Springfield Hospital

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 643 (N.L.R.B. 1986)

SPRINGFIELD HOSPITAL
Springfield Hospital and New England Health Care
Employees Union, District 1199, National
Union of Hospital and Health Care Employees,
Retail, Wholesale & Department Store Union,
AFL-CIO. Cases 1-CA-19299, 1-CA-19635,
1-CA-21193, 1-RC-17475, and 1-RC-17476.
30 September 1986
DECISION, ORDER , CERTIFICATION
OF REPRESENTATIVE, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 19 June 1985 Administrative Law Judge
Leonard M . Wagman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and a supporting brief, an answering brief to
the Respondent 's exceptions , and a brief in support
of the judge's decision . The Union filed a brief in
opposition to the Respondent 's exceptions. Addi-
tionally, the Respondent filed a motion to sever
and dismiss the representation cases and the Union
filed a brief in opposition to the Respondent's
motion.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings,' findings,2
i The Respondent filed a motion to sever and dismiss Cases 1-RC-
17475 and 1-RC-17476 based on the Petitioner 's failure to hold a unit-
wide disaffiliation vote when it withdrew from the Retail, Wholesale &
Department Store Union (RWDSU) and directly affiliated with the
AFL-CIO . In view of the recent U.S. Supreme Court holding in NLRB
v. Financial Institution Employees, 475 U .S. 192 (1986), that the Act does
not require that nonmembers be allowed to vote in affiliation elections,
we find that the Petitioner 's failure to conduct a unitwide disaffiliation
vote in the instant case does not preclude our certifying the Union in
Case 1-RC-17475 and directing a second election in Case 1-RC-17476.
We agree with the judge that there has been no change in the essential
identity of the bargaining representative as a result of the structural
change.
Accordingly, we adopt the judge 's ruling denying the Respondent's
motion to sever and dismiss the representation cases.
2 The Respondent and the General Counsel have excepted to some of
the judge's credibility findings . The Board's established policy is not to
overrule an administrative law judge 's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cit. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In concluding that the Respondent violated Sec . 8(ax3) and (1) of the
Act by reducing the hours of employee Barrell, the judge found that Bar-
rell's work schedule was reduced by 4 days , 24, 25 , 26, and 29 November
1981, respectively. The evidence presented , however , indicates that Bar-
tell was originally scheduled to work , and indeed reported for work, on
6 December . It is unclear whether Bartell was permitted to work that
day. We shall therefore leave to the compliance stage the determination
of the number of hours Barrell's schedule was unlawfully reduced.
643
and conclusions and to adopt the recommended
Order as modified.4
1. We disagree with the judge 's finding that the
Respondent violated Section 8(a)(1) of the Act
when Patient Accounts Manager Fotter questioned
employee Israel why she was a union supporter
and why she was "doing this to him." Israel wore
a union button and actively assisted in the Union's
organizing campaign . The conversations took place
in the open at Israel 's receptionist station. In these
circumstances we conclude that Fotter's inquiry
would not have reasonably coerced Israel in the
exercise of her rights under the Act. Rossmore
House, 269 NLRB 1176 (1984). Therefore we shall
dismiss this allegation.
We also disagree with the judge's finding that
Supervisor Anna Herold unlawfully questioned em-
ployee McMillen when she asked "do you think
you're being a good Christian by voting for the
Union?" Herold 's remark was nothing more than a
rhetorical question that could not have reasonably
coerced McMillen in the exercise of her rights,
even taking into consideration the context in which
it was made . Therefore, we shall dismiss this alle-
gation.
2. The judge found that the Respondent violated
Section 8(a)(1) of the Act by granting wage in-
creases to three outpatient receptionists and a
switchboard operator for the express purpose of
persuading them to vote against the Union in the 4
February 1982 representation election . We dis-
agree.
9 We agree with the judge that the Respondent violated Sec. 8 (axl) of
the Act by selectively enforcing its no -solicitation rule against off-duty
employees soliciting on behalf of the Union . In addition, we also find that
the Respondent's no-solicitation rule promulgated on 1 August 1981, pro-
hibiting solicitation "in working areas without prior written approval
from the administrator," constituted an unreasonably broad restriction to
the extent it prohibited solicitation in work areas not devoted to patient
care. See St. John 's Hospital, 222 NLRB 1150 (1976). Consequently, we
find the Respondent also violated Sec. 8(a)(1) by maintaining this invalid
rule.
In agreeing with the judge that the Respondent violated Sec. 8(aXl) of
the Act by maintaining an invalid no-access rule, Chairman Dotson does
not rely on the judge's finding that the no-access rule was not clearly
disseminated . In his view , the rule was adequately disseminated when the
Respondent placed the rule in the department manuals and held depart-
mental meetings at which time the manual was made available and em-
ployees were told they were "responsible for it" or should "familiarize
themselves with it."
4 We note that the judge inadvertently omitted from his proposed
notice any reference to par. 1(k) in his Order that the Respondent cease
and desist from "promulgating , maintaining , and enforcing a no-access
rule designed to thwart the union activities of off-duty employees on the
Respondent 's premises." We shall modify the notice accordingly. Finally,
we note that although the principle for which the judge cited Sub-Zero
Freezer Co., 265 NLRB 1521 (1982 ), is still valid law, the Board has since
vacated its Decision and Order in that case . See Sub-Zero Freezer Co.,
271 NLRB 47 (1984).
281 NLRB No. 76
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Outpatient Receptionists
The uncontradicted testimony of Director of Fi-
nance Charles Vogt, Assistant Director of Person-
nel Susan Jacques, and Patient Accounts Manager
Robert Fotter established that in August 1981
Fotter and Jacques decided to hire two additional
outpatient receptionists for the hospital. Through-
out the month Jacques and Fotter engaged in dis-
cussions indicating their desire to hire the new re-
ceptionists at a higher rate and to eventually up-
grade the pay rate for the whole department. The
average pay for an outpatient receptionist was
under $4 per hour; admitting receptionists, per-
forming similar tasks, were earning as high as $5.25
per hour. With this in mind, Jacques offered appli-
cant Linda Rounds $4.50 per hour. Vogt, on being
notified of the offer made to Rounds, initially re-
jected that rate as too high,5 but later agreed to
start Rounds at $4.02 per hour and raise her rate to
$4.50 at the end of a 3-month probation period.
