to employees in December 1976. The eventual
decision was also announced to employees in March
1977 together with the actual amount of the increase.
The December 1976 survey announcement stated that
the survey was the "first step in determining the amount
of our next general wage increase." There was no doubt
in the announcement that there would be an increase as
there had been every other time a similar survey was an-
nounced or conducted. Director randow testified that
without the presence of the Union he would have grant-
ed increases to the unit employees both in April 1976
and in April 1977. Indeed, in January 1978, after MSNA
had been decertified, Respondent granted wage increases
of about 12 percent which, in effect, compensated the
nurses for their withheld wage increases of 1976 and
1977.21 In these circumstances, the practice was suffi-
ciently established so as to constitute a condition of em-
ployment. That the specific amount of the increase was
21 Respondent also granted he nlurses a gencrldl age increase in
March 1978 According to he testimonry of Johnlson the March 197X in-
crease provided a 5 6-percent raise for the nurses (above their 12-percent
raise) and 6h5 percent for the rest of he employees. Sillce this raise was
based on the December 1977 survey it is ohsious that. despile Respond-
ent's self-serviing explanations for the Januar increases, the tlallcr were tl
compensatl for the failure Ilo grant the 197h and 1977 incrcases
not fixed is not significant. Otis Hlospital, 222 NLRBI 4()2,
404, enfd. 545 F.2d 251. 255 (Ist Cir. 1976). See also
Allied Products Corporation Richard Brothers Division, 218
NLRB 1246, 1252 (1975), enforcement granted in part
548 F.2d 644 (6th Cir. 1977) (regular merit wage review
and/or increase program constitutes term and condition
of employment); The Leavenworth Times a Division of
Ihomson NVew.spaper. Inc., 234 NLRB 649 (1978); Plasti-
crafts. Inc., 234 NLRB 762 (1978). In the words of the
First Circuit, the survey announcement of December
1976 was an "unequivocal undertaking [which] amounted
to a promise" that became part of the "existing" terms
and conditions of employment. Ibid. See also .L.R.B. v.
Uinited .4ircraft, supra, 490 F.2d at 1109, and cases cited.
Respondent's reliance on Chevron Oil Company. Stand-
ard Oil Company of Texas Division v. N.L.R.B., 442 F.2d
1067 (5th Cir. 1971), declining to enforce 182 NLRB
445, is misplaced. In that case the employer's normal
policy had been to offer wage increases just negotiated
in its industrywide contract as proposals to organized
plants not covered by that contract and to grant such in-
creases to nonrepresented employees. It had conditioned
such a wage proposal to a newly organized unit upon ac-
ceptance of a broad management rights clause. The
Board found that the withholding of the wage increases
was unlawful in the circumstances of that case and that
the employer had bargained in bad faith. The Fifth Cir-
cuit disagreed and determined that the findings of bad-
Faith bargaining and unlawful motive were not supported
by substantial evidence. Both the Board and the Second
Circuit in United Aircrafi distinguished Chevron from that
case, and, since the facts herein are closer to United .4ir-
craft than to Chevron, those distinctions apply here. In
this case, unlike in Chevron, the employer altered a con-
dition of employment. Significantly, in Chevron, unlike
here, the employer offered in its initial bargaining pro-
posal to the local unit, the same increase it had withheld.
In the instant case the wage increase was, according to
past practice, an existing condition of employment, but
Respondent never specifically proposed the withheld
wage increases as a bargaining proposal. Its first contract
proposal had no wage proposal at all; its first economic
proposal-made sonicme 3 months after bargaining com-
menced-called for a 5-percent increase and its last pro-
posal-at a time when the nurses reasonably could have
expected an accumulated 12-percent increase-called
only for a 6-percent increase. Moreover, Respondent
never sought to make up to the nurses the amount of in-
crease they may have lost by the withheld general wage
increases even though the B01 recommend such a provi-
sion in March 1977. Indeed, Respondent took the posi-
tion that the BOI recommendation did not apply to the
withheld general increases and rejected outright an
MSNA proposal in May 1977 that it grant two 5-percent
increases to make up for the withheld 1976 and 1977 in-
creases. In short, Respondent's conduct precluded the
employees from ever recouping, through bargaining by
the Union, the losses which Respondent had imposed on
them for selecting it.
However, even if, under Chevron, there is a require-
ment that an inquiry be made into actual motive for the
242
EASTERN MAINE MEDICAL CEN ER
withholding of wage increases during negotiations, I find
that Respondent's motive here was to discourage uion
activities. 22 First of all, Respondent withheld the April
1976 wage increase which Brandow conceded he would
have granted to the nurses except that Respondent was
in a situation immediately after the election "where we
didn't know if we had a certification of election, or we
were in the pre-election period, or we were going into
negotiations." Inherent in this explanation was the idea
that it was the presence of the Union which made neces-
sary the exclusion of the nurses from the wage increase.
See Electri-FIex Company v. N.L.R.B., 570 F.2d 1327,
1335 (7th Cir. 1978). The announcement of Respondent's
action came I day after the election which was won by
MSNA. Respondent filed objections and the certification
did not issue until May 1976. Respondent never specifi-
cally offered this withheld increase to MSNA in bargain-
ing. Indeed, Respondent made no wage offer to MSNA
on behalf of the nurses until late January 1977 when it
offered a 5-percent increase upon the signing of a con-
tract. There was no evidence that this was the equivalent
of the withheld increase and it was never represented as
such in negotiations. Any argument that Respondent
found itself in a dilemma over whether to grant the in-
crease or not because of the presence of the Union is
specious. The general rule is that an employer must pro-
ceed in these situations "as he would have done had the
union not been on the scene" (The Gates Rubber Compa-
ny, 182 NLRB 95 (1970)) and he violates the Act if he
does not. Plasticrafts, Inc., 234 NLRB 762 (1978); Thur-
ston Motor Lines Inc., 237 NLRB 498 (1978). This applies
as well to the period during which objections to an elec-
tion are pending. Marine World USA, 236 NLRB 89
(1978). Moreover, in December 1976 the MSNA notified
Respondent that it had just learned of the wage increase
and made quite clear that it would not file unfair labor
practices if Respondent granted the increase to the
nurses. Thus, it is clear that the April 1976 wage increase
was discriminatorily withheld to discourage union activi-
ty and, although the legality of the 1976 increase is not
before me because it was not specifically alleged and
such a finding is barred by Section 10(b) of the Act, the
evidence of unlawful motive surrounding the withhold-
ing of the increase is highly probative to shed light on
Respondent's motive in withholding the 1977 increase
and its cast of mind in subsequent negotiations with
MSNA.
Further. Respondent, throughout the period, demon-
strated an anti-union hostility as shown by Moreshead's
coercive interrogation of nurse applicants; Conover's un-
lawful interference with MSNA solicitations in March of
2' In (herrn,,. he Hloard ite Sh ell (',, 77 Nt.RH 1306 (1948), for
the proposilloi that, ahbsent proof of unrlaI ful niive, an employer may
withhold v.lage Increases tl untl emnlphoyree pro,ided it hargains in good
faith This pilciple as apparently fashioned prior to and withoul con
sideralion of he hroiadenred lontirln of "inherently destructlse" conduct
which presumes unlav ful nlotlC under Suprtme Court cases culnallllilllg
In the (;inru/ )ia, dclslimn 1o he cxteren thia ('hlmro and Sh,'ll Oil can
he read to deal ,ith altered conlditlins of employment they d nriot lake
into account he (;reat Dull, decisionl and appeal Ito he i conlict i:lth
'nited Aircra.ft I his apparnlt conflict is insignificant in this case hecauset
I find Respondent's conducl both Iiherrentl destrucli:e Ilunder Ilited
ittr ral/ and unai s full) nil .iitd undte r ( i, mri
1977; and its unlawfully broad no-solicitation and no-
access rules. The plethora of announcements of new
benefits throughout the period of negotiations makes
quite clear that Respondent undertook a campaign to
highlight new benefits for nonrepresented employees and
to emphasize that the benefits were being withheld from
unit employees. Combined with its bargaining positions,
discussed more fully infa, and its failure to even make a
wage offer until January 1977 the withholding of the
April 1977 wage increase made clear to employees that
their selection of the Union resulted in loss of benefits
they would otherwise have received. Indeed, by the end
of negotiations in June 1977 two wage increases had
been withheld from the nurses because they had selected
the Union and Respondent had only offered an increase
of about 6 percent to the MSNA-a figure well under
what the nurses would have received had they not se-
lected the Union.
They had not received a general wage increase since
August 1975 shortly after MSNA started organizing the
nurses. Only after bargaining had broken down and the
MSNA was decertified did Respondent grant increases
to the nurses. Respondent's alleged concern that granting
wage increases would affect employee rights apparently
dissipated at this point even though objections were
pending to the decertification election at the time. Thus,
the motive for Respondent's conduct is not only estab-
lished by Brandow's explanation for withholding the
April 1977 wage increases (see Electri-Flex v. AL.R.B..
supra, 570 F.2d at 1335), but is reinforced by Respond-
ent's overall conduct toward the MSNA-represented em-
ployees.
In these circumstances, I find and conclude that Re-
spondent's actual motive in withholding the April 1977
wage increases from MSNA-represented employees was
to dissipate union support and discourage union activity
in violation of Section 8(a)(3) and () of the Act. See
KDEN Broadcasting Company, a wholly owned subsidiary
of North American Broadcasting Comnpany, Inc., 225
NLRB 25, 26 (1976).2:
C. The Failure To Bargain in Good Faith
The General Counsel also presents the issue of wheth-
er Respondent violated the Act by failing to bargain in
good faith. I agree with the General Counsel that Re-
spoident's conduct constitutes a violation of Section
8(a)(5) and (1) of the Act.
The applicable principles were cogently stated by Ad-
ministrative I.aw Judge Itkin in The Adrian Daily Tele'-
gram a Division of Tompson Newspapers, Inc.. 214 NLRB
1103, 1110-11 (1974):
Section 8(a)(5) of the Natienal Labor Relations
Act makes it an unfair labor practice for an employ-
er "to refuse to bargain collectively with the repre-
sentatives of his employees...." Section 8(d) pro-
vides that "to bargain collectively is the perform-
ance of the mutual obligation of the employer and
the representative of the employees to meet at rea-
' I IS. of cotullrse. irlsignificalnl that Brandou' s condtid l t a, baseld o1n
d\ ice of couInse I See Ot Ilpial 222 N RB 4()2. 403 405 1976)
243
I)ECISIONS ()F NAI()ONAL l.ABOR RLATIONS 1OARD
sonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of
employment...." In ANL.R.B. v. Insurance Agent.s'
Union, 361 U.S. 477, 485 (1960), the Supreme Court
recognized that "[c]ollective bargaining . . . is not
simply an occasion for purely formal meetings be-
tween management and labor, while each maintains
an attitude of 'take it or leave it'; it presupposes a
desire to reach ultimate agreement, to enter into a
collective bargaining contract"; though "the parties
need not contract on any specific terms . . . they
are bound to deal with each other in a serious at-
tempt to resolve differences and reach a common
ground." And see, Cox, The Duty To Bargain In
Good Faith, 71 Harv. L. Rev. 1401, 1411 (1958).
Similarly, in :V.L.R.B. v. Katz, 369 U.S. 736, 747
(1962), the Supreme Court held that the parties
must refrain not only from behavior "which reflects
a cast of mind against reaching agreement," but
from behavior "which is in effect a refusal to nego-
tiate, or which directly obstructs or inhibits the
actual process of discussion." In sum, as the court
of appeals stated in N.L.R.B. v. General Electric
Company, 418 F.2d 736, 762 (2d Cir. 1969), cert.
denied 397 U.S. 965, enfg. 150 NLRB 192 (1964):
[T]he statute clearly contemplates that to the end
of encouraging productive bargaining, the parties
must make "a serious attempt to resolve differ-
ences and reach a common ground," N.L.R.B. v.
