Presbyterian/St. Luke's Medical Center

National Labor Relations Board - Board Decisions

Sep 21, 1981

258 N.L.R.B. 93 (N.L.R.B. 1981)

PRESBYTERIAN/ST. LUKE'S MEDICAL CENTER
Presbyterian/St. Luke's Medical Center and St.
Luke's Federation of Nurses and Health Profes-
sionals. Cases 27-CA-6403, 27-CA-6574, and
27-RC-5934
September 21, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 6, 1981, Administrative Law Judge
Clifford H. Anderson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the Charging Party
filed cross-exceptions and a supporting brief, and
the General Counsel filed separate briefs in support
of the Administrative Law Judge's Decision and in
answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings, 2 and conclusions 3 of the Administrative Law
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge's finding that Re-
spondent violated Sec. 8(aXl) of the Act by polling employees regarding
their grievances and creating the impression that such grievances would
be satisfied. We disagree, however, with his finding that Respondent vio-
lated Sec. 8(aXI) in the same poll by questioning employees concerning
wages, hours, and fringe benefits, and by granting wage and fnnge bene-
fits, changes based on the survey. Respondent had informed St. Luke's
employees in May 1979. prior to the initiation of the Union's organizing
campaign, that an impending merger with Presbyterian Medical Center
would result in wage-scale consolidation and a new fringe benefit pro-
gram by early 1980. A survey would appear, as the Administrative Law
Judge found, to be the logical method by which the employees could
choose from among the various wages and fringe benefits already in ex-
istence at the newly merged facilities. We find that the survey, to the
extent it focused specifically on wages, hours, and fringe benefits, was
conceived for legitimate business reasons and was not designed in this re-
spect in response or opposition to the Union's campaign. We likewise
find that the subsequent wage and benefit changes were lawful. Accord-
ingly, we dismiss the portion of the complaint's allegation and overrule
the parn of the Union's Objection 6 dealing with the polling of employees
regarding wages, hours, and fringe benefits. We also dismiss the com-
plaint's allegation and overrule the Union's Objection 9 concerning the
wage and fringe benefit changes.
3 In adopting the Administrative Law Judge's recommendation to
direct a second election, we find it unnecessary to pass on the Union's
Objection I alleging that Respondent prepared the Excelsior list in bad
faith and we do not rely on the Administrative Law Judge's recommen-
dation that Objection I be sustained.
The Administrative Law Judge erroneously sustained the Union's Ob-
jection 3 alleging that employee Neider was discharged for engaging in
union activities inasmuch as he dismissed that allegation of the complaint
Accordingly, we overrule the objection.
258 NLRB No. 21
Judge and to adopt his recommended Order, as
modified below.
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,
Presbyterian/St. Luke's Medical Center, Denver,
Colorado, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) Soliciting employees' grievances by means
of a survey and creating the impression that such
grievances would be satisfied in order to discour-
age employee support for St. Luke's Federation of
Nurses and Health Professionals or any other labor
organization."
2. Delete paragraph (e) and renumber the subse-
quent paragraphs accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
In the absence of exceptions thereto, we adopt, proforma, the Adminis-
trative Lasw Judge's overruling the Union's Objections 3(d), (e), and (g)
and 4, 5, 7, 10, and II.
We do not adopt the Administrative Law Judge's discussion of Essex
Inrernational, Inc.. 211 NLRB 749 (1974). with respect to the validity of
the no-solicitation rules. See T:R. Wi Bearing Division. A Division of
:R. W. Inc., 257 NLRB No. 47 (1981)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
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
sentatives of their own choice
repre-
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.
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT 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 by
means other than a clear unambiguous rule
limiting or prohibiting solicitation in immediate
patient care areas or other specifically identi-
fied areas where employee solicitation has an
unreasonable effect on patient care, during em-
ployees' nonworking time.
WE WILL NOT threaten or warn employees
about violation of no-solicitation rules which
are not in conformance with the immediately
preceding paragraph.
WE WILL NOT interrogate employees con-
cerning their union or protected concerted ac-
tivity.
WE WILL NOT solicit employees' grievances
by means of survey, thereby creating the im-
pression that such grievances would be satis-
fied in order to discourage employee support
for St. Luke's Federation of Nurses and Health
Professionals or any other labor organization.
WE WILL NOT reprimand or issue written
warnings to employees because of their pro-
tected concerted or union activity.
WE WILL NOT discharge employees because
of their union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Lauren Hammond immediate
and full reinstatement to her former position,
discharging if necessary any replacements
hired to fill her position, or if said position no
longer exists to a substantially equivalent posi-
tion, without loss to her seniority or other
benefits.
WE WILL make Lauren Hammond whole
for any loss of benefits she may have suffered
by reason of our discrimination against her by
payment to her of a sum equal to the value of
wages and other benefits she would have
earned from the date of her termination to the
date of our offer of reinstatement, less interim
earnings and with appropriate interest.
WE WILL rescind and expunge from our
personnel records any reference to wrongful
written warnings to and/or reprimands of the
following employees:
Harlan Bishop
Marcia Sherrill
Kathy Bitzer
Sharon Luhrs
Lauren Hammond
WE WILL rescind any rules restricting em-
ployee solicitation which are not clearly and
unambiguously worded and which limit solici-
tation to times other than working time and to
areas other than immediate patient care areas,
or other than specifically identified areas
where employee solicitation has an unreason-
able effect on patient care.
PRESBYTERIAN/ST. LUKE'S MEDICAL
CENTER
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge:
This case was heard before me in Denver, Colorado, on
June 3-6, 10, and 11, 1980, and the record was finally
closed on December 19, 1980. The procedural predicate
to this Decision is as follows:
On October 25, 1979, St. Luke's Federation of Nurses
and Health Professionals (herein called the Union, the
Charging Party, or the Petitioner) filed a charge in Case
27-CA-6403 against Presbyterian/St. Luke's Medical
Center (herein called Respondent or the Employer). This
charge was amended by the Union on May 8, 1980. On
January 11, 1980, the Acting Regional Director for
Region 27 of the National Labor Relations Board (herein
called the Board or NLRB) issued a complaint and
notice of hearing in Case 27-CA-6403.
On February 12, 1980, the Union filed a charge in
Case 27-CA-6574 against Respondent. On April 14,
1980, the Acting Regional Director for Region 27
(herein called the Regional Director) issued a complaint
and notice of hearing in Case 27-CA-6574 and an order
consolidating Cases 27-CA-6403 and 27-CA-6574 for
hearing.
On October 5, 1979, the Union filed a petition in Case
27-RC-5934 seeking to represent certain technical em-
ployees of the Employer. Consistent with a Decision and
Direction of Election issued on December 11, 1979, by
the Regional Director, an election was conducted on
January 10, 1980, with the challenges to certain ballots
being determinative of the results of the election. The
Petitioner filed timely objections to the conduct of the
election on January 17, 1980.
Following a directed hearing on challenges, the Hear-
ing Officer's Report on Challenges was issued on Febru-
ary 28, 1980. The Regional Director issued a Supplemen-
tal Decision on March 17, 1980, and, based thereon,
issued a revised tally of ballots on March 24, 1980, find-
ing that 79 ballots had been cast for, and 97 against, the
Petitioner with I ballot remaining undetermined. There-
after, on May 23, 1980, the Regional Director issued a
"Supplemental Decision on Objections to Conduct Af-
fecting the Results of Election, Order Directing Hearing
and Consolidating Cases and Notice of Hearing." This
decision directed a hearing on the Petitioner's objections,
and consolidated that hearing and the hearing scheduled
on the outstanding complaints.
94
PRESBYTERIAN/ST. LUKE'S MEDICAL CENTER
Following the hearing, the record was closed and
post-hearing briefs were submitted by the parties. On
August 28, 1980, counsel for the General Counsel filed a
motion to reopen the hearing and to consolidate cases
based on the asserted merits of Case 27-CA-6840, in
which case a complaint had been issued that same day
against Respondent. On September 16, 1980, granted
the General Counsel's motion, and directed the Regional
Director to set a date, time, and place of hearing "to be
held at the soonest opportunity" in the reopened consoli-
dated action. The Regional Director subsequently sched-
uled the reopened hearing for December 2, 1980. On No-
vember 24, 1980, the General Counsel moved to post-
pone the December 2, 1980, hearing indefinitely because
of new amendments filed by the Charging Party in Case
27-CA-6840. On November 25, 1980, 1 granted this
motion.
On December 1, 1980, the Charging Party and Re-
spondent filed a joint motion to sever proceedings, in
effect seeking to sever the as yet untried complaint in
Case 27-CA-6840, to close the record in the previously
heard and briefed cases, and to proceed to a decision
therein. On December 19, 1980, I granted the joint
motion again closing the record as to the instant cases
and remanding Case 27-CA-6840 to the Regional Direc-
tor. Thus, Case 27-CA-6840 is no longer before me.
The complaints in Cases 27-CA-6403 and 27-CA-
6574, as amended at the hearing, allege that Respondent
committed various violations of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended (herein
called the Act). The allegations include three improper
no-solicitation/no-distribution rules, multiple coercive in-
terrogations, improper wage increases, solicitation of
grievances, and the reprimand and discharge of employ-
ees. Respondent denies that it has violated the Act, in
part by denying certain conduct attributed to it and by
denying that the actions it took were for impermissible
reasons or were otherwise prohibited under the Act.
The Union's objections largely track the allegations of
the complaints but also include, inter alia, the contentions
that the Employer failed to comply with the Board
standard for the preelection list of employee names and
that its election campaign material was improper. The
Employer denied the commission of any objectionable
conduct.
All parties have been afforded the right to appear, to
call, examine, and cross-examine witnesses, to introduce
documentary or other evidence, to argue orally, and to
file briefs.
Upon the entire record of the case,' including briefs
from the General Counsel, Respondent, and the Charg-
ing Party, and from my observation of the witnesses and
their demeanor, I make the following:
While the above-described formal documents with respect to Case
27-CA-6840 are a necessary part of the record for its procedural founda-
tion, these documents, including the complaint in Case 27-CA-6840, are
not relevant in any substantive way to the determination of the issues
now before me.
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material, a
Colorado State corporation with its principal places of
business in Denver, Colorado, where it operates acute
care medical centers. In the course and conduct of its
business operations, Respondent has an annual gross
volume of business in excess of $250,000 and purchases
and receives goods and materials valued in excess of
$50,000 at its facilities in Colorado directly from outside
the State of Colorado.
II. THE L.ABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE AI.LEGED UNFAIR I.ABOR PRACTICES2
The unfair labor practices litigated at the hearing
cover a broad period of time and a variety of situations.
It is appropriate that they be organized for discussion in
the following manner.
A. Background Events and Circumstances3
Respondent operates facilities providing acute patient
care in Denver and Aurora, Colorado. The current
entity is the result of a July 1979 merger of two previ-
ously seperate bodies, St. Luke's Hospital Association
and Presbyterian Medical Center. St. Luke's Hospital
Association operated a self-contained tertiary hospital of-
fering a full complement of service to patients; it is this
facility which is in question herein (herein called St.
Luke's). Presbyterian Medical Center operated its main
facility in Denver, some 10 blocks from St. Luke's. Pres-
byterian also operated an Aurora, Colorado, facility, lo-
cated some 10 miles distant. Respondent now operates
the three facilities which employ some 3,000 employees
and maintain 1,037 beds: 465 at St. Luke's, 438 at Presby-
terian Denver, and 134 at Presbyterian Aurora.
In 1979, there were few hospitals in the State of Colo-
rado which had collective-bargaining agreements with
labor organizations. In the middle of that year, Denver
nurses embarked on a series of actions for mutual aid and
assistance which attracted the attention of the communi-
ty. On July 26, 4 a "sick-out rally" was held by Denver
metropolitan area nurses in a city park to protest nurses'
low wages, benefits, and staffing conditions. On August
16, nurses attended a rally at a local college where they
were addressed by speakers on behalf of various labor
organizations. On August 31, the nurses picketed a local
hospital to protest the discharge of an employee who
had been associated with the earlier nurse activities.