Insurance Agents' Int'l Union, 361 U.S. 477, 486,
487, 488 (1960), an effort inconsistent with a
"predetermined resolve not to budge from an ini-
tial position." N.L.R.B. v. Truitt Mfg. Co., 351
U.S. 149, 154-155 (1956) (Frankfurter, J., concur-
ring).
A pattern of conduct by which one party makes
it virtually impossible for him to respond to the
other-knowing that he is doing so deliberately-
should be condemned by the same rationale that
prohibits "going through the motions" with a
predetermined resolve not to budge from an ini-
tial decision." See A.L.R.B. v. Truitt Manufactur-
ing. Co., supra (concurring opinion).
The parties to collective bargaining are "required to
do something more than attend purely formal meetings
constituting no more than a mere pretense at negotia-
tion." N. L.R.B. v. Pine Nursing Home, Inc., 578 F.2d 525
(5th Cir 1978). "The mere willingness of one party in the
negotiations to enter into a contract of his own composi-
tion . . . does not satisfy the good-faith bargaining re-
quirement." Wal-Lite Division of the United States
Gypsum Co., 200 NLRB 1098, 1101 (1972). Moreover,
while there is no requirement that any party agree to
specific contract proposals, the Board may consider the
"reasonableness of positions taken by an employer in the
course of bargaining in negotiations." NV.L.R.B. v. Reed
& Prince Manufacturing Company, 205 F.2d 131, 134 (Ist
Cir. 1953), cert. denied 346 U.S. 887 (1954). Thus, the
Board must determine whether a party showed a willing-
ness to "approach the bargaining table with an open
mind and a purpose to reach an agreement consistent
with the respective rights of the parties." L. L. Majure
Transport Company v. NA.L.R.B., 198 F.2d 735, 739 (5th
Cir. 1952). Ultimately, according to the First Circuit, the
question whether a party "conducted its bargaining ne-
gotiations in good faith involves a finding of motive or
state of mind which can only be inferred from circum-
stantial evidence." V.L.R.B. v. Reed & Prince, supra, 205
F.2d at 139-140. And see Chevron Oil Company, supra,
182 NLRB at 445.
Applying these principles to the instant case, I find
that at all times material, more specifically, after March
1, 1977,24 Respondent failed to bargain in good faith and
instead bargained with a determination not to reach an
agreement and to undermine and destroy the Union as
bargaining representative.
The discussion in part B, supra, clearly supports the in-
ference that Respondent's conduct in withholding the
April 1977 wage increases not only violated Section
8(a)(3) and (1) of the Act but also Section 8(a)(5) and (1),
for it was evidence not only of Respondent's intent to
discourage union support but also of its cast of mind
against reaching agreement with MSNA and to destroy
it as the bargaining representative of the nurses. See
Chevron Oil Company, supra.
The discriminatory withholding of the April 1977
wage increases was central to Respondent's strategy to
frustrate reaching agreement. Thus, Respondent withheld
general wage increases from bargaining unit employees
from August 1975 until early 1978, throughout the
period of the MSNA campaign and the succeeding nego-
tiations. Respondent delayed making any economic offer
until late January, 1976:10 months after MSNAs election
victory; 5 months after receiving the Union's first eco-
nomic proposal; and 3 months after bargaining com-
menced and only after a Federal mediator entered the
negotiations. During this period, Respondent refused
even to discuss economic issues until there was resolu-
tion of noneconomic matters.
Even when Respondent made an economic proposal
on wages, it was less than the unit employees would
have received had they not selected the Union. The
Union's final wage proposal in June 1977-a 6-percent
general increase from August 1975 wage scales-was
half as great a general wage increase as the employees
would have received had they not selected the Union.
Wage increases for 1976 and 1977 would have brought
about a general wage increase of about 12 percent. This
is based on what the nurses received in January 1978 and
what nonunit employees received in 1976 and 1977, even
considering that the nurses might have received less of a
"4 The first charge in the Instant case was filed on September 1. 1977
MN findings relate to events and bargaining positions taken after March
i. 1977. but I have considered events and bargaining positions taken
befotre that date to shed light on conduct occurring after that date See
Local L.odgie 1424. International Aoctation of Marchin:t, AL.-(CIO0 and
Inerzr nal -ul a .,socialion oj Muachnisr .4AlL-CIO ryan AManufacturing
(Co. s I..R.B., 362 US. 411. 416 417 (190h) Crysl Springs Shirt Cor-
poruation 229 NRIB 4, 7 (1977) The Leave.nworth ime., supra, 234
NlRBl 6h49
244
tISI RN MAINI! 'VI)IiCAI (IN I R
percentage increase thanl the nonunl1it enlploees. More-
over, Respondent never gave MSNA tile opportunitli to
recoup the discriminaltoril? wit hheld .~ age increases in
bargaining. MIorrell's response to MSNA's attempt to
bargain over the 13()I recommlnlclldationl for retroactive
paymients s ;as to quibble over the meanin g of the rcol-
mendalionl and to argue that since the nurses had been
given merit increases after August 1975 there had heen
no loss of "quity"' wlithll the maning of the 10()1 rec-
ommendation. The lnguage of the recommenldation,
however. leaves no room for doubt thlat it referred to
"across the hoard increases." In these circumstances, I
find that Rcsponldcnt's hargaining position o wvages is
evidence of its failure to hargain il good faith.25
In addition. Responden t withheld fringe benefit il-
creases from unit emploces and prominetntly annouliced
these increases as well as the April 1977 wage increases
in nmelloranda to all emploeecs with the pointed remind-
er that the unit employees were excluded because theyic
were bargaining ifor their benefits. 2; The April I. 1 77.
memorandum recapped the recently enacted benefits anid
labeled this action "part of our continuing planl to keep
us equal to or better thatn community levels." The mes-
sage was clear that employees could gain more from Re-
spondent \wilhout a unioin than they could by bargaining
through it union. Conversely. Respoident hamimered
home the point that the nurses were being denied bene-
fits because they had chosen to bargain through MSNA.
This conduct reflects Respondent's hostility toward bar-
gaining in good faith.
Thus, Respondent discriminatorily withheld wage in-
creases from unit employees and publicized the with-
holding of benefits while at the same time offering a
lower wage increase than the employees would have re-
ceived had they not selected a union and refused to con-
sider a retroactive payment of the withheld wage in-
crease in bargaining. Moreover, as shown below, Re-
spondent's -percent wage increase offer was conditioned
upon the acceptanc e of the rest of Respondent's econom-
ic proposals. In composite, these positions, taken by Re-
spondent. narrowed the bargainable issues to such an
extent that bargaining on economic matters was virtually
nonexistent.
'5 Respondent asserts thai, on Ma 13,. MSNA was arguing for
"double rclroaciivits" inslcad of lthe "one tmne pnlclll eisiolmed hb
the BOt recmltlcendaion Of course h then, Respondent had ilplc-
mcnlted a cltld general illcrease which sals sithheld fronm lllt cnplo
ces MSNA imply ask d; fr 5 prcint lir te wilihhelid 176 increalse
and 5 percelt flr he ,*thheld 1977 increase-an amount less hani the
12-percent increase granted il Januar 19'78
2' Respondent's economic proposal on fringe hencefits 'was l lmt,
lower than what the nlurses Iiould hase recei'ed had hey not chosen
MSNA For Ceanlple, i D)ecemher 176 Respondent announced a Itt)-
percent increase ill hfe insurance, effective Januar, . 11977. for all em-
ployees ecept the nurses, from 54.(XX Ito 8.(XX) he nurses had not re-
cered an earlier Itncrease from S2.(XX) to 4.XX) Respondent had inot
even made an ecinrlomnic proposal to MSNA and the first proposal did n1t
even brinig the ilurse up It tIhe insurance henetils they ws uld hase re-
ceived hut I;fr hax in, selected Ihe Unioln The 1 ing term disabil it hbeltcti
alnnounced i l'ehru lar 1I77 for nonlulil employees did nlt filld its ,ia 51
into an economic proposal to MSNA until the BO()I hearings i in ii
March 177 And the S1 mlillion liahilt. ILnsurance henefit first appeaired
In he same economic proposal even thoiugh il hd beerl firstl anllrlluiced
for nonlnlii enplo!tce hback in March 1'7h
Indeed, after March 1, 1977. Respontdent look the po-
sitioni thlt it ould not seriously inegotiate oil economic
issues ittil itinellenolomic issues were resolved t its satis-
faction. In its submissiuon to the 13()01 i March 1977, Re-
spndttiet stated that if its nonecoollnic proposals ,Acrc
"accepted uhslantially ill their present orm." it " l
he prepared to imo e into serious discussions of lie co-
niliic pa;ckagc. The clear implication is that i the ah-
seneI of sbstantial acceptance h NISNA of its none-
coonic proposals Respondent \kould nl01 undertake "''se-
rious discussionis of tie ecornomic package Indeed. Re-
sponidetlt's June 177 ecotnomic proposal, made aifter
decertification petititio had behen filed, as conlditioned
upont acceptailce of its nolleconornic pr(posal of tat
fldal an;d acceptane;l of the economic proposal ;i ;a pack-
age. This was different roml earlier ;laugage thit eco-
noiit ics proposals were condition ed upon agree ilent oil
the nonleconomic issues. It represenited a hardenllig of
Respondelt's position and meanit that MSNA had to
accept a lo , er age increase ad the salme fringe be-ll-
fits the unit employees would have rccic d oilthout a
union and it had to accept this s a package along iti
Respondent's nolneconomic proposal.2
Respondent's position clearly precluded bargalilig oni
economic issues for the economic proposal had to be ac-
cepted as a package; there was no room for tentative
agreements on individual economic issues. his Aas little
different than Respondent's position prior to January 2.
1977, that it would not even discuss t econonmic issues
until the noneconomic issues were resol'ed. Respond-
enlt's position as taken vithout the acquiescenice of the
MSNA; and, even by its on witticsses' tstinlony, after
November 4, 1976, there was no aquiescence. This posi-
tion was clearl a indication of bad-faith bargaining and
sheds light on its subsequent bargaining position after
March 1, 1977. In view of Respondent's earlier position,
it is obvious that Respondent refused to even consider
reaching tentative agreements on economic matters until
either resolution of the noneconomic issues or accept-
ance of its noneconlomic proposal. Such an intransigent
position is strong evidence of a cast of mind against
reaching agreement See The Adrian Daily Teelegram. a
Division of' lTorpson Newspapers. Inc. 214 NLRB 110)3
(1974). For [bjargaining does not take place in isolation
and a proposal on one point serves as leverage for posi-
tions in other areas." Korn Industries Inc. v .VL.R.B.,
389 F.2d 117, 121 (4th Cir. 1967). By postponing eco-
nomic bargaining to the end of negotiations, an employer
"reduce[s] the flexibility of collective bargaining. [and]
narrow[s] the range of possible compromises with the
result of'... rigidly and unreasonably fragienlting the
negotiations . . "'N.L.R.B. v, Patent Trader. In., 415
F.2d 190, 198 (2d Cir. 1969).