2 The Petitioner's objections will be discussed infra: however, objec-
tion allegations which are identical to unfair labor practice allegations
will be discussed under this section of the Decision and referred to only
in a conclusionary manner thereafter.
' These facts are taken from the Regional Director's December I I.
1979. Decision and Direction of Election, stipulations of the parties, and
credible uncontradicted testimony of witnesses
All dates hereinafter are in 1979 unless oitherwise indicated.
95
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These events were extensively covered by Denver area
television, radio, and newspapers. It may be said that
nurse organizational activity was a matter of some noto-
riety in the Denver area.
In July, and thereafter, union organization was either
under way or under discussion at various Denver hospi-
tals, including St. Luke's. Union authorization card so-
licitation was ongoing at St. Luke's in early September.
On October 5, the Petitioner filed the instant petition in
Case 27-RC-5934 and a separate petition in Case 27-
RC-5935 seeking to represent a unit of St. Luke's regis-
tered nurses. 5 While Case 27-RC-5935 is not before me,
it was processed simultaneously with Case 27-RC-5934
in the preelection stages.
B. Respondent's Solicitation/Distribution Rules
1. Language and periods of applicability
The complaint in Case 27-CA-6403 alleges, the
answer admits, and I find that the following rules were
in effect at St. Luke's during the periods indicated:
(a) Since on or about April 5, until on or about Sep-
tember 15 (hereinafter referred to as rule 1):
1. POLICY
1.1 Solicitations by Employees: Because of the dis-
ruption to the health care services of the hospital,
no materials shall be distributed to and no solicita-
tion shall be made of any hospital patient or em-
ployee in any patient care area within the hospital
premises.
Any solicitation must be confined to non-patient
care and non-public areas and during non-working
time. Examples of patient care and public areas are
patient rooms, treatment areas, reception areas, hall-
ways, stairways, coffee shop and the like. Solicita-
tion of employees by other employees may be made
during non-work time in non-work areas.
1.2 In no event will any solicitations be made of
either visitors or patients.
1.3 Solicitations by Non-Employees: Non-employ-
ees may not solicit on hospital premises for any
reason whatsoever.
2. GENERAL
2.1 Authorized Exceptions: The only authorized
exceptions to this rule will be the annual United
Way Campaign and the United States Savings Bond
program. These two programs are allowed due to
the community, or universal, nature of the program.
2.2 Any infraction of this rule should be handled
immediately by the employee's immediate supervi-
sor or department head, unless there is some ques-
tion concerning the application of the policy that
should be discussed with the Director of Personnel
or Administration.
(b) Since on or about September 15 until on or about
October 18 (hereinafter referred to as rule 2):
1 Following an election on January 10, 1980, the Petitioner was certi-
fied as the representative of the unit employees in Case 27-RC-5935.
Because our patients are in areas throughout the
hospital, and because our medical staff has deter-
mined that tranquility is essential to proper patient
care, the Medical Center, in cooperation with the
medical staff, has adopted the following rule:
Except to solicit participation in official Medi-
cal Center employee programs, no employee
shall solicit any other employee of the Medical
Center for any purpose at any time in any area to
which patients have access. This prohibition in-
cludes, among other areas, hallways, stairs, wait-
ing rooms, elevators, and patients' and visitors'
lounges.
Employees may engage in solicitation of other
employees only when both employees are on
non-working time and only in areas to which pa-
tients do not have access.
No employee shall distribute any matter of any
kind in any areas of the Medical Center except in
non-working areas to which patients do not have
access.
At no time shall any employee solicit any pa-
tient or visitor for any purpose, nor shall any em-
ployee distribute any matter to patients on visi-
tors.
This prohibition does not apply during non-
working time in the cafeterias at any of the cam-
puses, or during non-working time in the coffee
shop at the Denver Presbyterian campus between
the hours of 8 p.m. and 8 a.m.
(c) Since on or about October 18 (hereinafter referred
to as rule 3 and collectively with rules I and 2 as the
rules):
Effective immediately the following rule will be
in effect at all locations in the Medical Center.
Employees will not engage in any activity during
their on-duty time which takes them away from de-
voting full attention to their responsibilities.
Employees shall not engage in solicitation of
other employees on either the working (on-duty)
time of the employee doing the solicitation or the
employee being solicited.
Employees shall not distribute any matter on
their working time or in any working area.
The rule will be strictly enforced.
This rule is less restrictive than the rule which
has been in effect because we believe employees
will use reason and good judgment in all areas of
the Medical Center, particularly those areas of pa-
tient care and where patients and their visitors have
access. Naturally any activity which is disruptive to
the care of the patient or atmosphere of patient care
will not be tolerated.
2. The enforcement of the rules
As will be set forth more specifically infra, Respond-
ent's agents on various occasions warned employees
during relevant periods not to be away from their as-
96
PRESBYTERIAN/ST. LUKE'S MEDICAL CENTER
signed work areas during working time and not to
engage in nonwork discussions in certain areas. These
instructions and, in some cases, reprimands or warnings
resulting from perceived breaches were directed to em-
ployees whom Respondent's agents knew or suspected
were discussing union organization or preorganizational
protected concerted activity.
The record is replete with evidence that employees of
Respondent, including statutory supervisors, engaged in
the purchase and sale of commercial products manufac-
tured by Amway and other companies, and that these ac-
tivities were pervasive and occurred during worktime
and in patient care areas. These activities were so
common that I find that Respondent's agents knew, or
well should have known, of its frequent occurrence at
the facility during all relevant times.
Insofar as the record reflects, the three rules in ques-
tion were only enforced against known or suspected
union or other protected concerted activities at the facili-
ty and were not applied to other forms of solicitation-
including the commercial activity discussed above.
3. Analysis and conclusions
a. Facial validity of rule I
The record does not reflect the existence of a solicita-
tion rule preceding rule I or any evidence regarding the
rationale for its institutions Rule I permits employee so-
licitation during nonworktime if conducted in nonwork
areas. Solicitation even during nonworktime is prohibited
in patient care and public areas, which are exemplified in
the rule as including "reception areas, hallways, stair-
ways, coffee shop and the like."
The Board has developed a presumption that restric-
tions on employee union soliciation during nonworking
time violate Section 8(a)(1) of the Act absent a showing
by an employer of a business justification for the rule.
The Supreme Court has affirmed such a presumption.
Republic Aviation Corporation, 324 U.S. 793 (1976). The
Board modified this presumption in hospital cases in St.
John's Hospital and School of Nursing, Inc., 222 NLRB
1150 (1976). In that case, the Board held that hospitals
could prohibit solicitation in immediate patient care
areas. In other than immediate patient care areas, the
Board holds that solicitation should be permitted and
that employer prohibition would be presumed unlawful
absent a showing that disruption of patient care would
result. This new hospital standard was approved by the
Supreme Court in Beth Israel Hospital v. N.L.R.B., 437
U.S. 483 (1978).
Applying the standard here, it is apparent that rule I is
fatally overbroad. Here, as in Beth Israel, the rule in-
cludes in its solicitation ban the "coffee shop and the
like" without justification for its inclusion. ' Thus, rule I
prohibits solicitation in areas in which its ban is presump-
tively invalid. No evidence was proffered which would
justify the ban is imposition into the areas noted. It is
I The commencement date in the pleadings is the date 6 months prior
to the filing of the charge. The precursor Presbyterian Medical Center
had a similar rule. See The Presbyterian Medical Center. 227 NLRB 904
(1977), enfd. 586 F.2d 165 (10th Cir. 1978).
' See also the discussion of rules 2 and 3 infra.
thus invalid. Nor does Respondent seriously contend oth-
erwise. Accordingly, I find that by maintaining and en-
forcing" rule I, Respondent has violated Section 8(a)(l)
of the Act.
b. Facial validity of rule 2
Rule 2 limits employee solicitation to areas to which
patients do not have access. The rule prohibits solicita-
tion in, among other areas, hallways, stairs, waiting
rooms, elevators, and patient and visitor lounges. The
rule specifically allows solicitation in the facility's cafete-
ria or coffeeshop. It is clear from the record that the
prohibited solicitation areas of rule 2 are broader than
the "immediate patient care areas" where a presumption
of validity attaches to no-solicitation rules. It is appropri-
ate then to examine Respondent's justification for this
broader restriction.
(1) Evidence of the rationale, application, and
effects of rule 2
Dr. John F. Mueller, the director of medicine at St.
Luke's,9 testified that the hospital administration, in the
fall, asked the medical executive committee, of which he
was a part, to consider the then-ongoing union activity at
St. Luke's for the purpose of recommending changes in
the then-current solicitation-distribution rule, rule 1. That
committee considered the question.
Dr. Mueller testified that patients in a hospital'0 expe-
rience "a mixed emotional state that involves uncertain-
ty, a certain amount of fear, of wonderment, of not
knowing quite what to expect." Thus, every effort is
made to achieve "peace, tranquility, quietness, hopefully
happiness. [P]atients, who may be quite independent on
the outside become quite dependent when admitted to
the hospital." Dr. Mueller testified that it was important
for patient care to avoid a situation which would upset a
patient.
Given this goal of successful patient care, Dr. Mueller
described his own rationale, and that of his colleagues in
the staff meeting, as follows:
The situation in which the possibility of unioniza-
tion would be discussed and that is the specific issue
that was discussed at the medical staff meeting that
was referred to. It was the feeling of my colleagues
Respondent argues that there is no evidence, other than its answer
admitting that it maintained and gave effect to the rules, that it published
or enforced them and. therefore, that these allegations of the complaint
must fail even if the rules might be otherwise invalid. I reject this defense
first on the technical basis of the admission in Respondent's answer that
in each case Respondent "maintained in effect" the rules at the alleged
times. I find this admission sufficient to support a violation. Second. there
is evidence that, in the life of each rule. Respondent's agents, as set forth
infra, sought to limit or punish employee solicitation on the basis of the
then-existing rule.
9 Dr. Mueller's curriculum vitae and responsibilities at St. Luke's dem-
onstrate that he is a physician of training. experience, and responsibility
in the practice and administration of medicine and hospital care.
'° Inasmuch as Dr. Mueller testified that he had not observed or
learned of any solicitation he felt was detrimental to patient care during
any relevant period at St. Luke's, it must be assumed that his opinions
and conclusions are based on experience or training not specifically iden-
tified.
97
DECISIONS OF NATIONAL LABOR RELATIONS H()OARD
and certainly my own feeling that it does, indeed,
represent the kind of potential situation that can be
stressful for a patient.
Q. [by Respondent's counsel] Why?
A. Because I think that obviously unions right
away in the public eye usually mean strike and
strike means abandonment. This obviously could be
a very stressful situation for a patient in the hospital
who could feel that, well, everybody is going to
walk out and here I am and no one to take care of
me. I think that was the thing behind the medical
staff decision that you referred to which I support-
ed.
Q. Might the patient fear if a strike be potentially
harmful to a patient?
A. Yes, I certainly think so.
Q. How?
A. I think not only in terms of the possibility of
them not getting the necessary care that they
demand, but certainly the stress situation is one
which we try to eliminate or keep down, to subli-
mate as much as possible in a hospital experience
with a patient.
You know, there may be another element to this
whole business. I think also patients generally feel
that they want to be in a place where everybody is
getting along and I think unionization situations
always bring out the question of conflicts between
personnel who are working together in the hospital.
Dr. Mueller testified that, although not discussed at
the meeting, employee sale of products, tickets to social
affairs, or the like, while possibly distracting to employ-
ees in their duties, was a different issue because such so-
licitation did not raise the spector of abandonment (i.e.,
unionization causes strikes; strikes cause patient abandon-
ment) in patients' minds and was therefore less stressful
to patients. Dr. Mueller testified:
[W]e decided that we would recommend to admin-
istration that solicitation for the union would not be
allowed in certain areas of the hospital where pa-
tients might be a part of that conversation or hear
part of that conversation.
Therefore, the medical staff recommended to the admin-
istration that union solicitation not be allowed in certain
areas of the hospital where patients might participate in
or overhear conversations between employees.