Even on noneconomic issues, Respondent's position
was inflexible. It rigidly insisted-from the beginning of
negotiations to the end-upon a broad management
7 tc assumlng rul h M rr th the t t f ir ells testinun at lie lsubstallt,
and illl of ttt Junll 1977 colnditioin as Itl he anle ai thal iI eaarlier pro-
posl]. RKepndcrt', ploill t1,s idence of had fatllh or it suggests
that R poindtnl i all tines cllnditiolled its L'ecot n111u p riposal upon ac
tcepal" .o , It, ncItilniC propasil
245
I)t(ISI()NS (I NAI I)NAI IAB()R R AIIONS O ARRI)
rights clause and filnality clause as the price for any
agreement reached. This position, when considered to-
gether with Respondent's other bargaining positions, ex-
hibited a desire to undermine the Union and to avoid any
meaningful final agreement. It is uncontestcd that Re-
spondent never changed its ma nagem cnt rights propo sal
or its finality proposal, even though the B()I recom-
mended the MSNA management rights proposal an d, at
one point, MSNA offered to accept the finality clause if
Respondent agreed to its management rights clause. It is
also uncontested that, although there were tentative
agreements o i specific noneconom ic issues, Respondent's
fial agreement, even as to noneconomic maltters, was
conditioncd uponl the MSNA's acceptance of the man-
agemenlt rights clause and the finality cla llsce.
The insistence upon the two contested clauses inl Re-
spondenit's last noneconomic proposal i June 1977, even
with tentatively agreed-upon nonecolomic provisions
more severely restricted MSNA's bargaining rights than
the management rights and finality clauses would by
themselves or as a pair. The management rights clause
herein was broad and extremely detailed, spelling out
management control over almost all aspects of the em-
ployment relationship and it permitted unilateral action
on a detailed set of orking conditions. Even though ex-
pressly limited by the specific obligations set forth in the
proposed agreement rigid adherence to this clause as ap-
plied to matters not covered in the agreement and il
conjunction with other provisions in Respondent's pro-
posals was evidence of Respondent's unwillingness to
bargain in good faith. See Stuart Radiator Core ManuJac-
turing Co.. Inc, 173 NLRB 125 (1968). In the finality
clause Respondent sought the MSNA's waiver of bar-
gaining rights during the term of the agreement over
"any subject or matter not specifically referred to or
covered in this Agreement." This, of course, precluded
bargaining during the term of the contract not only over
matters not specifically covered in the agreement but
also matters which had never been discussed in negotia-
tions. As to the latter a union is not thought to waive the
right to bargain unless the matter is "fully discussed" and
the union has "consciously yielded" its position. Proctor
ManuJacturing Corporation, 131 NRB 1166, 1167 (1968).
Such matters could not be effectively handled through
the grievance-arbitration provision because grievances
were limited to complaints involving interpretation of
contract language and provisions. The arbitrator was
prohibited from even considering a term or condition of
employment "not expressly set forth within the provi-
sions" of the contract. Furthermore, there was a prohibi-
tion against the right to strike during the term of the
,~ Resplliden argles in its hrief that the MSNA nllaiageienlt rights
proposal wals, in substlauce, little differclt thanl its ou l I sO 111a1 I (
nlt pass on the matter this simlply conlfirlms Respolltlcli's nitrailsigeince
and cast oif mind against realhing agreement fI it refused to agree tol the
MSNA clause even tenatively or in exchange fior the MSNA', agree-
ment toI Respondent's finality clause Ilo tIhe extlct that Respondenll
argues tIht because MSNA tentatively accepted sorie ldf its prlopiisals. II
is ahbsoled of a bad-faith bargaiing charge. Responldetit is mistlakel A
uniin does not "waive" refusal tol hbtrgain charges by signiig ip for Ihe
best deal it can obhtain ad conitiliitig io make all effort to reach agree
ment. General Electric Ctomponn Buttertr Products (porutor Department
NL' R. B.. 400 F.2d 713, 727 (5th Cir 1968) cert deiedl 94 I S.1 904
(1969).
contract. Ihus. i view of the broad matters committed
to managerial discretion and excluded from bargaining
MSNA and tie mployees it represented would be better
off without a contract because, without a contract,
MSNA would at least have certain statutory rights to ad-
vance consultation and bargaining before Respondent im-
plemert ecd changes in w orking conditiotis as well as the
right to grieve and to strike if lMSNA did niot agree to
the changes. 'o this extent rigid adherence by Respond-
ent to its management rights anrid finality clauses, inl the
context of its entire bargaining coduct, forced the
waiver f statutory rights and as evidence of bad faith
bargainilg. See Chcevron Oil Co.. upra, 182 NLRB at
447 S Isabel Electric Srrwc s, Ic.. 225 A'NLR 1073.
1080( (1976) (Crystal Sprong Shir (Corporatlion. 229
NI.R 4 (1977); "/ " .S'.slel, . Inc. lobile lomec Divivion
N4id-States Corporation 1 29 NIRB 527, 550 551
(1960).29
Other pieces of evidence involving incidents which
took place early in bargaining, prior to the beginning of
the 10(b) period, some ininocent, in end of themselves,
but revealing in conposite when considered with other
evidence herein, also shed light o Respondent's cast of
mind against reaching agreement in the period after
March 1, 1977. There is evidence that MSNA repre-
sentatives several times asked for inisurance information
but that Respondent while promising the data did not
provide the information at least as of January 5, 1977.
TIhere is no evidence that Respondent thereafter pro-
tided the information. Providing such information is, of
course, an essential bargaining requirement. See Sylvania
Electric Product.s Inc., 154 NLRB 1756 (1965), enfd 358
F.2d 591. 592 (st Cir. 1966hh). Indeed, according to the
December 1976 letter from Nancy Chandler MSNA was
not even consulted or given the opportunity to bargain
over the withholding of the April 1976 wage increase--a
clear change in working conditions; this too was a es-
sential bargaining requirement. See 4llied Products Corp..
supra, 218 NLRB at 1252 53. Malcomb Morrell, the
chief management negotiator, refused to meet il back-to-
back sessions with MSNA officials even though the chief
union negotiator had to travel to Bangor from Kansas
City. Morrell refused the MSNA requests to meet fre-
quently because of his busy schedule and took the posi-
tion that he would not meet for longer hours or have
more meetings unless he determined that satisfactory
progress was being made. Morrell also unilaterally can-
-' IHe case prilimarily relied orn hy Respondent t t Justlly Its unctullpro-
itlising positilno t)rl thiese tIwo clauses is distinguishable I1 Long Luke
.umber Co.. s82 N R 435 (17(), the IBard ieed nlv the anage-
menit rights clause and flutd, unlike here, that there as iti other vi-
derice ofI' bad-faith bargaining and that ithe employer, i light of its 30-
year hargairing histtory. as vAilling t agree, as II had in tie past. i a
cilmprehensive c de gloverning cnipllyce sages and cnditions. Mre-
,iver, the union was free i grieve aid to strike uder the contract ver
matters ver hilch thie emplyer slmught onl initial cointrol Indeed, that
management rights proposal vs,)uld nrlot hace precluded future bargaininig
because it was nt a broad is tlie chluse herein and it was rlolt elombined
vith a finality clauise anld ther restrictive clauses See alsol San
Isabel.
supra Moreover, i the ilstalit :ase, there is mnuch oilther evidence of bad-
faith bargaiinig including Respondent's discriminat. ry vithholding
of
geeral i age increases during legotitations and the cnditiilnal aspect of'
its eIolnic prpi sal
246
EASTERN MAINE NMtI)ICAI. CNTER
celled the December bargaining session on short notice
with a curt comment, "due to unexpected circum-
stances." As a result there were no meetings for some 6
weeks. Iater, after the intervention of the Federal miedi-
ator and the 1301, Morrell utilized an associate in his la\w
firm to act i his stead when he was unavailable aid
there were, of course, more frequent meetings. et he did
not utilize this approach in the early bargaining. In coll-
junction with Respondelnt's delay in making an econoniic
proposal, this colnduct shows that Morrell insisted oin a
unilaterally determined bargaining procedure and exhibit-
ed a lack of interest in meeting With MSNA in a deliber-
ate effort to stretch out negotiations. Collective-bargain-
ing negotiations are entitled the importance and attention
of any other business affairs (Lawrence lcxtrile Shrinking
Co.. Inc., 235 NLRB 1178 (1978). and Respondent's re-
strictions during the period between October 1976 and
January 1977 delayed the effective start of negotiations
and undoubtedly infected the entire bargaining process.
See "M" SYstem nv; ic., supra, 129 NLRB at 550, fn. 27.
In view of all of the above, Respondent's conduct
throughout negotiations, but particularly after March
1977, evidenced an intent not to bargain in good faith
and indeed to undermine and destroy MSNA as bargain-
ing representative of the nurses. This record demon-
strates the classic case of an employer who is prepared
"to sit [at a bargaining table] almost forever . .. to make
concessions here and there . . . [as a] means by which to
conceal a purposeful strategy to make bargaining futile
or fail." N.L.RB. v. Herman Sau.suge Company. Inc.. 275
F.2d 229, 232 (5th Cir. 1960). Accordingly I find and
conclude that Respondent violated Section 8(a)(5) aid
(1) of the Act.
D. The Representation Case and the Unilateral WUage
and Benefit Increases
As set forth above I have found that Respondent
committed violations of the Act which continued to the
time of the decertification election. Two of the objec-
tions, objection I, involving the withheld wage increases,
and Objection Ill, involving the broad no-solicitation
rule were encompassed in the unfair labor practice find-
ings. The withheld wage increase was first announced
well before the filing date of the decertification petition,
May 31, 1977, and thus would not constitute grounds for
setting aside the election. See Ideal Electric and Manufac-
turing Company, 134 NLRB 1275 (1961). However, the
existence of the broad no-solicitation rule at the time of
the election is sufficient to sustain Objection Ill. See
Grundy Hospital, Inc., 210 NLRB 1, 2 (1974). Moreover,
my findings concerning Respondent's failure to bargain
in good faith, exemplified in part by bargaining positions
taken on June 22, 1977-after the filing of the decertifi-
cation petition, would also provide grounds for setting
aside the election. Cf. .ltnerican Safety Equipment Corpo-
ration, 234 NLRB 501 (1978). Accordingly, I find and
conclude that Respondent's misconduct interfered with a
free and fair election and that the election of July 28.
1977, should be set aside and the representation case
should be dismissed. " )
I further find that, as of January and March 1978.
MSNA still represented the nurses and, consequently
Respondent's unilaterally imposed w\age and benefit in-
creases at these times were unlawful. An employer's im-
plementation of its last wage proposal in the absence of a
legitimate impasse is violative of Section 8(a)(5) and (1)
(of the Act. Yamo Woodcraft. Inc. dh/a Cal-Pacific ur-
nilure MJi. Co.. 228 NI.RB 1337, fn 1 (1077). And "it is
manifest that there can be no legally cognizable impasse,
i.e. a deadlock in negotiations which justifies unilateral
action, if a cause of the deadlock is the failure of one of
the parties to bargain in good faith." Industrial Union C
lMarinc and Shiphuilding Workers of .4merica. .4FL-CIO
v N. L.R.B. 320 F.2d 615, 621 (3d Cir 1963). In views of
my findings set forth above there %v as no impasse in this
case and thus Respondent's conduct was violative of
Section 8(a)(5) and (I) of the Act. Even though this
matter was not specifically alleged in the complaint it
was fully litigated and fell within the general scope of
the refusal to bargain allegations of the complaint. See
Erich R. iebher and Bernadine T7 Weher, Co-Partners d/
h/a Wehbers BakHery 211 NLRB 1, 14 (1974).
CONCI.USIONS 01r LAW
1. By virtue of gaining representation rights in a Board
conducted election on March 18. 1976, and being certi-
fied by the Board on May 26. 1976, MSNA was, at all
material times, and is at present, the exclusive bargaining
representative for all employees in the appropriate unit
below for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
2. The following constitutes a unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time general duty
nurses (staff RN's) employed by the Employer at its
Bangor, Maine Medical Center locations, including
nurse anesthetists and all instructors and assistant in-
structors at the School of Nursing; but excluding
employee education instructors, supervisors, assist-
ant supervisors, head nurses I and II, guards, all
other supervisors as defined in the Act, and all
other employees.
3. By discriminatorily withholding w\age increases
from bargaining unit employees on and after April 3,
1977, Respondent violated Section 8(a)(3) and (1) of the
Act.
4. By the conduct set forth above and by failing to
bergain in good faith, since March 1, 1977, with MSNA,
Respondent has violated Section 8(a)(5) and (1) of the
Act.
5. By unilaterally granting wage and benefit increases
to bargaining unit employees in January and March 1978
:" I do not reach he further isuc, presented bhO ()hjccciln II. If
,heher Respondenl als, Imlproperly inlerfered ith ice lccltiln bN
pil. ng or t trilll riporaltii (If soni cmplosec, fronm their X acalillu
back I llilogmr Malif, to oi l iIn the election
247
I)t'lISI()NS OF) NA'I()NAI IAB)R RA''lIONS B)ARI)
without notifying and consulting with their bargaining
representative Respondenit violated Section 8(a)(5) and
(I) of the Act."l
6. y interrogating employee applicants, by intcrfcring
with employee solicitation for union purposes on non-
work time in nonlwork, nionpatient areas and by mainlain-
ing overly broad no-solicitation and no-access rules, Re-
spondent t has interfcred %with, coerced, and restrained em-
ployes in the exercise of their Section 7 rights in viola-
tion of Section 8(a)( ) of the Act.
7. I'he unfair labor practices found above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
8. The decertification election in Case I-RD-888 is set
aside and the petition in that case is dismissed.
9. The Respondent has not otherwise violated the Act.
TIrlE RtMNt)iY
Having fou)nd that Respondent has engaged in certain
unfair labor practices I shall recommend that Respondent
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the purposes of
the Act, including the posting of appropriate notices and
bargaining with MSNA in good faith. 2
Since Respondent has been found to have discrimina-
torily withheld wage increases to which bargaining unit
employees were entitled and would have rcccived but
for Respondent's discrimination, I shall recommend that
each of the affected employees be reimbursed for the in-
creases they would have received from April 3, 1977, to
the present by payment to them of the difference be-
tween their actual wages and the wsages they would have
received had the increases been granted to them in the
manner testified to by Director randow and granted to
the other unrepresented employees in order to return
these employees to the status quo ante. The amount shall
be computed on a quarterly bsis in the manner set forth
in 41lied Products Corp., 218 NLRI3 1246 (1975), and '
W. Woolworth Comnpany, 90 NLRB 289 (1950), with in-
terest thereon to be computed in the manner set forth in
Florida Steel Corporation, 231 NLRI3 651 (1977)i'
:" Nolhing in this l)ccisiun or ()rder shall hb c nstrued s rqirlnig
Respondetill Io rescind iany such hetlfils
Ia" Curiously, Respolldcn argues al leilglh againl inliptriion of il har-
gallinig rilr by citilg anld discussing . RI v (;i / I'twkin/ Co.)
Inc. 35 t S 575 (19751. alld is protgen I hest cascs are clcirl appi-
ite fir Ii', bargainiing tbligatit iarise h5 irtie of a Board certifilatiOi
ad rllilains itt ill eca e t Respo ildl Cl' s failutrte to ibitde h il siatI-
itry dul1 baI hirgai Il good falith I hc bargaiillg order rmcedy is lot
hased on arl assessllnt of lihelher a car-d Iliatoril) is a better illdicatlr or
free cholice Iehai i anc 1,i thaird cllecion, but raltlher R ,pordcni's failurc
to hbargali l and oilt r eulduct prilol li the dItcerTrlil-cain (cleclilrl licjl
1as el aside becal'c;l of R espoidcplleIi niiscollli CL t Itled. i l usuai l lil
such cases oii e' enid I l crt'ltifiica;ll ll year to IIlake up for ile ptrliod cll1-
sumed hb an; elploetr's failure to hargain in geood faith Se Southil Itwlwr
losppttul, I't) Nl RB 1077, 1088 (1t 977), ad .ar J, /'outr ( In, 136
NL.RB 785. 787 (lth2)
tn [ii rgardl, tlite ( .harging Party alid li (nicrail ((rilsel rge tili l
extend the ccrificatiiill sear I shall iit recollnCllid thi renietl. li . -
er, silce Rspondent's refusal 1I1 bargain d1atid froitj March 1. 1977. h
months before the irst unfair lhor pracltlc harge and Ihis flls aiilr t
at te end of tile rigillal crtiilttiInl yCear C(iseqiuerlilh h hargaining
obligalio iposed hrein sha.ill h a general ne t extend tit a reisti
able perIol ill I hch it Call h giveii a fair chliance io sicecd /rUlAi
lBro (C ompue, s 1. R., 321 i S 7)2. 75 19441
a Set gnerall. ili 'll utilitr & tlcaling (o., 13s NIRII 716 1 1962)
As I have indicated, in January 1978. the bargaining
unit employees receiv ed a wage increase of about 12 per-
cciit over their August 1975 wage scale. While this
might have tolled some backpay liability, I leave resolu-
tion of this issue to the compliance phase of the case. Re-
spondent's action simply confirms that but for the dis-
rinmination which occurred in April 1977 the employees
would have received wage increases which other unre-
presented employees were receiving on April 3., 1977.
See .illied Products Corp.. supra: Chevron Oil Co., supra,
182 NLRI3 at 450-451; and roavis Meat & Scabod Corn-
pany., Inc., 237 NLRB 213, fn. 2 (1978).
In view of the devasting impact of Respondent's delib-
erate violations on employee rights, which led inevitably
to the decertification of MSNA, and the creation of an
atmosphere at the Medical Center, which becomes more
permanent with the passage of time, that Respondent has
successfully repulsed MSNA under the guise of having
bargained fairly with it;: 4 and also in view of the evi-
dence (pra, fi. 3) that a resolution to suspend new col-
lective-bargaining activities throughout the State of
Maine was caused in part by Respondent's apparent suc-
cess-by its unlawful conduct-in ridding itself of
MSNA as bargaining representative, I deem it absolutely
necessary in order to recreate the vtacru quo ante to rec-
ommend the following additional remedies in this case:
1. In order to fully dissipate the effects of Respond-
ent's widespread and flagrant interference with employee
rights and in view of Respondent's liberal use of its
weekly bulletin to apprise employees of its discriminato-
ry policies, I shall recommend that the notices herein be
required to be mailed to the homes of all present em-
pioyees and all those employed since March 1, 1977,
whether i the bargaining unit or not." 5 In addition, the
notices should be printed in the weekly bulletin once
each month for as long as the notices remain posted. Fi-
nally, I shall recommend that the notices in this case
remain posted for a period of 12 months or until a bar-
gaining agreement with the MSNA is concluded or a
lawful impasse is reached, whichever event occurs first.
In iew of the impact of Respondent's unlawful conduct
on NISNA bargaining activities statewide, I shall also
recommend that the notices be published at the Respond-
ent's expense in a newspaper or newspapers of general
circulation in the State of Maine weekly for a period of 1
month.
2. In order to assure that future bargaining in good
faith is carried out ad in view of the record evidence
herein concerninig early delays by Respondent in meeting
with MSNA and bringing forth economic proposals, I
will recommend the remedy suggested by Member
Murphy, dissenting in Ihe Leavenrorth Times. 234
NLRIB 631, that:
I For examlple. emploce I iilt vte, filed tile ccerification pelilllion
Ittificdl Ihat lnlph 'ecs wcre LIpsi becaust Ih dccertifical loin cleciillo
"ias lno upheld ilil threfire making iH iellligible for us It request he
l ;"igt ill rcIrese"
:' Ihcre Is tUlconltradicted ct idcelce thait Rcsplidenit feared tha if
MSNNA tcre lit stoippc antllh r liilll. tIspitill w\ rkers lUnilnl I.ocal
I L9', .i ldi ltl ImpI 1to oirgaili C olher hsiplital cnIplo )res,
248
EASTI'RN MAINE MtI)ICAL CtN I IR
[A]t the Union's request, Respondent meet for a
minimum of 15 hours per week until agreement is
reached or a lawful impasse is reached ... Re-
spondent consent to the presence of a represenltative
from the Federal Mediation ad Conciliation Sers,-
ice if the Union so requests; and . . . Respondent
prepare wuritten bargaining progress reports everx
15 days and submit them to the Regional L)irector
for Region [I] with true copies thereof to the
Union.
In addition, I ill recommend that Respondent he or-
dered to begin hargaining within 15 days from the date
of this Order. See lurowe Servo Conrrol, Inc... suprl, 367.
I believe that these provisions are necessary to ensure a
climate for good-faith bargaining in the future.
3. Respondent's bad-faith bargaining rendered MNSNA's
participation i bargaining a nullity and cost the ulnionl
time and money as shown in the September 1977 resolu-
tion of MSNA inot to undertake nesw collective-hargain-
ing activity. Accordingly, I shall recommend that Re-
spondelnt be ordered to reimburse the MSNA for anl,
and all expenses incurred in bargaining Uithi Respondent
front March 1, 1977, uitil June 22, 1977, hen bargainl-
ing ended, including reasonable expenses for salaries.
travel costs, per diemin and other reasoniable collective-
bargaining costs. See J. P Svens & Co.. Inc., 239 NI.RI
738 (1978X); and Menmbher Murphy's dissent in 7Th( I. Liiu(n-
worth ie', upra, 234 NLRB 649 (1977): see also 1.F..1
Milling Compaunyl, 170 NIRI3 1079. 1080 (196X8).
Fhe General Counsel also requests, as does the Charg-
ing Party, that Respondent be ordered to reimburse the
General Counsel and the Charging Party for expenses in-
curred i the investigation. preparation, and presentation
of this case. This is a novel remedy ordinarily reserved
for those cases where a respondent's defenses are "frivo-
lous" or not "debatable." Ilec'S,. Inc., 215 NLRB 765
(1974). Persuasive support for such a remedy is provided
by Member Murphy in her dissent in 7ie Leavenworth
Titnme, pra, and by Administrative ILaw Judge Ries in
J. P. Steveon, supra, particularly in cases such as this
where an employer has engaged in serious and deliberate
bad-faith bargaining. Ho. ever the majority in The Leav-
enwortlh irmt did not find the conduct therein "so egre-
gious" or respondent's defenses "so frivolous" to require
such a remedy.
The instant case is a strong candidate for the imposi-
tion of the litigation expenses remedy. Respondent's bad-
faith conduct was egregious in any meaningful sense of
the word. Its conduct was calculated and deliberate.
Moreover, Respondent is a large employer w'hose deci-
sions on the basic issues in this case were made by high
management officials. Respondent was represented at all
relevant times, including ill the negotiations, by counsel
who also litigated this case. In addition, the operative
facts herein were not seriously in dispute. There were
testimotnial conflicts over whether there had been an
agreement early in negotiations not to discuss economic
issues. ut, even on this issue, the significant factor was
consideration of the documentary evidence which
showed that Respondent placed conditions upon its eco-
nomic proposals which effectively precluded bargaining
on them until noneconomic issues usere resolved. The
violations herein involved events ad bargaining posi-
tions taken after March 1i 1977, and they were based pri-
marily on doclumentar. or essentially uncontradicted evi-
dence and the testimony of Respondent's officials. ran-
dous explained the discriminatory wage policy and docu-
metlary evidence highlighted its impact on emplosecs.