While Dr. Mueller testified concerning the rationale
for the recommended solicitation rule change, it was
clear that his analysis regarding the impact of union ac-
tivities was based on abstract notions or experiences
other than at the facility. He testified that he had not ob-
served any adverse effect on patient care during the or-
ganizing that took place at the facility during the period
before the rule change. No evidence at all was offered
concerning actual observation of an adverse impact on
patient care. Nor was evidence offered of differing con-
sequences to patients when encountering or overhearing
employee organizational solicitation in differing areas of
the facility. While testimony was received concerning
what areas actually were used by or accessible to pa-
tients," Respondent proffered no rationale at the hear-
ing to justify the application of its ban to these areas,
nor, apparently, in adopting the new rule, did it consider
the potentially differing effects on patient well being of
encountering organizational solicitation in the various
areas of the facility.
(2) Analysis and conclusion
The presumptions of legality and illegality applied to
no-solicitation rules in hospitals, as a recent doctrine, is
undergoing clarification by the Board and the courts.
The Supreme Court in N.L.R.B. v. Baptist Hospital, Inc.,
422 U.S. 773 (1979), examined the effect of the Board's
presumption in the face of evidence that a hospital be-
lieved organizational solicitation by employees had an
adverse impact on patient care, and therefore banned it
in all areas open to patients and their visitors. On the
facts of that case, the Court found the Board's presump-
tion properly acted to render invalid hospital restrictions
on solicitation in first-floor or nonmedical floor lobbies,
the gift shop, and the cafeteria. The Court noted that the
hospital had presented no evidence regarding the fre-
quency of patient use of the cafeteria, the gift shop, or
the first-floor lobbies and that its evidence of a general
desire to avoid patient exposure to any employee union
solicitation did not overcome the Board's presumption as
to these areas which were removed from immediate pa-
tient care locations. The Court, in disagreement with the
Board, found that the hospital could properly ban solici-
tation in corridors and sitting rooms on patient floors. As
to these areas, the Court held the Board's presumption of
invalidity was insufficient to strike the rule.
Turning to the instant case, it is clear, and I find, that
Respondent's patients, or at least some of them, have
access to essentially all areas of the facility not specifical-
ly denied to public use and that therefore the effect of
rule 2 was to prohibit solicitation in a broad range of
areas, including much more than immediate patient care
areas. Consistent with Baptist Hospital, I find Respond-
ent's general argument that patient care is disrupted by
employee organizational solicitation sufficient to justify a
ban on solicitation in areas which are used by patients
qua patients as opposed to patients who as a result of
their ambulatory circumstances frequent areas used by
the public.' 2 So, too, I find the solicitation ban justified
in the hallways, elevators, and stairways utilized for the
movement of patients and emergency equipment.
N.L.R.B. v. Baptist Hospital, Inc., supra at 789, fn. 16. As
to these areas, rule 2 is not invalid.
Rule 2, however, includes areas in its ban on solicita-
tion which, while accessible to patients, are for general
use by those who are at the facility: patient, employee,
and member of the public alike. These areas include, but
I Included in this evidence was testimony regarding the use of hall-
ways, stairways, and corridors by staff in emergency situations which
also involved the use and movement of emergency equipment.
'2 The Board has rejected the argument that areas may be declared off
limits to solicitation because they are used by visitors of patients or other
nonpatienlt members of the public. Eatern Maine Medical Center, 253
NLRB 224 (198)).
98
PRESBYTERIAN/ST. LUKE'S MEDICAl. CENTER
are not limited to, the main entrances, lounges, stairs, and
corridors in areas not dedicated to patient care, as well
as the other areas of the hospital primarily for public as
opposed to patient use which are not described on the
record but which may be fairly inferred as existing in
any large modern hospital. It may well be that some or
all of these latter areas are sufficiently involved in patient
care, or are utilized by patients susceptible to adverse in-
fluence when union solicitation is observed, so as to justi-
fy banning solicitation there. Respondent, however, has
not introduced evidence which justifies applying its ban
to these areas. The presumption of illegality attaching to
a ban on solicitation in areas outside immediate patient
care areas places the burden of going forward on Re-
spondent to justify its ban. It has not done so here. Ac-
cordingly, Respondent's rule 2 is overbroad and must
fall. I shall therefore find that Respondent, by maintain-
ing and enforcing rule 2, violated Section 8(a)(1) of the
Act.
c. Facial validity of rule 3
The General Counsel attacks rule 3 in two respects.
First, it argues that the rule's reference to "duty time" as
a time when employees may not engage in solicitation is
overly broad. Counsel for the General Counsel does not
argue that a prohibition on solicitation during working
time is impermissible. He argues that Respondent's em-
ployees take duty time to include break and meal peri-
ods. Because duty time may be interpreted by employees
to include nonworking time, argues the General Counsel,
"the rule is invalid because it is ambiguous."
I reject the General Counsel's argument here because
the rule, in my view, is unambiguous on its face. The
terms "working time" and "on duty time" are used in
parenthetical opposition in the rule itself. I regard them
as equivalents herein. No evidence of broader application
or enforcement was submitted. The term "working time"
in no-solicitation rules has been approved by the Board.
Essex International. Inc., 211 NLRB 749 (1974). Further,
the rule is by its own terms "less restrictive" than the
previous rule, which also uses the term "working time"
as the basis of distinction for allowing or prohibiting so-
licitation. I find therefore that, irrespective of testimony
by an employee that the rule had been misunderstood,
the reference to on-duty time is neither overbroad nor
fatally ambiguous.
The General Counsel also attacks the last paragraph of
rule 3 as overbroad and ambiguous. The rule states:
[W]e believe employees will use reason and good
judgment in all areas of the Medical Center, par-
ticularly those areas of patient care and where visi-
tors and their patients have access. Naturally any
activity which is disruptive to the care of the pa-
tient or atmosphere of patient care will not be toler-
ated.
I agree with the Generel Counsel that the admonition
that Respondent will "not tolerate" activity "disruptive
of the atmosphere of patient care" is unclear. The use of
the "atmosphere" metaphor is ethereal, but the threat is
fundamental. Employees are unsure of what is permitted,
but are certainly aware that some activity will not be tol-
erated. As the Board noted in Solo Cup Company, 144
NLRB 1481, 1481-82 (1963):
[W]here the language is ambiguous and may be mis-
interpreted by the employees in such a way as to
cause them to refrain from exercising their statutory
rights, then the rule is invalid even if interpreted
lawfully by the employer in practice.
I find rule 3 to have such a chilling effect on the em-
ployees' exercise of their Section 7 rights. This is particu-
larly true where, as here, Respondent has promulgated a
series of shifting rules regarding solicitation and has
taken action against employees for violating such rules.
Accordingly, given the lack of clarity regarding what
employee conduct is prohibited by the rule, I find rule 3
ambiguous and therefore fatally overbroad and invalid.
Thus, I find that, by maintaining and enforcing rule 3,
Respondent has violated Section 8(a)(1) of the Act.
d. The allegation of discriminatory application of the
rules
The General Counsel has alleged as a separate viola-
tion of the Act the discriminatory application of the rules
to union solicitation only. If the rules are invalid, as I
have found supra, any discipline pursuant to them is a
violation of the Act irrespective of the fact that the con-
duct might properly have been prohibited and discipline
administered under a narrower, valid rule. The Times
Publishing Company, 231 NLRB 207 (1977); AT. & S.F.
Memorial Hospitals. Inc., 234 NLRB 436 (1978); George J.
London Memorial Hospital, 238 NLRB 709 (1978). Thus,
given this threshold determination, the allegation here is
subsumed in my findings regarding the previous allega-
tions concerning the invalidity of the rules and does not
constitute a separate violation of the Act. I shall there-
fore dismiss this allegation of the complaint.
Were my previous findings modified or reversed by re-
viewing authority so that one or more of the no-solicita-
tion rules was held not invalid, the instant allegation
would not fail at the threshold, but would then have to
be judged on the record made by the General Counsel
on discriminatory application. In order to avoid a possi-
ble remand on the question, assuming the reversal de-
scribed, I make the following conditional findings of fact
regarding this allegation.
On the basis of my findings regarding specific conver-
sations, events, and actions of Respondent discussed
infra, I find that Respondent utilized the no-solicitation
rules to limit employee organizational activity as op-
posed to other social or nonwork discussions on work-
time. I specifically find that such social conversation was
a common and public part of employees' activity on
worktime through all relevant periods. So, too, I find
that, again as discussed infra, Respondent sought to
apply the rules regarding maintenance of patient care
only to organizational activity or suspected onganiza-
tional activity and not to other open and notorious work-
time activities which distract necessarily from patient
care, such as the purchase, sale, and distribution of com-
mercial products. Lastly, I find that in some instances,
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed infra (for example, the Halloween Luhrs-Mor-
rison lavatory conversation), Respondent applied its rules
to areas clearly inaccessible to patients and the public
and, further, selectively applied its rule (in the case cited
only to one employee of whom union activity was sus-
pected and not to the other employee).
C. Allegations Concerning Employees Hammond.
Bishop, Sherrill, and Bitzer
1. Events
A variety of allegations in the complaint deal with the
activities of a leading union activist, Registered Nurse
(hereinafter RN) Lauren Hammond, 1 3 and other em-
ployees who met with her. A prefatory recitation of the
events and controversy concerning them will assist the
analysis.
Hammond was employed by Respondent as an IV
nurse; i.e., a registered nurse whose task it is to start,
maintain, and monitor the intravenous administration of
fluids and medication into patients. Unlike nurses as-
signed to particular patient areas in the facility, the IV
nurses have occasion in the course of their duties to
travel about the hospital. At all times Hammond's profes-
sional skills have been well regarded by Respondent.
Other than the events and circumstances hereinafter de-
scribed, Hammond was regarded by her employer as a
fully satisfactory employee.
In mid-July, the assistant administrator of nursing serv-
ices, Pamela VanGenderen, an admitted supervisor, re-
ceived a report from an acting supervisor that Hammond
had solicited her and later another nurse regarding repre-
sentation matters at the second floor nurses' station. On
July 16, VanGenderen summoned Hammond to her
office where they had a conversation alone.14
VanGenderen raised the reported incident with Ham-
mond. She told her it was a serious matter. VanGen-
deren said Hammond had been seen in hallways, in ele-
vators, and in areas where she had not been assigned,
and at times when she was not on break. VanGenderen
told Hammond the National Labor Relations Board did
not allow solicitation in patient care areas on worktime.
A discussion then occurred concerning the National
Labor Relations Board. Hammond then told VanGen-
deren that she was not trying to organize the nurses. In
Hammond's recollection, VanGenderen then asked, "I
would like to know what you're trying to talk to them
about." The conversation continued at length concerning
the state of nurses' dissatisfaction in the area, and in the
facility as a whole, and other related matters.
Hammond testified that about a week after this con-
versation with VanGenderen, as she was leaving an area
of the facility under the supervision of admitted Supervi-
'3 There is no dispute that Hammond was a known union activist and
one of the leaders in the organizational campaign.
14 Each testified concerning the conversation. While their versions do
not differ substantially. Hammond testified in greater detail to the lengthy
conversation, and VanGenderen evinced an inability to recall whether
she had made certain statements. To the extent their versions differ. I
credit the detailed recollection of Hammond.
sor Eileen Deroff, 5 Deroff spoke with her. Deroff
greeted Hammond in a friendly way, but then asked
Hammond where she had been. Hammond said she had
been in Deroffs area. Deroff then asked Hammond if she
were assigned to that area. Hammond said she was not.
Deroff asked Hammond what she was doing and Ham-
mond answered that she was posting newspaper clip-
pings on the bulletin board in the nurses' lounge. Deroff
asked the subject of the posting and Hammond replied
that it concerned the nurses in Denver. Hammond testi-
fied concerning Deroff:
And she turned around, and she seemed to be in
real deep thought. She had her head down. She
took a few steps back toward me and she said,
"Listen, I don't want you to repeat this to anybody,
but it would behoove you to stay on the units you
are assigned to."
Hammond asked Deroff what she meant, but Deroff
merely repeated her statement and walked away. Deroff
did not testify. I credit Hammond's recitation of the
events.