Respondent's negotiating g positions ere also well docu-
imenited. rom these facts it might be argued that the
legal implicaltions of Respondent's bargaining positionis
and discriminatory ithholding of wages were so clear
that Respondent's litigation of this case was simply a
conitinuation of its bad-faith bargaining attitude aimed at
defeating the Union.
I am reluctant to make the above finding and from it
order a litigation expeinses remedy because of my under-
standing of the position of the oard's majority on this
issue Its iew conltinues to be that such a rcmedy uitill
not hbe imposed xein a "egregious"'' case of bad-fltlh
bargaining unless a respondent's defenses are deemed
"frivolous."'' While many of Respondent's defenses ere
wide if' thie mark anid urpersuasive, I cannot ith confi-
deuce label them frivolous. See King i'rrac \' .\urring
Hlome nd lie /Hlel acilitrv 227 NLRH 251 (1976). I shall
therefore declilne to order the reimbursement ft' litigation
expentses.
Ulpon the foregoing findings ad conclusioins and thle
eintire record, anrid pursuant to Section 10(c) of the Act, I
issue the follo,inrg recommended:
()ORDE)R :"
The Respondent, Eastern Maine Medical Cenlter its
officers. agents, successors. and assigns. shall:
1. Cease and desist front:
(a) Promulgating, maintaining in effect, enforcing or
applying any rule. regulation, or other prohibition
against employees Iho solicit on behalf of any labor or-
ganization during their nonworkilng time in any area of
its hospital or on its outside preniises other thant immedi-
ate patient care areas.
(b) Promulgating, maintaining, enforcing, or applying
ally rule. regulation, or other prohibition which prevents
off-duty employees from soliciting on behalf of any labor
organization in the outside nonworking areas of the hos-
pital premises.
(c} Interrogating employees with respect to their union
activities or those of other employees.
(d) Discouraging membership in Maine State Nurses
Association (SNA), or any other labor organization, by
withholding wage increases from employees represented
by MSNA or any other labor organization or otherwise
discriminating against employees ill any manner ill regard
to their hire or tenure of employment or any term or
condition of enployment.
i n tecxcnit o *ctplion. are Iilc i pllx t'dL h5 S. 112 4 ,)
the Rild il it Rt.'g ~inlltln. I thc Natwlil I .ior Rt'l linl Ba rd til,
fitin ll rCkoni rltlJl ()rtt. }lt, i ll hrC ll. a- i pro ikti
i S- i() 48 lf 1lc Rulis ,ni,] Rcg ulllon. hi adiptedL h tit Hlril ildSn
hiconic it ftlllligv. ,L'TIC/u i i . i1iI ()irdt,. illn il;II ohicclllls Ithlrct.
,.hll d ,,ted ' %d foI r purpoe',
24q
I)ECISIONS ()F NA I IONAI. LABOR RELATIONS BO()ARI)
(e) Refusing to bargain in good faith over wages.
hours, and terms and conditions of employment with
MSNA as the exclusive representative of its employees
in the following appropriate unit:
All full-time and regular part-time general duty
nurses (staff RN's) employed by the Employer at its
Bangor, Maine Medical Center locations. including
nurse anesthetists and all instructors and assistant in-
structors at the School of Nursing; but excluding
employee education instructors, supervisors, assist-
ant supervisors, head nurses I and II, guards, all
other supervisors as defined in the Act, and all
other employees.
(f) Unilaterally implementing changes in wages, hours,
or other terms and conditions of employment without
first notifying and consulting with MSNA.
(g) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make whole the employees in the unit found ap-
propriate herein for any monetary loss they have suf-
fered as a result of Respondent's failure to make applica-
ble to such employees the increased wages and benefits
generally granted by Respondent to its unrepresented
employees on and after April 3, 1977, together with in-
terest, in accordance with the remedy section of this de-
cision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, surveys, and all
other records necessary to analyze the amount of reini-
bursement due under the terms of this Order.
(c) Rescind any rules restricting the areas and times in
which employees may solicit on behalf of labor organiza-
tions as they apply to times other than nonworking time
and to areas other than immediate patient care areas; also
rescind any no-access rule insofar as it applies to off-duty
employees and prohibits them from soliciting on behalf
of labor organizations in the outside nonworking areas of
the hospital premises.
(d) Upon request, bargain collectively and in good
faith with MSNA as the exclusive bargaining representa-
tive of the employees in the above-described unit within
15 days from the date of the Order.
(e) Post at its hospital facilities in Bangor. Maine,
copies of the attached notice marked "Appendix."'7
Copies of said notice on forms provided by the Regional
Director for Region I shall be: (1) mailed to all employ-
ees on the payroll as of March 1, 1977, and all present
employees; (2) published in Respondent's weekly bulletin
once every month for the period of I year or until a col-
lective-bargaining agreement is signed with MSNA or a
:" In the event hat this Order is enfirced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the Natlional abor Relations BHoard "shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board
lawful impasse is reached, whichever occurs first; and (3)
remain posted by Respondent for the period set forth
above in conspicuous places, including all places where
notices to employees are customarily posted with reasoin-
able steps taken to insure that said notices are not al-
tered. defaced, or covered by any other material; and (4)
published at Respondent's expense in a newspaper or
newspapers of general circulation in the State of Maine
weekly for a period of I month.
(f) Bargain with MSNA, at its request, for a minimum
period of 15 hours per week until agreement is reached
or a lawful impasse is reached; and, at the request of
MSNA, in the presence of a representative from the Fed-
eral Mediation and Conciliation Service; and prepare
written bargaining progress reports every 15 days and
submit them to the Regional L)irector for Region I with
true copies thereof to MSNA.
(g) Reimburse MSNA fr reasonable costs incurred by
it in the collective-bargaining negotiations as set forth in
the section entitled "The Remedy."
(h) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
II Is I:tRIIIIR ORI)IiRI) that the complaint be dis-
missed insofar as it alleges violations not found herein;
anid that the election in Case I-RD 888 be set aside and
the petition in that case be dismissed.
SUPPLEMENTAL DECISION
S \ ILM}N I OF I HI CASf.
ROIIRi A. CIANNSl, Administrative Law Judge: In
my original decision in this matter, some 16 months ago,
I considered and rejected the contention of Respondent
(also called EMMC) that the Maine State Nurse's Asso-
ciation (herein MSN was incompetent to represent Re-
spondent's employees because of the presence of third
party supervisors. As indicated in my original decision,
Respondent had not shown participation by its own su-
pervisors in the affairs of MSNA and the bargaining be-
tween Respondent and MSNA took place through subdi-
visions of MSNA which did not include third party su-
pervisors. While my decision was pending appeal to the
Board, the Board handed down its decision in Sierra
Vistla o.spital, In.. 241 NLRB 031 (1979). This decision
recognized the possibility, for the first time, that partici-
pation in union affairs by third party supervisors-those
employed by an employer other than the employer
whose employees are represented by the union-could
render a union incompetent to act as bargaining agent if
their participation creates a "clear and present danger"
of a conflict of interest affecting bargaining unit employ-
ees or the bargaining process itself.'
it date the iBoard has nolt disqualified a labor (irganizatlln solel be-
cause f the participation of third party supervisilrs in union affairs
'Ihere are, of course. cases. Iredatlrig S,rr a 'ivra, which hold that a
union may be disqualified from acting as bargaining representative where
it is shown that the unitoll, whether it includes third party supervsnirs or
r, has an iiproiper relatinship with an clipliyer 'hich has a compeli
iir or olhr close relationlship ith the enipilner with hom it seeks to
balrga;lin Se L. R B. Davild HButrick f; 'npanr. 361h F 2d (X) lis Cir
Continued
250
EAS TERN MAINE MEDICAL CENTER
On June 21, 1979, the Board remanded this proceeding
to me to take further evidence and to make findings, in
accordance with Sierra Vista, concerning whether or not:
[T]he presence of supervisors of Respondent or of
third parties as officers on the board of directors of,
or in other positions of authority to speak for or on
behalf of the Maine State Nurses Association dis-
qualifies that association as the collective bargaining
representative of Respondent's non-supervisory
nurses.
The Board deferred decision on all other issues presented
in the original decision, including findings of violations
of Section 8(a)( ) and (3) of the Act upon which the
remand issue had no bearing.
Thereafter, on June 29, 1979, the General Counsel
filed a motion for reconsideration which was denied by
order of the Board dated August 20, 1979. Member
Truesdale dissented and stated that he would grant the
motion and decide the case "on its merits now, and with-
out further delay."
Thereafter, I contacted the parties about setting a
hearing date for the remand. The parties were unable to
agree on a hearing date prior to November 1979. On No-
vember 14, 15, and 16, 1979, a hearing was held in
Bangor, Maine, on the remand issue. All parties were
permitted to present evidence and examine and cross-ex-
amine witnesses. Respondent called all the witnesses
except one, Vera Gillis, president of MSNA, who was
called by the Charging Party to answer about 10 ques-
tions.
Briefs from the parties were received on January 4,
1980.
Based on the evidence submitted in the original pro-
ceeding, the findings in my initial decision and the evi-
dence presented in the 1979 remand proceeding, I make
the tollowing additional findings and conclusions:2
196h); C(B5. r(ir 226 NLRB 537 (1976), enfd sub nom. Interrnautinual
Brotherhrod of Ehctircal Workers [CIBS, Inc v. X .L.RB., 557 F 2d 995
(2d Cir 1977), Bausch and Lomb Optical Co., 108 N.RB 1555 (1954).
The presence of an employer's own supervisors in the bargaining process
had been grounds for disqualifying a union long before Sierra Vlta. See
N'as.au & SuJJolk Coniractory .4socialion, 118 NL.RB 174, 17 (1957)
In my original decision, I also stated that I believed that Respondent
had waived any objection to the competrency of MSNA to act as bargain-
ing representatrie because of the presence of supervisors in MSNA This
was based on the law as it then existed which, in my view, did not recog-
nize an incompetency defense based on the presence of third party super-
visors Had any of Respondent's own supervisors been involved in
MSNA or in the bargaining process it surely would have know n about it
and should have objected during bargaining. Respondent did not object
and none of its own supervisors were involved in MSNA or the bargain-
ing process. Sierra ista apparently expanded the incompetent defense
to include allegations concerning the participation of third party supervi-
sors This intervening factor plus the very fact of this remand put into
question the efficacy of my waiver finding. However, I note that at least
line court has held that an employer waives a litigation inspired defense
to a unions' representative status when it bargains with that union for a
period of time See King Radio Inc .VL.R..R . 398 F 2d 14, 20-21 (10h
Cir 1968)
In response to my request that the waiser issue be briefed, Respondent
asserts that it was "only in the context of the present unfair labor practice
proceeding" that Responden recoglized the collecli. bahrgainiig sitlh
MSNA "had been and could be hampered hy an rganizationl cnlaining
large numbers of supervisors who were not sufficlently committed to the
bargaining process " his assertion exposes the lack (If suhbtance io the
Respondent has failed to satisfy its burden of proving
that MSNA is disqualified from serving as bargaining
representative of its employees.
In Sierra Vitra, supra, the Board recognized that par-
ticipation of supervisors in a State nurse's organization
could, in some circumstances, result in a disqualification
of the organization from acting as bargaining agent.