On October 5, in 2B South, a patient area of the facili-
ty, about 7 p.m., a conversation of disputed length and
nature took place between Float Pool Licensed Practical
Nurse (LPN) Kathy Bitzer, Staff RN Harlan Bishop,
Staff RN Marcia Sherrill and IV RN Hammond. The
conversation occurred at the entrance to the old medica-
tion room or head nurse office by the nurses' station.
This conversation was observed to a limited extent by
nurses aide Caroline Voss.
Bishop testified that a brief, unstructured, unplanned
conversation occurred in which Bitzer asked Hammond
for a union authorization card and Hammond told her
that the matter would have to be deferred, to resume
after working hours. Bishop characterized the conversa-
tion as being a coincidental meeting of employees with
Bitzer coming and going during its occurrence and the
entire events lasting about 15 minutes. Bitzer also re-
called the conversation, including her card request and
Hammond's suggestion that they await off-hours. She
placed the meeting as less than a minute in duration, aris-
ing essentially out of the coincident presence of the other
employees. Sherrill did not recall the meeting, nor did
Hammond.
Voss testified that the meeting lasted almost an hour
and that, although she listened to its substance for only a
few minutes, she believed it concerned union matters. As
a result of this meeting, Voss testified it was necessary
for her to assume certain functions not normally assigned
to her and consequently to work overtime at the end of
her shift at 11 p.m. Bishop testified to an uneventful day
until late in the evening when there was an unusual press
of work resulting from patient admissions of a type re-
5s Deroffs name appears as spelled in the complaint in Case 27-CA-
6403 and as admitted in Respondent's answer thereto. While Deroff did
not testify the transcript refers to her as Dieruf. a spelling which Re-
spondent adopts on brief. Remarkably, the General Counsel chose the
spelling "Deror' on brief. The Charging Party wisely makes no specific
reference to her on brief. With apologies as necessary to the individual in
question, the spelling in the complaint and answer is used herein.
100
PRESBYTERIAN/ST. LUKE'S MEDICAL CENTER
quiring special care and time. Bishop denied that the
meeting, such as it was, could have caused Voss to work
overtime.
About a week after the meeting, Voss had occasion to
discuss with her supervisor, Lila Shafer, the reason for
her overtime work on October 5. Voss reported the Oc-
tober 5 meeting she had observed as the cause and justi-
fication for her overtime hours. Voss' version of the oc-
currences on October 5 was passed on to VanGenderen.
On October 16, VanGenderen received directly from
Voss her version of the October 5 events. VanGenderen
met separately on October 17 with Hammond and Bitzer,
and had Shafer raise the matter with Bishop. VanGen-
deren asked Bitzer if she recalled a lengthy meeting on
October 5 with the other employees in question. Bitzer
said she did not and the meeting ended. VanGenderen
met with Hammond and asked her if she had had a
lengthy meeting on October 5 with the employees
named. Hammond replied that she did not have an hour
free from her duties to allow such a meeting. VanGen-
deren replied that such a meeting had been reported to
her and asked what duties were to have been performed
by Hammond at 2B South on the evening of October 5.
Hammond answered that she was there in the normal
course of her duties, either for therapy or rounds. In her
denial, Hammond asserted that she well knew how and
where to talk to nurses. Thereafter the meeting ended.
Bishop met with Shafer and generally denied that a
union meeting or other type of employee meeting had
occurred on October 5. Meeting later with Shafer and
VanGenderen, Bishop continued to deny either the hold-
ing of a meeting as such or any consequent diminution in
proper patient care by the nurses. Bishop did recall and
relate that on October 5 Bitzer had asked Hammond for
or about a union authorization card but was told by
Hammond that such matters must be discussed during
off-hours. Bishop continued to deny that the October 5
conversation was a union meeting or the like. Bishop
also told Shafer and VanGenderen that the press of busi-
ness later in the shift, as described above, and only that,
resulted in Voss being asked to undertake certain end-of-
shift duties, including the shift transition report of patient
vital signs-an unusual procedure to be assigned to a
nurses aide.
Thereafter, VanGenderen consulted various hosptial
records and ascertained in her view that, while Voss'
memory of the duration of the meeting was not necessar-
ily accurate, some period of time did pass on October 5
without normal business being transacted on the floor by
the nurses in question. She determined as a result that all
the employees involved should be counseled.
An overlapping series of events was developing which
would culminate in Hammond's discharge. Diabetic and
Stroke Clinical Specialist Gail Moore testified that she
arrived at work at 7:40 a.m. on October 16 and, as she
entered the facility through the emergency room en-
trance, observed Laura Hammond and a second unfamil-
iar individual talking together. As she entered the area
she heard the address system page Hammond and ob-
served that Hammond did not respond to the page.
Moore went to her office and, in her estimation, after
some 20 minutes, she moved toward the entrance area
bound for the coffeeshop. During this passage, she heard
Hammond paged on the address system a second time.
Reaching the entrance area she observed Hammond and
the other individual still standing and conversing as
before. Hammond had not answered the second page.
Moore placed the time between hearing Hammond's
second page and her observation of Hammond on her
return to the entrance area at 3 to 5 minutes. While there
observing Hammond, Moore overheard a third page-a
stat page'6 -for Hammond. She observed Hammond re-
spond to the stat page immediately.
Moore testified that she reported her observations to
Supervisor Susan Kellerhaus by a telephone call from
her home to Kellerhaus' home on the evening of Octo-
ber 16.
At a weekly department head meeting on October 17,
Kellerhaus reported sketchily to VanGenderen regarding
these events. VanGenderen called Moore on October 17
and asked to talk with her. On October 18, Moore met
with VanGenderen and directly reported her version of
the above events.
VanGenderen testified that, based on this report and
her subsequent investigation of facility page records, she
determined to terminate Hammond. VanGenderen then
met with her superior and Respondent's labor counsel
and effectively recommended Hammond's termination.
VanGenderen testified that she had not previously re-
ceived a complaint concerning an employee not answer-
ing a page, nor had she knowledge of others having
dealt with a similar situation. She considered it to be a
sufficient breach of professional standards as to merit dis-
charge, however, and so represented her position to
higher management. VanGenderen met with Hammond
on October 18 after having had Hammond's final papers
prepared. VanGenderen asked Hammond about the inci-
dent. Hammond professed no memory of the alleged Oc-
tober 16 events. VanGenderen told Hammond that she
was terminated. Following this, two agents of Respond-
ent escorted Hammond off the premises. She had not
been offered reinstatement as of the time of the hearing.
Bishop, Sherrill, and Bitzer were each issued identical
warnings on October 17, 19, and 20, respectively, which
stated:
October 5, 1979 during the evening shift on 2 B
South, you stopped work to meet with other staff
members to discuss nonwork related matters. This
interruption of duty is negligent of your responsibil-
ity for patient care. Any further activity of this type
will result in your termination.
The following letter was prepared and entered in Ham-
mond's file but was not given to her during her employ-
ment or at her termination:
On October 5, 1979 you interrupted your duties
to meet and discuss with other employees nonwork
related matters. On October 16, 1979 you again in-
terrupted your duties for nonwork related matters.
's A common page using the word "stat" (based on the Latin statim.
meaning forthwith. straightaway, at once, immediately, or instantly) and
requiring the immediate attention of the paged party
101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You failed to answer your page several times until
finally a double page STAT was given.
Because of this neglect of duty, your employment
is terminated.
On October 30, Sherrill raised the reprimand she had
received with Shafer, her supervisor. Sherrill was con-
cerned with its possible effect on her professional reputa-
tion. The two reviewed together the basis for the letter's
issuance. Shafer told Sherrill that Hammond had been
"getting sloppy about where she was having her union
meetings and things." She added, "If you're going to
play these games concerning the union, you have to play
by the rules... . The employer makes the rules and you
have to play by those rules."
2. Analysis and conclusions
a. Allegations of interrogation 18
The General Counsel has alleged various counts of co-
ercive interrogation by Respondent's agents, VanGen-
deren, Deroff, and Shafer. The facts are not in essential
dispute and involve various instances when Respondent's
agents queried Hammond concerning her location, the
justification for her presence, and her activities in those
locations, and queried Bishop, Bitzer, and Sherrill con-
cerning their activities on October 5. Respondent seeks
to shelter this pattern of inquiry into employees' actual
or suspected organizational activities by noting that the
actions were investigations into conduct occurring on
worktime, which conduct Respondent had properly pro-
hibited.
I have found supra that the no-solictation rules of Re-
spondent which were in effect during the times when the
various interrogations occurred are illegal and invalid.
The rules therefore fail as a defense even to interroga-
tions concerning union activities which could have been
properly prohibited. "[T]he Board has consistently held
that when an employer promulgates and maintains
overly broad no-solicitation and no-distribution rules
those rules are invalid for all purposes and not valid in
part as they apply to a given area." The Times Publishing
Company, 231 NLRB 207, 208 (1977). Further, the sepa-
rate interrogations constitute a pattern or course of con-
duct which augments the finding as to each separate
event that the questioning had no objective or business
related basis, but was rather designed to and did chill
employees' Section 7 activities by showing Respondent's
interest in and hostility to employees' organizational ac-
tivity. Thus, I find Respondent's conduct in interrogating
employees concerning their union activities as described
above, in each and every instance and in its totality as a
course of conduct, violates Section 8(a)(l) of the Act.
"7 The various allegations discussed below turn primarily on questions
other than the resolution of the conflicting versions of events. Save as
specifically noted herein the uncontradicted testimony of witnesses as to
what they said and heard is credited.
:1 The allegation that Price violated the Act on October 29 is dis-
cussed infra.
b. The reprimands based on the October 5 events
The written reprimands of Bitzer, Bishop, and Sherrill,
and that portion of Hammond's termination statement re-
ferring to the October 5 incident, cannot be justified by
the then-applicable no-solicitation rule which I have
found invalid supra. The Board holds that discipline that
might be justified because of solicitation in the area
where such conduct could be lawfully prohibited is un-
lawful if the disciplinary measures are imposed pursuant
to an overly broad rule. A. T. & S.F Memorial Hospitals,
Inc., supra. Thus, the reprimands violate Section 8(a)(3)
and (I) of the Act.
Even were a valid no-solicitation rule in place on Oc-
tober 5, 1 would find the reprimands based on the events
of that date violative for the following reasons. I have
considered the testimony of the participants to the Octo-
ber 5 meeting as well as that of Voss. I discredit Voss'
version of the events both on the basis of her demeanor
and on the inherent improbability of the events as she
testified to them. Voss' report to supervision concerning
the October 5 events was delayed for many days and
was given only by way of attempted justification for
having worked overtime on October 5. In light of the
uncontradicted testimony concerning the events of that
day, it is clear, and I find, that the 7 p.m. or midshift
event did not cause Voss to work overtime. Voss was
seeking justification for overtime and therefore had a
motive to boost the significance, content, and duration of
the nurses' meeting. The remaining participants, all of
whom testified, struck me as truthful and direct. I reject
Respondent's argument that Bishop's changing recollec-
tion of what occurred on October 5 suggests that her tes-
timony was less than credible. Bishop, Hammond, and
Bitzer testified that their first thought of the "meeting"
was that it was no meeting at all. Crediting them, I spe-
cifically find that there was an unstructured meeting of
employees which was coincidental, spontaneous, and
lasted but a few minutes, during which a few words
were exchanged, including Bitzer's query concerning a
union authorization card and Hammond's deferral of the
matter to nonworking hours. Such an event is of no con-
sequence and could not support punishment even under a
valid no-solicitation rule.
It is unnecessary to decide if VanGenderen had a
good-faith but mistaken belief that patient care was af-
fected by the October 5 meeting.' 9 I find that VanGen-
deren was intent on enforcing the hospital no-solicitation
rule as to union solicitation and particularly so as to
Hammond. This finding is supported by the remarks of
Shafer to Sherrill on October 30. VanGenderen knew
that a union card was mentioned in the October 5 meet-
ing. I find that an intent to apply the no-solicitation rule
rather than some independent motive to protect patient
care was the basis for VanGenderen's actions in repri-
manding the employees.
19 Were it necessary to do so, I would find that she did not have such
a belief, given her exposure to the credible denials of the four profession-
als involved and the patently implausible story of Voss. VanGenderen
had knowledge of the Bitzer request for a union card and Hammond's
statement to raise the matter later. VanGenderen should well have
known the meeting did not rise to the level of punishable conduct.
102
PRESBYTERIAN/ST. LUKE'S MEDICAL CENTER
Indeed, given my findings concerning the nature, dura-
tion, and conduct of the October 5 meeting, it is clear,
even presuming the no-solicitation rule's validity, that
only Bitzer made even arguably improper reference to
the Union. A good-faith but mistaken belief by an em-
ployer of employee misconduct in the course of protect-
ed activity is no defense. N.L.R.B. v. Burnup & Sims,
Inc., 379 U.S. 21 (1964); George J. London Memorial Hos-
pital, 238 NLRB 704 (1978).
Based on all of the above, I find that Respondent
issued the letters of reprimand not because of a concern
for patient care but rather as part of its enforcement of
its overly broad no-solicitation rules and as part of a plan
to discourage union organization at its facility by punish-
ing union adherents, particularly Hammond. 20 Accord-
ingly, I find that in so doing Respondent has violated
Section 8(a)(3) and (1) of the Act.
c. The discharge of Hammond
Given the preceding findings, it is clear that Respond-
ent had animus against Hammond because of her union
activities and a clear record of violating the Act with re-
spect to her. Indeed, in the discharge letter, quoted
supra, specific reference is made to the October 5 inci-
dent as a factor in the discharge-a reference and criti-
cism, I have found, based on protected activity and vio-
lative of the Act. Indeed, Respondent, on brief, justifies
Hammond's discharge in part by noting the previous
events:
The penalty of discharge for Hammond's offense is
particularly appropriate in her case. The day before
she was terminated, she stated to VanGenderen
during their conversation concerning the October
5th incident, "Who knows better than myself when
and where to talk to the nurses." She had also been
told on prior occasions, e.g., on July 16, that work-
ing time must be used for working purposes and not
for nonrelated matters.
Given those threshold findings of illegality, the refer-
ence to the October 5 meeting, and the July warning in
the discharge letter, and crediting VanGenderen's testi-
mony that the July and October 5 events were part of
her decision to fire Hammond, I find that the General
Counsel has made out a prima facie case of illegal dis-
charge without even reaching the question of the legality
of adverse action against Hammond based on the events
of October 16. Wright Line, a Division of Wright Line,
Inc., 251 NLRB 1083 (1980).
Under Wright Line, once the General Counsel has
proven his prima facie case, Respondent has the burden
of showing that a permissible basis for the discharge
would have caused the discharge irrespective of the pro-
tected conduct and the wrongful actions of Respondent.
Thus, here Respondent must sustain its burden of show-
ing (I) that its action based on Hammond's October 16
conduct was not illegal, and (2) that the discharge would
20 Hammond hand-delivered the representation petition to Respondent
on October 5, the day the purportedly improper meeting took place. This
was a coincidence which could not be lost on employees who were con-
sidering supporting the Union.
have taken place because of this conduct even without
the illegal action taken against Hammond described
supra. If Respondent meets this burden as to both factors
then Hammond's discharge is not the result of illegal
conduct and is permissible irrespective of my previous
findings.
I find that Respondent has not sustained its burden of
showing that it would have fired Hammond absent its il-
legal discrimination against her for her earlier protected
activities. There is no persuasive evidence preferred that
would support a finding that Respondent would have
considered Hammond's October 16 conduct as meriting
discharge for a first offense. Respondent has therefore
failed to meet the burden assigned it under Wright Line.
Thus, I find it unnecessary, in analyzing the legality of
Hammond's termination, to discuss the events of October
16. The actions of Respondent in taking action against
Hammond based on her conduct of October 16 are inde-
pendently relevant, however, both as to the Union's ob-
jections to the election and as a separate and independent
violation of the Act. Thus, it is appropriate to analyze
the circumstances surrounding the paging incident and
its consequences even though I would find Hammond's
discharge a violation of Section 8(a)(3) and (1) of the
Act under any view of those events.
In October, IV nurses were paged on a frequent
basis-20 to 30 times per working day-as a means of di-
recting them to patients needing their services. Ham-
mond testified credibly that the IV nurse paging proce-
dure in effect in October was that if a first page was not
answered in 15 to 20 minutes a second page was made.
VanGenderen, based on an investigation of the proce-
dures then in effect, testified that, under the applicable
operating manual, if an IV nurse missed two regular
pages, the paging clerk had the discretion to place a
third page "stat"; i.e., on a priority basis that command-
ed immediate response.
Moore's testimony regarding what she observed on
October 16 was clear, and her demeanor was persuasive.
She has no apparent stake in the outcome of the case.
Hammond did not have a clear memory of events, nor
did the person with whom she spoke on the morning of
October 16 testify. Considering this testimony and that
relating to the records of the pages that day, which
while not definite are helpful as to events, I conclude as
follows: Hammond was in the hall talking with a col-
league. In response to a request for IV assistance, placed
at 7:45 a.m., Hammond was paged sometime thereafter.
Hammond did not respond to the page and was paged a
second time per normal procedure. When she did not
answer this second page, acting consistently with normal
elective procedure, the paging clerk paged Hammond,
"stat." Upon hearing this "stat" page Hammond immedi-
ately responded at 8:05 a.m. Thus, for the approximate
periods indicated Hammond either did not hear or ig-
nored two nonstat pages. I further find, based on the in-
formation conveyed to her and her own subsequent in-
vestigation, that VanGenderen was or should have been
aware of these facts before she determined to fire Ham-
mond.
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV Nurse Janet Morrison testified credibly that the
functions and practice of IV nurses at that time often
made immediate responses to pages impractical. She tes-
tified that she routinely ignored pages for 15 to 20 min-
utes at a time. Hammond also testified that she did not
always answer when first paged. The General Counsel
showed that Respondent subsequently changed its page
procedures for IV nurses by discontinuing pages for non-
stat messages and requiring IV nurses to call in to the
paging clerk every half hour in order to receive mes-
sages. Thus, it is apparent that a system for contacting
IV nurses with the likelihood of 30-minute delays in re-
ceiving messages is now the accepted practice and
policy.
The General Counsel and the Charging Party argue
that the testimony that IV nurses regularly missed pages
in October, the existence of the procedure to call a page
"stat" when two nonstat pages have not been answered,
and the subsequent change in paging procedures for IV
nurses indicates that "the fact that Hammond allegedly
did not answer her pages for about 20 minutes was no
more than routine and was not a valid justification for
discipline." Respondent on brief advances an opposing
caution:
A decision overturning Hammond's discharge
would substitute the Administrative Law Judge's
judgment for that of Respondent's Director of
Nursing concerning what is or is not detrimental to
the interest of patients, a result that cannot be justi-
fied under the Act.
Respondent is correct that it is inappropriate to substi-
tute judicial opinion for that of Respondent's agents re-
garding standards of employee conduct. Indeed, an em-
ployer does not have to be reasonable in its decision to
terminate an employee. No attempt has been made to
second guess Respondent's agents. It is also true, howev-
er, that the circumstances of a discharge, as here, must
be considered by the finder of fact, not to judge the rea-
sonableness or fairness of the employer's standards, but
rather to determine if, in fact, the reasons advanced for
the discharge are the true reasons and not a sham or pre-
text. In this sense, where there is an absence of credible
explanation for a termination, it may be inferred that the
discharge was motivated by reasons prohibited by the
Act. Shattuck Denn Mining Corporation (Iron King
Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966).
I have considered the arguments of counsel on the
issue, the testimony of witnesses, and the other evidence
of the October 16 incident and subsequent events. I have
also considered my findings, supra, concerning earlier il-
legal actions taken against Hammond and others, as well
as my observations and findings regarding Respondent's
reaction generally when confronted with the union orga-
nizational campaign. I find that the evidence preponder-
ates in favor of a finding that Respondent, generally, and
VanGenderen in particular, terminated Hammond not
because of a belief that patient care had suffered through
her conduct, but rather as punishment for Hammond's
union activities and as a means of chilling the union ac-
tivities of others. 2
It was conceded that VanGenderen had never re-
ceived nor known of a complaint that an employee had
not answered a page. No rule addressed such a situation
other than the existing procedures which provided, at
the discretion of the pager, for the placement of a "stat"
page when two nonstat pages went unanswered. Van-
Genderen apparently siezed upon the conclusion that
two pages had been missed to fire Hammond without
discussing the circumstances with her. Before the meet-
ing at which VanGenderen told Hammond she was
fired-the only meeting in which the events were dis-
cussed-Hammond's termination papers had been pre-
pared. At the meeting, VanGenderen did not attempt to
discuss her purported fears about patient care or to ques-
tion Hammond regarding IV nurse page response proce-
dures, even though VanGenderen at that time was admit-
tedly ignorant of both. This evidence indicates that Van-
Genderen was determined to use the report of missed
pages as justification for Hammond's discharge and did
not wish to place her rationale at risk by inquiry of
Hammond or others regarding IV nurse page response
practice or procedure. Were the preservation of patient
care standards the motive for VanGenderen's action, it is
much more likely she would have sought to learn of the
practices of IV nurses generally, the better to correct a
practice which other employees in addition to Hammond
followed. Assuming she disapproved of the IV nurse's
practice, which I find included delays in responding to
nonstat pages, VanGenderen could have initiated
changes in the procedure by memo or otherwise. Rather,
VanGenderen did not inquire and sought shelter in her
professed ignorance of the IV page response practices
testified to by Hammond and Morrison. 22
I find that Respondent terminated Hammond because
of her protected concerted activities, including those oc-
curring in July and on October 5-activities not prohibit-
ed by a valid no-solicitation rule. I also find that this dis-
crimination was designed to chill the organizational ac-
tivity of other employees. 23 I find that the asserted
reason for termination involving the October 16 paging
incident was just a pretext seized upon to justify Ham-
mond's termination. Accordingly, I find that Respondent,
by terminating Hammond, in part, for her missing pages
21 I specifically discredit VanGenderen's testimony that her decision to
take action against Hammond was free of antiunion considerations. I do
this both on the probabilities described above and on her demeanor
which, as to her motive testimony, was singularly unimpressive.
22 Where a manager is confronted with an employee action which is
viewed as unsatisfactory, it is logical to assume, especially where the
manager is ignorant of employee practice generally, that the manager
will seek to learn what the practice has been and if dissatisfied promul-
gate corrective rules. Respondent took no action to issue a rule or to oth-
erwise inform IV nurses, or others, that delays in page responses were
unacceptable. Indeed, subsequent changes in procedure make it clear that
30-minute delays in delivering messages to IV nurses are not considered
unacceptable.
21 Supportive of this finding is the testimony of Barbara O'Brien,
which I credit, that in December Administrator Lenz told her that Ham-
mond's discharge served a useful purpose in slowing down employee ac-
tivities at the facility. Respondent argued that this activity reference was
to employee grievances I find, however, that the reference was to em-
ployee organizational activity on behalf of the Union.
104
PRESBYTERIAN/ST. LUKE'S MEDICAL CENTER
on October 16, violated Section 8(a)(3) and (1) of the
Act. 24
d. The October 30 Sherrill-Shafer conversation
Given the previous findings regarding the invalidity of
the no-solicitation rules, the warning improperly issued
to Sherrill based on the October 5 events, and the illegal
termination of Hammond, Shafer's remarks to Sherrill re-
garding the necessity of playing by the Employer's rules
and regarding Hammond's errors in having "union meet-
ings and things" also violates Section 8(a)(1) of the Act
and I so find. Indeed, such statements would be violative
even absent the illegal activity which preceded it. Such
comments by supervisors to employees are but coded
instructions to an employee to cease protected activity-
backed up by the threat of adverse action similar to
those that had gone before.
D. Other Allegations
1. The October 20 Price-Morrison conversation
Dr. Elmira Price, an admitted agent of Respondent,
was hired by Respondent to meet with the nursing staff
as part of her analysis of staffing procedures. A meeting
was conducted by Price involving emergency room
nurses, including RN Janet Morrison, on October 20. As
the meeting concluded, Morrison and Price met at the
exit and conversed. During the conversation they were
joined by employee Sharon Luhrs. Morrison testified:
Dr. Price asked-told me that a union was not
going to solve all these problems-or did I think a
union was going to solve these problems, that's
what she asked me. And I just looked at her, and I
said, "I have no intention of discussing unions with
you."