However, the Board held that such a disqualification will
be found only where the employer "meets its burden of
showing that the participation of its own supervisors, or
supervisors of third parties, presents a 'clear and present
danger' of a conflict of interest interfering with the col-
lective bargaining process." Lancaster Osteopathic fIospi-
tal Association, Inc., 246 NLRB No. 96 (1979). The em-
ployer's burden is a "heavy" one. Lancaster Osteopathic
Hospital A soc(iation, Inc.. supra.3
However, according to Sierra Vista, where, as here, an
employer's own supervisors do not belong to the nurses
association and the employer relies solely on the pres-
ence of third party supervisors, the Board has held that
there is no "inherent conflict in the bargaining process
between supervisors and employees." (Ibid.) As the
Board has stated in Lancaster:
The active involvement in PNA of a supervisor em-
ployed by a third party may create a conflict of in-
terest "[n]ot because . . . there is an inherent con-
flict between all supervisors and all employees, but
because of the possible relation between the em-
ployer with whom bargaining is sought and the em-
ployer or employers of the supervisor participating
in the bargaining process." With respect to supervi-
sors of third parties, a disqualifying conflict of inter-
est may result from a demonstrated connection be-
tween the employer of the employees whom the
nurses association seeks to represent and the third
party employer or employers.
Finally, a simple assertion that some of the association's
leaders hold supervisory positions in hospitals which are
in competition with the employer is clearly insufficient
to "demonstrate a clear and present danger of a conflict
of interest which compromises [a union's] bargaining in-
tegrity." Lancaster, upra. See also Arlington Hospital As-
Respondent's defense First, the long line of cases recognizing the ncom-
petency of unions Io act as bargaining representatives is bottomed on
concern for the employees, not the employer. In Bausch A Lomb Optical
Company, 108 NLRB 1555. 1559 (19541, the Board gave, as the rationale
for its disqualification rule, that a union must approach the bargaining
table "with the single minded purpose of protecting and advancing the
interests of the employees who have selected it as their bargaining agent
and there must be no ulterior purpose." Secondly, had Respondent been
prejudiced by the presence of third party supervisors surely it would
have objected sooner Is failure to do so durirg the year-long bargaining
process at the ery least renders its allegation that there existed a conflict
of interest highly unlikely. The alleged conflict is hardly in the category
of a "clear and present danger" if Respondent itself-as tough as it was
in negotitions - failed It recognize it during bargaining Cf. 4cme Wire
iork,. I1.. 229 NI.RB 3333, 336 (19771, enfd 582 F2d 153 (2d Cir
1978) cert denied sub non. Shopmen's Local 455, Internarltnal Asictwriaion
of' Bridge. Structural and Ornamental Iron Workers, .41-('IO .Arne Wire
1orkl, In'.] . .L. KB. 99 S.Ci. 1049 (1979)
' The parnllcpation of all employer's ow n super% isors in the bargaining
pries, had been ground for disqualifyrig a union long before Sierra
'oita See \'asau & Sjfl, l upra, fr I
251
I)t I'SI()NS ()1: NA I I)NAI. I.AB13()R Rl.AII()ONS )ARI)
%ocatioti. Inc. /a .Ir/inlgtonl Iospital, 246 NL R B No. 159)
(1979); IluallAhurg Generul lospital, 247 NLRBI No. 30
I 980X()): Rocjord M:morial .l.oci(Jlltonl dl/b/a Rock/Ord
.1etmorial llopital, 247 N RB No. 51 (198): Sidnel v
lrhcbr Cancer I stilute, 247 N I R No. I (1980).
Analyzing the evidence and thle largullCnts i this case
in accordianc w ith the albove authorities I find and conl-
clude that Respondeiit has not shown that a disqualifying
conflict of inllerest-on e that presents a clear and present
danger to bargaining unit employees or the bargaining
process-may result from any connection between Re-
spondeiit and any other emrployer whose supervisors par-
ticipate in the affairs of MSNA. My reasons inicluding
the niecessar N findings and cone llusions re set forth
hbelow:
1. No supervisors of Respondent are officers or direc-
tors of MSNA. Nor hits Respondent shown that any of
its supervisors are in positions of authoriy in, or even
memnber of, MSNA.
2. There are about 8X()00 members of MSNA. PIreseitly,
about 12 percent of the members hold supervisory posi-
tions. some with public sector eployers. The menmber-
ship has beel steadily dcclining. as has the ratio of super-
visor 5 mlellbers. For example. in 175 Ihcr.c ere 1283
members ad 18 percent of those were upCervisors he
designation supervisor was determined hy computilig tilhe
number of members who indicated on their applications
that they were either "(1) Administrator or Assistant or
"(3) Supervisor or Assistant." Some of the employers of
these supervisors were public sector employers such as
the State of Maine. Mailne labor ;laws provide for the in-
clusioni of supervisors of public sector employers il col-
lective-bargainling units and some supervisory meihbers
of MSNA are represented by labor organizations.
3. In the past 4 or 5 years anywhere from 4 to 7 of the
13 or 14 officers and directors of MSNA were in super-
visory positions, some with public sector employers,
such as the State of Maile.
4. The bylaws of MSNA provide for a council on eco-
nomic and general welfare (hereafter referred to as 1-
and G/W or the council) which is responsible for an
economic security program. This includes directing orga-
nizational and collective-bargainiing activities for nurses
"eligible for representation unler Maine abor l.aws aid
under Federal Laws and Executive orders," who are de-
fined as "eligible members." The 1()-member council.
which is to make annual and periodic reports to the
MSNA board of directors and the MSNA general mem-
bership, is "accouitable to" and elected by the "eligible
members." The council is authorized to establish guide-
lines for the chartering of local bargaining units and to
execute, on behalf of MSNA and the local bargaining
units, all bargaining agreements negotiated.
The bylaws also provide that local bargaining units
will "approve or ratify a collective bargaining contract"
by majority vote.
The MSNA bylaws provide that the council's program
may he funded by an "assessment in addition to annual
dues, payable by all eligible members" and set by eligible
members at the annual convelltion. The bylaws also pro-
vide that "eligible members shall approve . . . annual ac-
couits, audits aiid a budget at the MSNA annual convertn-
ion. "
5. At the May 1975 meeting of the MSNA board of
directors, the board voted that there hbe an amenidment to
the hylaws of the MSNA to chaiige the status of the
then-coliiissioin on econllOnlic and general welfare to re-
ilect its "insulation" vith a "separate budget."
Initial funlding of S2(X) was approved for the remainider
of 1975 for the commission.
At the Septembnher 1975 MSNA State convention the
cihanged tatus described ahove was approved and the
colmmission was changed "to a Council with its own
budget and with direct accoulltahilit to membership."
Tlhereafter "eligible members" appro ecd all accounlt,
audits, aind budgets The council is thus the only commis-
sion or counlcil of MSNA not directly accountable to the
board. '
6 The 1970 llllual report alllounced the board of i-
rector's p olicy, determined at the MaN 1, 1976. meeting,
to be as fllovws: "ClearI', those members of the Board
holdilg super isory posilions must remo ve themselves
from disclsOll anld o ting (on niatters concerning the
I conolnic Security Programn" There is testimony aid
solileidliatiol ii the illc minutes hat supervisors did ab-
stain from voting in accordance with the above po:icy.
7. The forination of the F and G/W council coincided
with a organizational campaign and bargaininig activities
at Respondent's hospital. It appears that the primary-
perhaps the onl-activity of the E and (i/W council
during the term if its existence was organization of aid
bargaining ith Respoideint. Since September 1977, the
couniicil sole r esponsihilitN has beenl to follo the litiga-
tionl of tills Case.
8. As stated in my original decision, the collective-bar-
gaining activities at Responidenlt were carried on through
the EMMC local hargainillg unit of MSNA which is sep-
arately chartered and has separate bylaws. Membership
in this unit is limited to members of the NLRB approved
hargaiiinig unit. No supervisors are included. The bylaws
provide for a negotiating and grievance committee
which has the authority to draw' up and present bargain-
ing proposals which it did during the negotiations with
Respondent. TIhe bylaws also contain a provision which
provides for a contract ratification vote by all employ-
ees. not only members. There is also a provision that
provides for grievances under any contract to be present-
ed hy the unit's negotiation and grievance committee.
Under the charter, the negotiating ad grievance com-
mittee is charged with "seeing that the terms of the
agreement are enforced."
The and (/W council has established a statement of
criteria for the chartering of local bargaining units which
states that it shall be the responsibility of the local unit,
inrer alia, to formulate conltract proposals and to partici-
pate in negotiations and ratify final contracts. The state-
nient also provides that the local bylaws clearly must
state that the functional purpose" of the local unit is "to
represent members i collective bargaining," that "con-
tract proposals must be approved by the members of the
-* S- /Ir tlrrhnIln I pr / il i, lt lr. /In . , ,1 miiton If pytal/ . 246
NtI R N.I 159 (I 7 1
LAS I 'RN MAINt NlMEt)ICA C( N IIR
local unit before they are presented flr negotiation" aind
that the inall negotiated contract ust be approved by a
majority of the members of the local unit before it is rati-
fied. The chartering criteria ere not discussed with the
MSNA board of directors.
During the period when it hargained sWith Respondent
in 1976 and 1977 the local bargaining unit actually for-
mulated hargaining proposals and negotiated with Re-
spondent. There is no e idence of supervisory participa-
tion ii the local bargaining unit or in the bargaining
which actually took place with Respondent.
9. There is no eidence that the board of directors has
veto power over the actions of the E and G/A council
or the local bargaining unit with respect to collectixe-
bargaining proposals or the final substantive content of
collective-bargaining agreements.
10, The E and G/W council is authorized to fund the
economic security program by annual dues and assess-
ments payable by "eligible members." The fee is set by
the "eligible membership" at the annual convenltion. It is
authorized to prepare, submit. and approve its own
budget. Such activities are limited to eligible members
who pass o the budget separately at the annual consen-
tions. Separate funding is also available to local units,
such as the EMMC local unit, which has the authority to
assess and receive dues from its members.
Neither the local unit nor the council has apparently
secured funding through alr assessment upon eligible
members. The council has submitted its budget through
the finance committee of MSNA and the board of direc-
tors where it has been incorporated in the MSNA
budget. Funding since it was formed as a council in 1975
has been provided to a great degree through a grant
from the American Nurses Association (ANA), the
parent of MSNA. It has also utilized general revenues as
follows: 1.95 percent of MSNA dues for 1976-77; mini-
mal amounts for 1977 and 1978X; and nothing after 1978.
The financial relationship between the E and G/W
council and the board of directors is indistinguishable in
any significant manner from that in Arlington lospital As-
vociation. Inc., 246 NLRB No. 159 (1979). The Board
found that the EGWC in that case was insulated from al-
leged supervisory influence and participation. Here, as
there, the board of directors plays no role in collective
bargaining. In the instant case, unlike in the Arlngton
case, the MSNA bylaws do not provide for a resolution
of a budgetary conflict between the E and G/W council
and the board of directors or the finance comniittee of
MSNA, but in this case it is clear that the council and its
"eligible members" have the authority to provide for
annual dues and assessments to fund their program indc-
pendently of MSNA. Moreover, in this case the evidence
shows a specific intent in te formation of the council to
insulate the council from the Board.
II. Respondent alleges some impropriety in the
MSNA requirement that the EMMC's local bargaining
unit adopt a bylaw which stated. "A closed or agency
shop is required in each contract to cover the expenses
of E and G/W program." Apparently, this provision ;s as
inserted to make the collecli, e-bargaitning actii ties of
MSNA pay for themselves without burdening the
MSNA's educational and promotional activities. In this
respect, the pros ision, if aniytlilng. reinforces the insuiila-
tion of local hargaining from general MSNA interfer-
cnce. Respondent suggests, without supporting evidence,
that this provision was prompted by third party supervi-
sors in MSNA. here is no evidence that this provision
s;sas nirandated or even suggested by third part supervi-
sors who were in positions of aulthority in MSNA or that
their employers caused them to take such a position be-
cause they had an interest in undermining Respondent or
the bargaining process. Nor is it shown that this provi-
sion worked to the detriment of the employees by virtue
of soime recognizable conflict of interest. Absent such
evidence-which would be arguably relevant only after
Sierra Ia t -- internal union requirements as to t lie proper
coutrse of bargaining are none of an employer's business. '
12. Respondent states in its brief that. in the 1976
annual report of MSNA, a supervisory dominalted com-
mission on nursing services. essentially nursing adminis-
trators, expressed some confusion as to whether theN
should retain membership in MSNA in view of the lat-
ter's participation in collective bargaining and that, as a
result a committee was appointed at the 1976 aninual
convention to study the question of "conflict of interest
for supervisory administrative personnel in a multi-pur-
pose association." From its brief I cannot tell hat Re-
spondent contends from this evidence. How ever, it is
clear that the supervisory administrators were concerned
with their own role as supervisors and conflicts they had
in acting as supervisors for their employers. Nothing in
the record establishes the kind of conflict of interest de-
fined by the oard in Sierra Vlista and subsequent cases.