Luhrs then started to defend unions to Dr. Price, but
was stopped by Morrison. Price did not testify. I credit
Morrison.
Respondent argues that Price's question is rhetorical
and not threatening or coercive. The Board's view is to
24 Respondent also asserts additional conduct by Hammond on Octo-
ber 16 which, it argues, if discovered prior to Hammond's actual dis-
charge would have independently caused her discharge and, in any
event, precludes her reinstatement. Thus, Respondent asserts that Ham-
mond took an extended lunchbreak and that there were two additional
instances of irregularity or delay in page response and patient treatment.
Respondent, by illegally terminating Hammond before it became aware
of the above-described conduct asserted as warranting termination or bar-
ring reinstatement, has reduced to conjecture the proposition that it
would have terminated Hammond had it discovered the conduct before
her termination. Respondent assumes the risk of uncertainty in such a sit-
uation. The Lima Lumber Company, 176 NLRB 696 (1969). As I have
found supra, Respondent has not established standards of conduct regard-
ing IV nurse page responses, nor has it done so concerning IV nurse
lunch period duration. Further, Respondent's asserted misconduct by
Hammond is but argument taken from not unambiguous records which
do not supply critical contextual explanation as to circumstances or miti-
gation. Given the burden on Respondent in this aspect of the case, I find
there is insufficient evidence to support a finding that Hammond would
have been terminated for the conduct attributed to her or even that, in
fact, the conduct attributed to her did in fact occur in the context assert-
ed by Respondent. Even were I to assign greater weight to all of the
above, which I do not, I would find it appropriate to raise the defense in
the compliance stage of this proceeding.
the contrary. See the Board's rationale in PPG Industries,
Inc.. Lexington Plant. Fiber Glass Division, 251 NLRB
1146 (1980), in part overruling prior case law. Accord-
ingly, I find that Respondent, through the remarks of its
agent described above, violated Section 8(a)(l) of the
Act.
2. The probation and discharge of Vera Neider
LPN Vera Neider was employed by Respondent on
the night shift from April to October 21. On July 10,
Neider received a "corrective action" and counseling re-
garding excessive sick or absent time and regarding call-
ing in ill later than is required. The required procedure
for reporting an illness is to notify the appropriate agent
at least 2 hours before commencement of the relevant
shift. Again on September 1, Neider received a correc-
tive action and counseling concerning continued attend-
ance problems and calling in too late when reporting an
illness. As a result, her probationary period as an em-
ployee, normally ending after 6 months' service, was ex-
tended until October 15. During this extended probation,
she was required to bring in written evidence of sickness.
Neider thereafter was in regular attendance until Octo-
ber 15 and 16, on which days she did not come to work.
Although Neider testified that she attempted to report
her illness within the required period on October 15, she
admitted that she did not, in fact, contact Respondent
until after the deadline. She also was absent on October
16, but made a timely report of her intended absence that
day. When Neider returned to work she submitted a doc-
tor's note which was dated October 16, and which on its
face indicated Neider could return to work.
Judith Green, then the director of the department in
which Neider was employed, called Neider into her
office on October 21 and terminated her for her absen-
teeism. Neider thereafter was employed by a temporary
nursing service, which supplies temporary personnel to
hospitals. In December, she was referred by this agency
to work at Respondent in her former job. Her cost to
Respondent as an employee of the temporary nursing
service was significantly higher than her cost to Re-
spondent as its own employee although her services
were identical. After a period of some 10 days, Respond-
ent contacted the temporary nursing service and request-
ed that Neider no longer be referred to Respondent.
Neider has not worked at nor been offered employment
by Respondent since.
Neider wore union buttons and otherwise indicated
that she was a union supporter while employed by Re-
spondent, although it is not clear that she was, or was
suspected of being, exceptionally active on the Union's
behalf. The General Counsel alleges that both the Sep-
tember I extension of probation and the Ocbober 21 ter-
mination were undertaken by Respondent because of
Neider's union activities. I disagree and, for the reasons
set forth below, find the General Counsel has not met his
burden of proof with respect to Neider.
First, there is little evidence of animus against Neider.
She was but one of many who wore union buttons. The
agent of Respondent who terminated her, Green, credi-
bly testified that she did not know Neider by sight nor
105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did she know of her union activities. Second. Green
merely applied Respondent's rules regarding absence to
the employee. Neider had been warned in July and Sep-
tember concerning both her excessive number of ab-
sences and her failure to supply the required timely
notice of intended absence. Her absence of October 15
was again without required notice. Her absence on Octo-
ber 16 was essentially unexcused for her doctor's letter,
dated October 16, indicated she could have returned to
work, yet she called in sick for her 11 p.m. shift that
day. Respondent seems to have applied its rules to the
situation and reached a not unpredictable result. 25
Neider's subsequent return to her former position
through the intermediary employer does not require a
different result. While sadly ironical for Neider, the
event seems to have been coincidental and Respondent
ultimately notified the referral service it did not wish
Neider referred to St. Luke's. Thereafter, the practice
ceased. Neither the delay in doing so nor the act itself is
either unusual or supportive of the Genenal Counsel's
case. Large institutions do not always act quickly. Given
the nondiscriminatory determination that Neider was un-
reliable, it is logical that Respondent would not choose
to employ her through an intermediary employer.
Accordingly, based on all the above, I find Neider was
put on probation and terminated because of her absentee-
ism and the application of Respondent's rules with re-
spect thereto. I find that she was not fired or put on pro-
bation because of her union activities or other protected
conduct. Therefore, I shall dismiss these allegations of
the complaint.
3. The reprimand of Sharon Luhrs
Sharon Luhrs had been employed by Respondent as an
LPN since 1977. She was a supporter of the Union, and
her support was known to Respondent at all relevant
times. She also attended the representation hearings
before the Board. While working on her first day of em-
ployment following the conclusion of the representation
hearings, November 9, she was summoned by Supervisor
Sandy Robinson to a meeting with Robinson, Head
Nurse Mary Lou Hanson, a supervisor, and Laurie
Lakely, also a supervisor. In the meeting, Robinson told
Luhrs, referring to handwritten notes, that Luhrs had
been in other units of the facility discussing nonwork re-
lated matters with other employees on October 26 and
31. Luhrs was asked to sign a form which stated:
You have been counseled regarding going to other
units to discuss nonwork related matters. Should
such an occurrence happen in the future, further
disciplinary action will be taken.
Luhrs at first refused to sign the form but later signed in
acknowledgement of the counseling. At the time of her
signing, a second page of the document, briefly reciting
the events of October 26 and 31, was appended thereto.
2Z The Charging Party notes the arguable unfairness of declaring
Neider's late call on October 15 a violation of the notice rule when she
had tried to call in earlier. I do not reach the issue of fairness, but con-
clude that the action of Respondent here is not so unusual as to create an
inference of pretext as to the reasons asserted for the discharge
Luhrs testified that on October 26 she asked Hanson if
she could leave her work area to visit former patients.
She received permission and went to a separate floor
where she spoke to two former patients. She then went
to a different area of the facility and spoke to an employ-
ee for some 5 minutes, after which she returned to her
own floor and duties. The written recital of the October
26 events tracks Luhr's testimony, but adds that Luhr
was seen on the floor talking to an employee and that
this fact was reported by a supervisor who later inquired
of Robinson if Luhrs were on her break. Luhrs was in
fact on the equivalent of a break inasmuch as she had not
taken her customary break earlier that day.
Luhrs testified that she came to the facility on Hallow-
een, October 31, to participate in an employee party. As
she was preparing to leave the building employee Morri-
son approached her adjacent to the elevator entrance
and asked about former employee Hammond. Luhrs told
the employee that they could not discuss the matter in
the hall so they entered a lavatory, 26 and there held a
brief conversation. The reprimand's second page recital
of the October 31 events is consistent with this recitation
but adds that Luhrs and employee Morrison were dis-
covered in the lavatory and that they immediately left
the area.
Luhrs and others testified credibly that employees, in-
cluding supervisors, regularly bought and sold products
(such as those marketed under the trade name Amway)
in its patient care areas at the hospital. Indeed, Luhrs
had observed such conduct by Mary Lou Hanson imme-
diately before her reprimand. There is no evidence that
Respondent's agents had knowledge of the subject of
Luhrs' conversations on October 26 or 31. However, on
each occasion Respondent knew that Luhrs was on her
own time. Luhrs testified that until her return after the
representation hearings she had regularly left her own
work area and visited other areas of the hospital on her
own time without comment from Respondent's agents,
nor had she received such a reprimand previously.
Respondent contends that Luhrs' reprimand was based
only on her October 26 conduct and not on the October
31 events. I reject this argument as inconsistent with the
written evidence and the conversation that occurred
during the counseling session. The General Counsel has
established that Respondent gave Luhrs her reprimand
upon her return from attendance at the representation
hearings. Luhrs' testimony that she had regularly left her
area in the past under similar circumstances was uncon-
tradicted, as was her testimony that employees and su-
pervisors regularly discussed nonwork related matters,
such as the sale of Amway products at the facility,
during worktime. It further appears the reprimand was
selectively administered, for Respondent knew Morrison
:~ The lavatory enltrance is located in a cloakroom which is reached
by passing through a ulilit room here soiled laundry is stored. The
lavatory is not marked at its entrance in !he utility room The utility
room is entered from the main hallway and is marked as a utility room.
Luhrs testified that she had never seen a patient use the lavatory It is
clearly not designed for public or patient use. I find that the lavatory is
not a patient care area and that patients would have no likely occasion
either to use the facility r to oxerhear conversations occurring therein.
106
PRESBYTERIAN/ST. LUKE'S MEDICAL. CENTER
was also involved in the October 31 conversation, but
the record does not reflect that she was reprimanded.
Based on all of the above, I find that the reprimand
was a selective application of Respondent's invalid no-so-
licitation rule, applied to a known union activist. While I
have found the no-solicitation rule in force in late Octo-
ber to be fatally vague, my finding here does not depend
on the validity of that finding, although it is augmented
by it. Even were the rule valid on its face, it was clearly
not applied to all solicitation or even to all employees
engaged in the conduct. Rather, I find that Luhrs, like
Hammond before her, was closely watched after her ab-
sence to attend the representation hearings and that Re-
spondent seized on these events as a pretext to issue a
reprimand. Such a reprimand was clearly just another ex-
ample of a course of conduct by Respondent designed to
discourage the union support of Luhrs and to serve as an
example to other employees of the consequences of sup-
porting the Union. Therefore, I find that Respondent, by
reprimanding Luhrs, violated Section 8(a)(3) and (1) of
the Act.
4. The reprimand of Judith Inselman
Judith Inselman was employed by Respondent as an
LPN. On January 14, 1980, she received a written repri-
mand which referred to two documents regarding De-
cember events. The first was a handwritten memoran-
dum to Director Robinson dated December 11 from RN
Supervisor Laycob describing a perceived unsatisfactory
performance by Inselman in failing to provide a dis-
charged patient with home care instructions on Decem-
ber 10 and in the patients' unhappiness with Inselman's
general attitude. The second was a handwritten memo-
randum dated December 9 from RN LaFleur concerning
her perception of Inselman's inadequate attitude at work
that day. Director Robinson prepared and dated her rep-
rimand on December 26. She did not meet with Inselman
or issue her the reprimand until January 14, 1980. Insel-
man was an observer for the Union at the January 10
election.
Robinson testified that she delayed the implementation
of the reprimand for two reasons. The first reason was
scheduling difficulties during the holiday period, which
made it difficult to meet with Inselman. The second was
the fact that Robinson knew Inselman was a union sup-
porter, and she did not want to "irritate" Inselman or
cause "distress on her part in terms of the hospital," thus
"swaying" the January 10, 1981, election.
While there was disagreement between the parties con-
cerning the propriety of Inselman's omitting to give
home care instructions to a patient who was to have the
subsequent care of a home nurse, I do not reach the issue
of the reasonableness of Laycob's displeasure as ex-
pressed in the December 11 memorandum beyond find-
ing that there is no reason to believe that Respondent's
agents were not being truthful in asserting that they be-
lieved the instructions were required. I do not find this
criticism of Inselman, whether fair or not, to be evidence
of an ulterior motive of Respondent in reprimanding her.
Given this finding, the existence of two complaining
documents not initiated by Robinson, and Laycob's lack
of knowledge of Inselman's union activities and support,
I find there is no persuasive evidence of impropriety in
issuing the reprimand. Nor do I find that in the timing of
its issuance, admittedly for purposes of avoiding trouble
concerning the January 10 election, there is evidence of
bad motive. I find no violation here. The General Coun-
sel's evidence as to this allegation is simply insufficient to
meet his burden of proof. Accordingly, I shall dismiss
this allegation of the complaint.
5. The employee poll and wage increases
There is no dispute that in September Respondent an-
nounced that an attitude survey among employees at its
facilities would be conducted. Respondent also informed
employees that the survey results would be utilized to
assist Respondent in making anticipated changes in wage
and fringe benefits. In mid- or late October, Respondent
conducted an elaborate survey inquiring into employee
attitudes concerning their conditions of employment;
some 3,000 employees at Respondent's three facilities re-
ceived questionnaires. Significant wage increases were
put into effect in early September and again in Decem-
ber. Fringe benefit changes followed in January 1980.
Counsel for the General Counsel contends that the
poll was conducted "in order to determine [employee]
union sympathies and to solicit and remedy their griev-
ances concerning wages, hours and working conditions."
He further contends that the December wage increases
and the subsequent fringe benefit increases were given to
discourage employees' union activities and were there-
fore illegal. Clearly, Respondent's survey questionnaire
was, at least in part, a solicitation of employee griev-
ances, and the announced purpose of the survey carried
the implication that these grievances would be reme-
died.27 So, too, the wage and fringe benefit increase oc-
curring before the January 1980 election admittedly re-
sponded in part to the survey results and fell at a time
when an inference may be drawn that it was designed to
interfere with the forthcoming election.28 By these es-
sentially uncontroverted facts, the General Counsel has
established a prima facie violation in each instance. Re-
spondent does not deny the prima facie case, but alleges
past practice and business necessity as an affirmative de-
fense. Given the innocent survey, Respondent argues, it
was proper to base its wage and fringe benefits thereon.
Respondent argues that the July merger of two large
entities into a single organization required, inter alia, a
standardization of wage levels and fringe benefits be-
tween facilities.
In May, Respondent told the St. Luke's employees
that the coming merger would include a wage scale con-
solidation and ultimately a new fringe benefit package.
The September wage increases were a result of a wage
consolidation process. 29 Respondent contends the Janu-
ary fringe benefit increases were at least in part another
aspect of this consolidation. The wage increase in De-
cember and the fringe benefit increase were, in part, Re-
27 St. Jo.seph IHospital of the Franciscan Sisters of MilwauAee. Itc.. 247
NLRB 869 (1980.
2 Idaho Candy Comnpuly. 218 NLRB 352 (1975)
t' The Gieneral Counsel has not alleged his wage increase as a siola-
tion nor would I find it as such
107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent argues, consistent with the past practice of
granting annual December wage and fringe benefit in-
creases at each of the premerger entities.
With respect to the survey, Respondent first asserts it
had used a similar instrument in 1976 at St. Luke's.
Second, it argues the survey was given to all employees
at each facility so that Respondent could match the reor-
ganized, standardized working conditions to overall em-
ployee wishes. Thus, Respondent's claim is that its
changes in wages and fringe benefits were (1) consistent
with past practice and (2) justified by the business neces-
sity of the merger of entities with differently remunerat-
ed groups of employees. Given the merger and the fact
that changes were to occur, Respondent argues the
choice of an attitude survey was a logical, business-relat-
ed decision free from union considerations.
I find that, by the above facts, Respondent has suc-
cessfully rebutted any presumption of impropriety in the
timing of the December wage increases. A pattern or
history of December wage increases exists and was not
directly contested by the General Counsel. While it is
true that in 1979 wage increases had also been granted in
September, these earlier increases were based on the con-
solidation of the various wage scales among the now
merged facilities and were not across-the-board increases.
So, too, the fringe benefit changes, while perhaps suspi-
cious in their timing, have business justification and are
consistent with historical precedent. Further, before it
had knowledge of union activity, Respondent told em-
ployees that fringe benefits would be coordinated among
the merged facilities and that this would be accomplished
in January 1980. Respondent's merger made it a business
necessity to coordinate fringe benefits at the facilities.
The complexities of such coordination well explain the
delay from the July merger to the January 1980 changes.
I have found that the timing of the wage and fringe
benefit changes was free of any wrongful motivation,
even given the Board's presumption of impropriety con-
cerning changes during the period immediately preced-
ing an election. It remains appropriate to examine the
motivations underlying the employee survey. If the
survey is independently violative of the Act, it follows
that the amounts and form of the changes, separate and
apart from the timing of the increases, are a violation.
This is so because there is no doubt that the form and
amounts of the changes were, at least in part, based on
the employee survey responses.
Although the record is sadly lacking in specific details
of the timing of Respondent's decision to commission an
outside firm to prepare an attitude survey of its employ-
ees, it is clear that the decision was made before Septem-
ber 25, but after Respondent had knowledge of employee
organizational activity at the St. Luke's facility. Several
factors suggest that the decision to conduct a survey was
justified for business reasons independent of impermissi-
ble union considerations. Respondent was in the process
of implementing a preorganizational decision to standard-
ize employee wage and fringe benefits and other policies
and practices. Such transition would logically call for an
employee poll because various choices of fringe benefits
could be presented to employees from among those al-
ready existing at three facilities, and at a time of change
it would be easier to introduce new programs or policies.
While less persuasive as evidence of the legitimacy of the
survey, Respondent showed that the poll was conducted
at each of the three facilities, thus diminishing the likeli-
hood that it was implemented to thwart organization at
only St. Luke's. Finally, although of less weight because
Respondent did not make a complete record of the
event, it had used an employee questionnaire in 1976.
The General Counsel and the Charging Party argue
that (1) the timing of the decision and the implementa-
tion of the polling process and (2) the way in which Re-
spondent publicized the poll show that Respondent's
motive in conducting it was to undermine the Union.
The General Counsel correctly points out that Respond-
ent clearly informed employees that the poll results, i.e.,
their answers, would affect their benefits.30
Were the above all the evidence before me I would
find the issue a close one and the result not free from
doubt. However, such is not the case.
As the Supreme Court noted in NL.R.B. v. Exchange
Parts Company, 375 U.S. 405 (1964), other unlawful con-
duct may be used to weigh employer motivation con-
cerning actions undertaken during an organizational
period. I have found, supra, a series of actions by Re-
spondent in the relevant period which convinces me that
Respondent was opposing the union organizational cam-
paign with vigor and without the limits of the Act. Con-
sidering this evidence in conjunction with the evidence
above, I find that Respondent, knowing it had changes in
the offing, embarked on a process of soliciting employee
grievances and promising their consideration if not solu-
tion-that process was the employee survey. I find that
it was the union campaign, and not the business necessity
of standardizing working conditions, which precipitated
the decision to commission and administer the survey
and to hold out the survey with a concomitant promise
of fruitful results. I find therefore that the survey violat-
ed Section 8(a)(1) of the Act-as a solicitation of em-
ployee grievances and promise to remedy those griev-
ances for the purpose of undermining employee support
for the Union.
Given this threshold finding, I find the amount and
form of the wage and fringe benefits-not the timing-at
year's end also violate Section 8(a)(l) of the Act. This is
so for the form and type of the changes were admittedly
based in part on the results of the illegal survey.
30 In a September 25 distribution to employees discussing the survey,
Respondent noted:
The purpose of the survey is to learn how you feel about policies,
practices, your supervisor and your fellow employees. As you know
we are in the process of developing a single benefit program, single
set of policies and uniform system of employment practices. The
input of all of our staff is important to us in making the decision as
to how this should be done. We need your help and your advice.
In an October 19 distribution to employees. Respondent noted:
I would emphasize, however, that NO FINAL DECISIONS will
be made regarding the specific fringe benefit structure until 'we have
received the analysis of the attitude survey for all employees which
is now underway. The results of the survey will be a major factor
taken into consideration in arriving at a final benefit design.
108
PRESBYTERIAN/ST. LUKE'S MEDICAL CENTER
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall order that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent discharged Hammond
in violation of Section 8(a)(3) and (1) of the Act, I shall
order that Respondent offer her reinstatement and make
her whole for any loss of wages and other benefits re-
sulting from her discharge by payment to her of a sum of
money equal to the amount she would have earned as
wages and other benefits from the date of her discharge
to the date on which reinstatement is offered, less net
earnings during that period. The amount of backpay
shall be computed in the manner set forth in F: W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977); see also Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Having found that Respondent reprimanded or warned
employees Luhrs, Bishop, Sherrill, and Bitzer in viola-
tion of Section 8(a)(1) of the Act, I shall order Respond-
ent to rescind said reprimands and expunge all references
thereto from the employees' personnel files.
I shall further order that Respondent preserve and,
upon request, make available to the Board or its agents,
for examination and copying, all payroll records, social
security records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under this Order and to other-
wise insure compliance with this Order.
V. THE UNION'S OBJECTIONS TO THE ELECTION
A. Recommendations Based on the Unfair Labor
Practice Findings
The Union's objections in part cover matters dis-
cussed, supra, in my analysis of the unfair labor practice
allegations. To the extent an unfair labor practice has
been found to have occurred during the period between
the filing of the petition on October 5 and the election
on January 10, 1980, and to have involved employees
within the technical bargaining unit or may reasonably
be expected to have had an impact on them, the viola-
tions also constitute meritorious objections. Dal-Tex Opti-
cal Company, Inc., 137 NLRB 1782 (1962). Based on
those earlier findings, I recommend that the following
objections be found meritorious: II, III(a), (c), and (f),
VI, and IX.
While employee Hammond was not within the techni-
cal unit, I find the circumstances of her discharge, as
well as the prominent role she played in the Union's or-
ganizational campaign, caused her illegal discharge to in-
fluence the election. Accordingly, I recommend that
merit be found to Objection III(b).
Although originally alleged as unfair labor practices in
the complaint, certain allegations were withdrawn by the
General Counsel at the commencement of the hearing.
The parallel objections also lack record evidence to sup-
port them. Accordingly, I recommended that the follow-
ing objections be overruled: Il(d) and (e).
The remaining objections, covering matters not dealt
with directly supra, will be discussed seriatum.
B. Other Recommendations
1. Objection I: The Employer Jailed and refused to pro-
vide an election eligibility list meeting the minimum require-
ments established by the Board.
The Petitioner contends correctly that the Employer
submitted a preelection list of employee names and ad-
dresses which disclosed only the last names and first ini-
tials of employees. No contention was made that the list
was otherwise improper or incorrect. The Petitioner
argues that the large number of employees, the large
number of separate employee classifications in the unit,
and the fact that two elections were being conducted si-
multaneously in separate units made the abbreviated
names difficult to use.
As Respondent has noted, the Board has addressed
cases where initials were substituted for given names by
employers in election eligibility lists. While not condon-
ing such conduct the Board has held that, without evi-
dence of bad faith or gross negligence, an election will
not be set aside on the basis of such a deficiency. Days
Inns of America, Inc. and Nortico Corporation, 216 NLRB
384 (1975). The Petitioner, however, asserts further that
the Employer deliberately blocked out the names of em-
ployees-other than the last name and first initial-from
a computer list in order to impede the Charging Party's
ability to communicate with employees.