Nor is there any es idence that this comimission interfered
with or participated in the bargaining actisities of the E
and G/W council or the local bargaining unit.
13. Some supervisors also served on an ad hoc so-
called Think Tank committee appointed in 19 79 -well
after the bargaining herein--by MSNA President Vera
Gillis to study, recommend, and articulate long and short
term goals for the NISNA. A consensus of the comnmit-
tee, kwhich included supervisors and nonsupervisors rec-
ommended that the education and general welfare coun-
cil be dissolved. The recommendation was rejected at
the September 1979 annual convention. at least in part.
because of the issuance of the original decision in this
case and the pendency of the appeal.
14. Neither the commission on nursing service nor the
"Think Tank" committee have any authority over the E
and G/W council, the local bargaining unit of Respond-
ernt, or collective-bargaining activities generally.
15. Only I of the 10 E and G/W council members kk as
alleged to have been a supervisor-for a limited period.
The chairperson of the E and G/W council from 175 to
1979 was Kathy Whitzell. Since April 1978 she has been
in a supervisory position with Augusta Mental Health In-
stitute. Before April 1978 she was in a nr1onsupersvisory
: h} sugL!gstolll iI Rpollid il',s bhrief i ti .SN v' , rsirilc c oi, i ,
.igIll sIp C1.itlsAIC ill h.lrgainlmllg irtcriferd uith tht ill{\ of thi' par
lies [10 I(.ich .Ig.l 'te"i' is 1het.r s1l phl,,iN Rcspor it'>Ll's IliliJrt
'
lit har-
2gr11I l gLtI l t 1 l l 111d ilhet ill}.llr ahll r pr.it', Cit auell-' thr i rt o
tlI pIrtlc ,h ; llgrinlti RKespinrle-dc it i ll timle l]cel untir hbor
practaIce harges galiIt NIMSNA
25S
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position. She is employed by the State of Maine and, de-
spite the fact that she appears presently to be in a super-
visory position, she is eligible for representation in col-
lective bargaining under the Maine State Labor Relations
Act. She is a member of a bargaining unit represented by
the Maine State Employees Association.
Whitzell's relationship to the E and G/W council was
not objectionable prior to April 1978 because she was
not a supervisor. Nor is there any evidence that she used
or could have used her supervisory position for the State
of Maine to effect the E and G/W council in such a way
as to establish a conflict of interest detrimental to the
employees of EMMC. That she works for the State of
Maine or that she is represented by another union in her
own employment conditions does not show a conflict of
interest. No other evidence or argument on this point
was submitted.
16. Respondent called seven witnesses who were alleg-
edly in positions of authority with MSNA and also alleg-
edly supervisors. Many were called simply to establish
their supervisory positions. One was a supervisor only
after April 1978, for a public employer; two others
worked for public employers although one had in the
past worked for a private employer; and one worked for
an agency closely connected with governmental organi-
zations. None testified to anything that would even re-
motely be considered a conflict of interest much less
present a clear and present danger of such a conflict
under the Sierra Vista doctrine.
Marcelle Solomon is the director of the Early Periodic
Screening Diagnosis and Treatment program for the
Aroostook County Action Program. She is a member of
MSNA and attended the "Think Tank" conference in
June 1979. She is also apparently on the MSNA's com-
mission for nursing services, a group concerned primarily
with nursing administration. She testified that she never
took any action in these capacities that would have influ-
enced or controlled the collective-bargaining activities of
MSNA.
Betty Ann Kent was on the MSNA board of directors
from 1975 to 1977. She presently works for the State of
Maine and prior to August 1978 she worked for the
Community General Hospital in Fort Fairfield. At the
latter hospital she was a supervisor. She testified that
while she was a member of the board she did not, to the
best of her knowledge, take any action that controlled
the collective-bargaining activities of MSNA and she
never discussed nor was concerned about the MSNA
budget during her tenure on the board.
Kathy Whitzell testified that, during her involvement
with the E and G/W council-from 1974 to the pres-
ent-no supervisor interfered with the decision making
process of the council. She was the president of the
council and after April 1978 a supervisor with a public
employer.
Hope Hurd, who is employed as a supervisor by the
State of Maine at the Bangor Mental Health Institute and
is represented by a union in collective bargaining, was a
member of the board of directors. She was an officer of
one of the Districts of MSNA from 1975 to 1978. She
was called to testify by Respondent but not asked about
her participation, if any, in E and G/W council matters
or in bargaining with Respondent.
Louette MacLeod, an assistant director of nurses with
the Waterville Osteopathic Hospital in Waterville,
Maine, was president of MSNA from September 1975 to
September 1977. She was not asked any specific ques-
tions about her participation, if any, in E and G/W
council matters or in bargaining with Respondent.
Respondent also called Agnes Flaherty and Mary Ann
Ogonowski as witnesses. They were officers and direc-
tors of MSNA and also supervisors for Maine Medical
Center (also referred to as MMC). Since Respondent
argues that there was an adversary or objectionable rela-
tionship between it and MMC the roles of these supervi-
sors in MSNA is discussed below.
17. The only specific evidence concerning a relation-
ship between Respondent and an employer whose super-
visors served on the board of directors involved supervi-
sors of the Maine Medical Center. MMC. located in
Portland, about 100 miles from Bangor.6 is the largest
hospital-in number of beds-in the State of Maine. Re-
spondent is the second largest.
Respondent's evidence is as follows:
Agnes Flaherty is the director of nursing at MMC.
Flaherty was president of MSNA from 1973 to 1975 and
a director thereafter. She testified she was "not aware of
any detailed activity or attempts at organizing" on the
part of MSNA. She testified that she was president when
the council on economic and general welfare was
formed. She did not vote on the matter however. She
also voted-as did a majority of the members of
MSNA-to suspend the activities of the council on eco-
nomic and general welfare at the State convention in
September 1977. She was also a member of the so-called
Think Tank committee in 1979 which recommended dis-
solution of the council. At the general convention she
voted against the recommendation. She has never re-
ceived money or payments from her employer for her
activities in MSNA. No evidence was elicited which
showed that Flaherty, as a director of MSNA during the
period that it was bargaining with Respondent, partici-
pated in any way in the bargaining process. Nor was
there any suggestion in her testimony that she or any
other supervisor had interfered with the bargaining ac-
tivities of the E and G/W council. She testified that
when the council was formed by amendment of the
bylaws in 1975 she did not vote on the matter. She also
voted in favor of suspending collective-bargaining activi-
ties in the 1977 resolution and, although she was part of
the "Think Tank" committee which recommended disso-
lution of the E and G/W council in 1979, she voted
against dissolution of the council at the convention.
Other supervisory members of MSNA employed by
MMC are Eleanor Irish, director of ambulatory nursing
services; Linda Cox Pearson, director of psychiatric
nursing; and Judith Stone, a substitute for Pearson-be-
ginning on September 9, 1979-because Pearson was out
on maternity leave; and Mary Ann Ogonowski, director
of surgical nursing. Leah Vosmus, also employed by
h Il it brief, Respondent states that Portland is 135 miles from Bangor.
At the hearing MMC's president testified it was 100 miles distant.
254
EASI'.RN MAINE MEDICAL. CENTER
MMC, is a director of a community health center where
she supervises five nurses. Vosmus was second vice
president of MSNA from 1976 to 1978: Pearson was a di-
rector during that period; Ogono-Wski w;as a director
from 1979 to the present; Stone is presently serving as di-
rector and first vice president for a term running from
1979 to 1981. She was elected in September 1979 but did
not attend the convention which elected her.
None of these other supervisors testified except for
Ogonowski. Ogonowski was not a director during the
bargaining with EMMC which terminated in July 1977.
She was elected a director in September 1979. She did
serve on the commission of nursing services from 1977 to
the present and on the 1979 "Think Tank" committee.
Ogonowski testified that since she became a director of
MSNA she does not recollect receiving any reports from
the E and G/W council. She also testified that the board
of directors "does not have control over the Council of
E and G/W."
The evidence concerning the relationship between
MMC and EMMC is as follows: The two hospitals com-
pete to a certain extent for personnel, such as specialty
type nurses, for example, in special care units, and super-
visors. In terms of facilities provided, Respondent offers
the following: The Maine Health System Agency
(MHSA), created pursuant to Federal law, is authorized
to rule on applications for new facilities and equipment
costing over $150,000. The purpose of this agency is to
prevent costly and inefficient duplication of facilities and
equipment. Dr. Edward C. Andrews, Jr., president of
MMC, testified that, several years ago, the Health
System Agency approved the purchase of a CAT scan-
ner, a computerized X-ray machine, for MMC. EMMC
also has a CAT scanner but allegedly its purchase was
not approved by MHSA. MMC also is the only hospital
in Maine which performs open heart surgery. Patients
and their physicians are free to use any hospital in Maine
and MMC admits patients from all over the state. There
is no relationship between the patient census of MMC
and EMMC; both hospitals are full. Dr. Andrews was
unable to testify whether there was a staffing relationship
between the two hospitals.
EMMC and MMC also cooperate, as members of the
MHSA, and perhaps the American Hospital Association,
in matters such as "negotiating of Blue Cross, education-
al activities for hospital administrators and supervisory
personnel." Dr. Andrews testified he did not view the
two hospitals as having an adversary relationship. In ad-
dition, according to Dr. Andrews, the operation of the
Maine Health System Agency requires consultation and
joint planning among hospitals "who serve a similar area
when they are going in for new facilities and new equip-
ment." To the extent that MMC and EMMC serve simi-
lar areas the required consultation applies to them.
Dr. Andrews also testified that he has never utilized
any of his supervisors to influence the determinations of
any labor organization nor spoken to them about using
their positions to influence decisions of MSNA. He testi-
fied, "I would not direct or condone a supervisor who
works for me influencing the union, the collective bar-
gaining unit of the MSNA."
There is no evidence that any of the MMC supervisors
participated in or influenced the bargaining between
MSNA and Respondent.
From the above evidence, I find that none of the
MMC supervisors participated in the bargaining activities
of MSNA or spoke for MSNA in such a way as to affect
the bargaining process. Moreover. I find that there is no
special relationship between MMC and Respondent
which would cause MSNA to be declared incompetent
to represent Respondent's employees because MMC su-
pervisors participated generally in the affairs of MSNA."
18. Respondent also argues in its brief that other un-
named third party employers may compete with EMMC
through MSNA because MSNA participates in the
Maine Health System Agency. The evidence shows
simply a general interest by MSNA in the agency as it
affects nursing services generally. None of it even re-
motely deals with collective bargaining, supervisors, or
competition between hospitals. The only specific evi-
dence, aside from the alleged competition with MMC,
discussed above, is the following:
4. At its June 22, 1979, meeting, the Board voted
to endorse an application for a "certificate of need"
(part of the MHSA application process) as follows:
A group in Farmington has requested that
MSNA endorse their efforts of applying for a
certificate of need for a 65 bed ICF in Farming-
ton. It was M/S/V that MSNA respond to Leon
Bresloff and Mary Bayer's request for a letter of
support, by writing a letter to the Department of
Human Services stating that the MSNA Board of
Directors endorse the concepts reflected in L.