I have examined the employee lists for both units; the
lists, in their entirety, were placed in evidence. I find
that each list was a computer printout which originally
contained employee given names, but that, before sub-
mission to the Board's Regional Office for transmission
to the Charging Party, all but the first initials of such
names were physically blocked out by the Employer. 3 '
The fact that the Employer had more complete names
on the very document it submitted to the Board, but first
blocked out given names save for first initials, is unrebut-
ted evidence that the decision by the Employer to submit
an abbreviated list was deliberate and calculated. It is
distinguishable from situations where abbreviations are
used or deletions made in copying from a more complete
list. The Board has recently restated its standard for po-
licing its requirements of an election list:
The rule in Excelsior is simple and easy to adminis-
ter, and while the Board has not been slavish in set-
ting aside elections because of some [deviations]
from its guidelines, it has not favored such devi-
ations, nor has it abdicated its responsibility to mon-
itor compliance with the Excelsior standard to maxi-
mize communication to employees and to insure
that its election processes are not the subject of cal-
culated disregard, on willful or substantial devi-
ations. 32
'3 As part of his opening statement. counsel for the Charging Party
announced its theory of objection as Io the employee list. The Charging
Party introduced the election lists into evidence but no party adduced
evidence concerning their preparation or alteration by Respondent.
: Cntre E ngineering, Inc.. 253 NLRB 419, 424 (1980).
109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here I find as the Board found in Centre, supra, that
the Employer prepared its Excelsior3 3 list in bad faith. It
took affirmative action to improperly limit the informa-
tion Respondent was required to submit. I find that such
conduct warrants setting aside the election. I therefore
recommend that the Union's objection be sustained.3 4
2. Objection 111(g): Objection Il(g) is a catch-all ob-
jection with no specific allegation appearing on its face.
On brief Respondent addresses under this objection the
evidence adduced covering a reprimand issued to Gloria
Shea for using hospital equipment to type a personal
letter. This allegation is not specifically pleaded else-
where in the objections or in the complaints. The Charg-
ing Party, which adduced the testimony, argues that the
Shea incident is a violation of the Act, as opposed to ob-
jectionable conduct, but the General Counsel does not
mention the incident on brief.
Irrespective of the effects on employee Section 7
rights, the Shea incident was not before me as a violation
of the Act. I make no finding with respect thereto. As an
objection, Respondent correctly points out that Shea was
at all times a registered nurse in the registered nurse unit
and not in the technical unit. Further, there is no evi-
dence that technical unit employees were aware of her
reprimand. Thus, no evidence exists that employees in
the unit were affected thereby. On this basis, I recom-
mend that Objection Il(g) be overruled. 3 5
3. Objection IV: The Employer, by and through its su-
pervisory nurses, interfered with the employees' right to wear
union buttons.
Credible evidence was introduced that in mid-Novem-
ber a nonunit employee was asked by a supervisor about
the meaning of the button the employee wore. The
button bore the logo of the Union but no other identify-
ing mark. These buttons were not intuitively obvious on
their face. Other testimony was received noting other in-
terrogations concerning the meaning of black tape over
union buttons.
I find that there was no objective evidence indicating
that the button queries were not based on genuine igno-
rance and curiosity. Nor was there evidence that it was
unreasonable for the questioners to have an innocent pur-
pose for the questions. The buttons themselves carried no
clue as to meaning. Such conduct must therefore be held
to be innocent. Further, Respondent correctly points out
that the employees involved were nonunit employees and
there is no evidence that unit employees were aware of
the matter. Based on all of the above, I recommend that
Objection IV be overruled.
4. Objections V, VII, VIII, and X: The Employer un-
lawfully interrogated employees in closed door (individually
and in groups) meetings about their support for the Union
and solicited and promised to remedy grievances and threat-
ened loss of benefits if employees selected the Union as their
representative.
as Excelsior Underwear. Inc. and Saluda Kniting. Inc.. 156 NLRB 1236
(1966).
34 I shall also recommend that the Regional Director require that the
Employer, in submitting any future election eligiblity list, include the
complete names of employees, if available.
35 Were it necessary to do so, I would further find that the objection is
without merit because there is insufficient evidence to find that Respond-
ent took the action it did because of the employee's union activities.
The record is clear that such conduct did occur. Criti-
cally lacking, in my view, however, is any evidence that
Lenz or the task force-as separate and apart from other
actions found violative-were motivated by the union
organizational campaign. There is evidence that Lenz be-
haved consistently with his preorganizational perform-
ance as a manager. So, too, the Union has not introduced
nor does the record otherwise contain evidence sufficient
to meet its burden of proof in showing that the task
force was a reaction to organization rather than a busi-
ness tool utilized by Respondent independent of the elec-
tion campaign.3 6
Nor has the Union established, in the nonwritten com-
munications at issue here, that Respondent committed
objectionable conduct other than previously found supra.
The issue here is not one of credibility-for the Union's
witnesses were credible-but of substance. Accordingly,
I find that the Union has failed to adduce evidence of
conduct affecting the unit as described in the above-cap-
tioned objections. Accordingly, I recommend that the
objections-as to the unwritten communication herein
discussed-be overruled.
5. Objection XI: The Employer has made numerous ma-
terial misrepresentations, including reproduction of a ballot
marked "neither. "
The day before the election Respondent distributed to
employees a memorandum addressing the election. After
setting forth the ballot language of the three-party elec-
tion, the memorandum correctly sets forth the physical
arrangement of the language on the ballot with the
option boxes illustrated. As a separate paragraph immedi-
ately below this illustration, the memorandum contained
the statement, "To vote against union representation and
for the hospital, put an 'X' in the 'Neither' square." Im-
mediately centered below this one sentence paragraph, a
blank box marked "Neither" was filled with a large X.
Additional paragraphs addressing the ballot and election
followed.
The Charging Party does not argue this objection on
brief. Respondent correctly notes that the Board zealous-
ly guards against any likelihood of confusion by employ-
ees who might construe misuse of official Board forms or
language as an official Board endorsement of a particular
party. The letter in question does not improperly com-
mingle Board language with its partisan message. Hall-
Brooke Hospital, a Division of Hall-Brooke Foundation,
Inc., 244 NLRB 618 (1979). Accordingly, I recommend
that this aspect of Objection XI be overruled.
6. There remains the residual objections concerning the
Employer's written literature.
The Charging Party placed into evidence various doc-
uments from the Employer's election material. Through
its various objections the Union seeks a finding that the
letters or documents constitute misrepresentations,
threats, promises of benefits, wrongful solicitations, etc.
After reviewing the documents introduced into the
record, and disregarding those subsumed in the violations
and meritorious objections previously found, I find no
additional material which on this record rises to the level
36 The Employer's written communications are discussed separately
infra.
110
PRESBYTERIAN/ST. LUKE'S MEDICAL CENTER
of objectionable conduct. The Union points out correctly
that Respondent told employees that, if the Union were
certified in a unit which the Employer deemed inappro-
priate, then the Employer would refuse to bargain in
order to test the Board certification in the U.S. Circuit
Court of Appeals. This being the only manner in which,
under present law, a certification may be tested, and
absent other tainting language not present in Respond-
ent's literature, I find that the Employer's statement is
not objectionable conduct.
Accordingly, I find no additional objectionable con-
duct other than that found supra.
C. Objection Summary and Recommendation for New
Election
Based on all of the above, I have recommended that
the following objections be overruled: III(d), (e), and (g),
IV, V, VII, VIII, X, and XI. I have recommended that
the following objections be sustained: I, 11, Il(a), (b),
(c), and (f), VI, and IX.
In view of my recommendation that certain of the
Union's objections have merit and should be sustained, I
recommend that the results of the election held on Janu-
ary 10, 1980, be set aside and that Case 27-RC-5934 be
remanded to the Regional Director for Region 27 for the
purpose of conducting a new election at such time as he
deems the circumstances permit the free choice of a bar-
gaining representative.
I further recommend, in light of my previous findings
and my determination that Respondent's conduct was de-
signed to and succeeded in interfering with the employ-
ees' exercise of a free and reasonable choice in the Janu-
ary 10, 1980, election, that the Regional Director include
in the notice of election to be issued the following para-
graph consistent with the Board's decisions in The
Lufkin Rule Company, 147 NLRB 341 (1969), and Bush
Hog, Inc., 161 NLRB 1575, 1578 (1966):
Notice to All Voters
The election conducted on [January 10, 1980,] was
set aside because the National Labor Relations
Board found that certain conduct of the Employer
interfered with employees' exercise of a free and
reasoned choice. Therefore, a new election will be
held in accordance with the terms of this notice of
election. All eligible voters should understand that
the National Labor Relations Act, as amended,
gives them the right to cast their ballots as they see
fit, and protects them in the exercise of this right,
free from interference by any of the parties.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and is a health care institution within the meaning of
Section 2(14) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Interrogating employees concerning their union or
other protected concerted activities.
(b) Promulgating, maintaining, and enforcing against
the union or other protected concerted activity of em-
ployees overly broad/vague and ambiguous no-
solicitation/no-distribution rules.
(c) Threatening employees with the enforcement of
the above rules.
(d) Polling employees with regard to their grievances
concerning wages, hours, and working conditions, and
creating the impression that such grievances would be
satisfied in order to discourage employee support for the
Union.
(e) Granting wage and fringe benefit increases to em-
ployees in order to discourage their support for the
Union.
4. Respondent violated Section 8(a)(3) and (I) by
taking the following actions against the below-named
employees because of their union activities:
(a) Discharging and thereafter refusing to reinstate em-
ployee Hammond.
(b) Reprimanding or issuing written warnings to the
following employees:
Bishop
Sherrill
Bitzer
Luhrs
Hammond
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Except as specifically found above, Respondent has
not violated the Act.
7. The objections found to be meritorious in the sec-
tion entitled "The Union's objections to the Election,"
supra, constitute grounds for setting aside the election in
Case 27-RC-5934.
On the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER3 7
The Respondent, Presbyterian/St. Luke's Medical
Center, Denver, Colorado, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining, or enforcing any rule,
regulation, or other prohibition against employees who
solicit on behalf of any labor organization on hospital
premises and in other than immediate patient care areas
and in specifically identified areas where employee solici-
tation has an unreasonable effect on patient care, during
employees' nonworking time by means other than a
clear, unambiguous rule limiting or prohibiting solicita-
tion.
(b) Threatening or warning employees about violations
of no-solicitation rules not in conformance with item I
(a) supra.
37 In the event no exceptions are filed as provided by Sec. 1024b of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed s'aived for all purposes.
III
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Interrogating employees concerning their union or
other protected concerted activities.
(d) Polling employees by means of a survey concern-
ing their grievances regarding wages, hours, and work-
ing conditions and creating the impression that such
grievances could be satisfied in order to discourage em-
ployee support for St. Luke's Federation of Nurses and
Health Professionals or any other labor organization.
(e) Granting wage and fringe benefit increases to em-
ployees in order to discourage employee support for any
labor organization.
(f) Discharging employees because of their union ac-
tivities.
(g) Reprimanding or warning employees because of
their union/protected concerted activities.
(h) In any like or related manner interfering with, re-
straining, or coercing 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) Offer Lauren Hammond full reinstatement to her
former job or, if said job no longer exists, to substantially
equivalent employment, without prejudice to her senior-
ity and other rights and privileges, and make her whole,
with interest, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Rescind and expunge from employee personnel re-
cords the written warnings to/reprimands of, and all ref-
erences thereto, the following employees:
Harlan Bishop
Marcia Sherrill
Kathy Bitzer
Sharon Luhrs
Lauren Hammond
(c) Rescind any and all rules restricting employee so-
licitation which are not clearly and unambiguously
worded and which limit employee solicitation to times
other than working time and to areas other than immedi-
ate patient care areas and specifically identified areas
where employee solicitation has an unreasonable effect
on patient care.
(d) 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, and all other re-
cords necessary to analyze the amount of backpay due
and to otherwise insure compliance with this Order.
(e) Post at its St. Luke's Hospital facility copies of the
attached notice marked "Appendix." 38 Copies of said
notice, on forms provided by the Regional Director for
Region 27, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent's immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by to insure that
said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the Union's ojec-
tions to the election held by the Board in Case 27-RC-
5934 which were found meritorious in the section of this
Decision entitled "The Union's Objections to the Elec-
tion" be sustained, that the results of said election be set
aside, and that said case be remanded to the Regional
Director for Region 27 for the purpose of conducting a
new election at such time as he deems the circumstances
permit the free choice of a bargaining representative and
with a notice of election consistent with the section of
this Decision entitled "The Union's Objections to the
Election," including the requirement of complete em-
ployee names, as available, in any election eligibility list
subsequently required.
38 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
112