Bresloff and M. Bayer's letter of 6/4/79 and that
they are both members of MSNA. [Exh. RR-6D,
page 14.]
There is no showing that supervisors of employers
who had a competitive or adversary relationship with
Respondent participated in the proceeding or did so for
purposes inimical to EMMC. The evidence is thus
wholly irrelevant. Nor has Respondent shown that the
fact that MSNA had anything to do with the Maine
Health System Agency's approval of a CAT scanner for
MMC that this action had any effect on the bargaining
process between EMMC and MMC or was the result of
pressure from the E and G/W council or that MMC su-
pervisors used MSNA to cause a preference for MMC
over Respondent on this matter. The evidence is unclear
whether EMMC even applied for a CAT scanner, but it
is clear that it now has one.
19. Respondent alleges that, as a general matter, the E
and G/W council is not sufficiently insulated from the
MSNA board of directors, which includes supervisors
and thus there is a potential for supervisory influence on
the council's collective-bargaining activities. Respondent
points to evidence of board of directors meetings with
council leaders which involved primarily status reports
on collective-bargaining activities and of alleged "control
of the purse strings" of the Council. I reject this allega-
tion.
255
25h
First of all, the argument flies in the face of the direct
evidence discussed above that the council xwas formed o
be insulated from the board of directors and was ac-
countable oniy to the memnibership that it hal separate
and independent budgeting and dues asssIIlenlt ahorit
xwithin its ow ll eligible memnbership \hich xcluded stat-
utory supervisors; aid that the board stated a policy that
supervisory members of the board should riot discuss or
volte (iln anrd (i/W' cvouncil atcrs which ldid comlli
before it.
Respondent's evidence on board of directors neet ings
showed that the council met \vitlh the board to irniform it
of its acixities, includig hbargaining actliitly, thal it ap-
provec d the council's budgt, that it considered additional
requests for funding, restricted funding, discussed the
proposal by the council thlat it study the possible affili-
ation for collective-bargaining purposes with another
labor organization, arid that it discussed the suspension of
council activities after a I '77 resolution at the aal
MSNA convention suggesting that the council no longer
be involved ill collective bargaining except to pursue the
instant litigation. None of this evidence is counter to the
stated purpose of the formation of the council that it be
insulated from the board and that supervisors retfrain
from participating i Board deliberations inolving the
council. There is no evidence of interference or partici-
pation by tile board or arty supervisory board rnellber i
the bargaining activities of the E and G/W council or
tle local bargaiing unit.
Respondent also cites evidence that onl various cca-
sions, the Board approved requests for additional x-
penditures by the council, approved allocation of 1.95
percent of MSNA dues for 1976-77 council activities and
authorized the council to hire a part-time secretary.
What Respondent does not cite is other evidence sub-
stantially diminishing the impact of this evidence which
supports the insulation of the council set forth in its cre-
ation. In May 1976, the boardt determined that "those
members of the board holding supervisory positions must
remove themselves from discussion and voting on lilt-
ters concerning the Economic Security Program." 'he
evidence indicates compliance with this policy arid Re-
spondent has not shown intervention by specific supervi-
sors on the board in council budgetary matters. As to
funding, the evidence is quite clear that the council's ac-
tivities were funded to a great degree from an ANA
grant of $5,(X). The council's report to the 1977 coniven-
tion states that the $5,(XX) grant was used for staff salary
and the "council asked the board of directors to take
$5,000 allotted to E and G/W expenses and return these
funds to the general fund of the MSNA budget." In a
January 1977 meeting, the board minutes state "The
Council will not accept the Board's recommendation to
hire their own part-time secretary."
Other evidence simply shows that the board and the
council met to discuss budgetary matters and that the
council reported on the status of bargaining arid litiga-
tion with Respondent. Nothing more specific is ordered
Indeed, at one such meeting, the board specifically ad-
vised the council that expenditures beyond the approved
budget were the responsibility of the council. On April
28, 1978, the Board reduced the council's budget to
$1(500) aid restricted it to expenses incurred ill the legal
proceedings w ith Respondent. estilnolly indicates that
only $ 50) was spent and that there vas n o fundirng for E
arid (/W activities thereafter.
Respondent's argunenit is basically that the board of'
direcors aind other committees dealt with tie F and G(/
WX council atl times when supervisors were members of
tilhe Board and such other comntittees and thus "tainted"
the coucil. [lhe argulentei fails to show ai "clear and
present danger" of a conflict of interest. First of all, it is
clear that the council as formed with the object of in-
sulatinig it fromr the board of directors and noneligible
rnmlhebers. Scondly, Respondent has not shown that su-
perx isors acted any differently than other m embers of
the Board inl dealing with the Council. I'hirdly, Re-
spondciit has not shown any actual interference in bar-
gaining. Indeed, the bargaining was i the hands of the
local iiit-i.c., the EMMC bargaining unit w hich was
l\o steps removed from the supervisors on the board.
Flourth, there ,'ias no showinig that the supervisors on the
Board acted on behalif of their employers who had al
objectionable relationship with Respondent . Fifth, there
was no showing that the supervisors on the Hoard took
or could have taken positions which would influence
bargaining to the detriment of bargaining unit employees
and vhich presented a clear and present danger of a con-
flict of interest ill the bargaining process. See Sidner'
Frher Cu'ocr'' r lntilulc, upra.
20. As mentioned in my original decision a resolution
was passed at the September 1977 annual convention to
suspend the collective-bargaining activities of the E and
G/W council, except for the activities at Respondent
which were the subject of pending unfair labor charges.
The chairperson of the council in her report in support
of the resolulion stated that the financial drain and use of
staff time caused bh the bargaining with Respondent
were major flactors for the resolution. The report stated
that Respondent "proved to be a formidable opponent at
the bargaining table" arid it also pointed to the result of
the decertification election. The (lecertification election.
which MSNA lost, was set aside.
21. find that Respondent's unremedied arid serious
unfair labor practices detailed in my original decision
were directly responsible for the resolution suspending E
and G/WV council activities in 1977 and subsequent ac-
tions to further suspend or dissolve the collective-har-
gaining authority of the E and G/W council.
22. Respondent alleges that supervisory participation
in the 1977 MSNA resolution to suspend E and G/W
council activities and the 1979 "Think Tank" recommen-
dation to the same effect was somehow objectionable be-
7 Ih hvllts f Ihe MSNA provide that i tI E and (i/W clunicil shall
"dat Il ;accordance with thie policies, hblaw;s and philoso phics (lf he
MNNA" Certainly uone such pIlicy is the taled desire of tile board as
issr ill Ie byav ns and I, offTicial mlnu es io insulate the 'otuniil Al-
lthet is Ihe balrd
'
s stled polihc5 i presetlI bioard slper.lsWrs from
oilinllg or) tF alld (/ /W oulil maltlters Moreover, ther i no evidence
that lltere was i cnll ic f interest, pote(rltial or actual by virtue f the
role of third-parly supersisirs in effectuating pcics, bylaws. or phillos-
phi' o.f Ihe MSNA iconslistet ith the bargaining positions iof MSNA
or It the dtriilclt of Respo detlll 's crnploye , sshonl i represnts 1I
this respect, the MSNA bylaws re similar to oties considered nonobljec-
liionabl h the Board in the Irligrn Ilolpitl case. upra
DF( ONS 01: NA I 10NAI_ LABOR RFLA I IONS W)ARI)
F.ASIITRN NMAINE M)ICAI. CN'TI R
cause it permitted the council to continue to hargaining
activities only with respect to Respondent. That may be
true but it is difficult to see how this adversely affected
the EMMC employees. Indeed, MSNA was true to them
by continuing to fight on their behalf despite initernal op-
position to collective bargaining as a general matter. In
its brief, Respondent argues, "obviously, supervisors of
competitor hospitals have a motive on behalf of their em-
ployers, to continue proceeding against Eastern Maine
Medical Center while preempting the possibility of orga-
nizational activity and collective bargaining at their own
institutions." There is no evidence to support this allega-
tion. Nor is there any evidence that the efforts to sus-
pend bargaining were spearheaded by supervisors acting
for their employers or that those employers somehow
conspired with MSNA to limit bargaining only with re-
spect to EMMC employees. Indeed some of the supervi-
sors in MSNA were employed by public employers who
did bargain collectively with unions. What really caused
the E and G/W council to atrophy, according to the
report of the chairperson of the E and G/W council to
the 1977 annual convention, was a loss of will on the
part of MSNA members caused by the apparently suc-
cessful but unlawful had-faith bargaining by Respondent.
Respondent also argues that the fact that the 1977 res-
olution stated that the future direction of "Economic and
General Welfare" would be "determined" by the MSNA
board of directors "in the interim between conventions"
indicates a lack of insulation from the board. I disagree.
First, as I have stated, the resolution was the direct
result of Respondent's unfair labor practices. Secondly,
the bylaws creating an insulated council and its inde-
pendent budgetary authority were not affected. Indeed,
the council continued to exist. The evidence shows no
difference in the relationship of the council to the board
after September 1977, except that the council suspended
all activities except for the instant litigation and the
board authorized studies to determine the direction of
the council. That the "Think Tank" recommendation to
dissolve the council was put to a vote at the annual con-
vention and that the recommendation was defeated
shows that the council was still viable. although dor-
mant, until the outcome of this litigation.
23 Respondent's arguments, simply reduced, amount
to a general sl;ltemelnt that third party supervisors has.e
authority ini the MSNA. and aill allegation that there ap-
pears to be a division-not attributcd solely to third
party supervisors and spawned to a great degree by Re-
spondenlt's unlawfiul conduct as to what kind of colinmit-
menrt MNSNA should make to collecti e bargaining. Such
factors as interinal divisions among member,, as to the rl-
ative commitment 1( collective bargaining. absent a spe-
cific showing of a conflict of interest, are not sufficient
to disqualify a union from representing employees. See
IlcaldIhurg General Ilospital. 247 NLRB No. 3) (1980()).
My reading of the Board's post Sierra ista decisions
leads me to conclude that the Hoard will not "examine
the internal affairs of [the labor organization] or the role
the third party supervisors play in the bargaining proc-
ess" absent a "demonstrated connection or relation be-
tween the Employees and the employers of supervisors
who . . serve in positions of authority in [the labor or-
ganizationl]." l.aicawter O.seoplthic lIospital .lssocialion
Inc., 246 NLRH No. 96 (1979). Thus. Respondent's argu-
ments concerning the role supervisors generally pla on
the board of directors or on committees which arguably
have some dealings with the E and G/W council are ir-
relevant. unless the employers of these supervisors ha,.e
an objectionable relationship with Respondent. Respond-
ent has failed to show specific evidence of such a rela-
tionship. Hut I have gone further and considered argu-
menits of general supervisory influence aid participation.
Respondent has failed utterly to show that whatever
dealings supervisory personnel on the board or oil other
committees had with the E and G/W council have or
could have had any effect on collective bargaining with
Respondent which would be detrimental to the employ-
ees represented hby MSNA.
" Althoughl R p-lmdclnt (Idoe,1 nol pclficall] raise the issue, t s ilear
thalll IOtram 1, noi nrlnl-llr p legtlionl *i - halgai nin.lr g Iulillri in Ihe crlli-
1Jt10111 it' VINA hcrcSI l c'll S ,' '.r/1 'lhngtl tipla/ Ihl',ltl . ,pra
257