Additionally, it was decided that at the end of the
probation period the three existing receptionist's
rates would also be raised so as not to create in-
equities in tenure and wages. The 3-month delay
enabled the Respondent to wait until after all the
employees received their annual 1 October review
and wage increases before deciding on an appropri-
ate amount of readjustment to cure any disparity in
wages.
The Respondent hired Rounds on 5 September
1981 and 3 weeks later hired a second receptionist
under identical terms. On 21 December, after the
receptionists' probationary period ended, reception-
ist Gay's wage rate was readjusted to $5 per hour,
Cenate's to $4.65 per hour, and Israel 's to $4.85 per
hour. 6
Contrary to the judge, we find that the readjust-
ment of the current outpatient receptionists' pay
rates was not intended to interfere with their free-
dom of choice in the election. Rather, the decision
was part and parcel of the Respondent's legitimate
business decision to hire two new receptionists at a
higher rate and to commensurately upgrade the
rate of pay in the existing job classification to bring
it in line with other receptionist classifications in
the hospital. The decision to hire the new recep-
tionist and the decision to readjust the wages were
made almost a month before the representation pe-
titions were filed. Furthermore, the Respondent
had twice before made nonannual wage adjust-
ments and the increase, which affected only 3 out
5 The starting rate for outpatient receptionists at that time was $3 75
per hour.
6 Prior to this readjustment and the I October annual increases, Gay,
Cenate, and Israel were earning $4 09, $3 75 , and $3 65 per hour, respec-
tively
of 103 employees in the unit, was not used by the
Respondent as election propaganda to sway em-
ployee votes. In this context, we find that the wage
readjustment was not designed to interfere with the
employees' free choice in the election. According-
ly, we shall dismiss this allegation of the complaint.
Switchboard Operator Temple
As a switchboard operator, Temple performed
both switchboard and admissions functions. In Sep-
tember 1981, the Respondent's chief switchboard
operator, Young, evaluated Temple's performance
as "very unsatisfactory," based on complaints re-
ceived about her performance of admissions tasks.
The evaluation, however, indicated that she han-
dled her switchboard functions efficiently and
without any problems. Young attributed Temple's
poor performance of admission functions to the
fact that "she just didn't want to do admissions."
Nonetheless, Temple was given an 8-percent
annual increase and told that her admissions work
had to improve and if it did she would be reevalu-
ated.
After seeing a marked improvement in Temple's
admissions performance in late September and
throughout October and November, Young re-
quested and received permision in late November
to reevaluate Temple, which she did in December
1981. Temple received a 10-percent increase.
We do not agree with the judge's conclusion that
the reevaluation of Temple was motivated by a
desire to influence her vote in the election. As part
of Young's initial evaluation of Temple, which oc-
curred before the filing of the petitions and the
height of the union campaign, Temple was told
that if her performance improved she would be re-
evaluated. Nonannual reevaluations of performance
were permitted under the Respondent's personnel
regulations and the Respondent presented evidence
of other nonannual evaluations given to employees
in the past. The judge did not believe Temple's
performance warranted an increase because she re-
ceived the second highest number of complaints in
her department, and because Temple's attitude
toward admissions duties, according to Young's
testimony, remained "defiant." However, Young
also testified that Temple was receiving fewer
complaints than she had in the past and that her
admissions work kept improving.
We find the Respondent, after giving Temple a
below-average evaluation and promising to re-
evaluate her, saw a steady improvement relative to
her prior unsatisfactory performance and rewarded
her as an incentive for continued improvement. As
we noted with respect to the outpatient reception-
ists, it is unlikely that the Respondent desired to
SPRINGFIELD HOSPITAL
affect the election by granting a wage increase to
only a few employees in a unit of 103 employees.
Consequently, we find that the increase given to
Temple was not motivated by a desire to effect the
election results.' Accordingly , we shall similarly
dismiss the relevant aspects of the complaint con-
cerning Ruby Temple.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Springfield Hospital, Springfield, Ver-
mont, its officers , agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(e).
"(e) Maintaining an invalid overbroad no-solicita-
tion rule prohibiting solicitation in working areas,
without written approval."
2. Delete paragraph 1(c) and reletter the subse-
quent paragraphs.
3. Substitute the attached notice for that of the
administrative law judge.
CERTIFICATION OF
REPRESENTATIVE
In Case 1-RC-17475
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for New England Health Care
Employees Union, District 1199 , National Union of
Hospital and Health Care Employees , AFL-CIO,8
and that it is the exclusive collective-bargaining
representative of the employees in the following
unit:
All full-time and regular part-time technical
employees employed by the Employer at its 25
Ridgewood Road , Springfield , Vermont hospi-
tal, including Licensed Practical Nurses, Grad-
uate Practical Nurses, Laboratory Technicians
(Medical Laboratory Technicians), Certified
Laboratory Assistant , Abstractor/Coder I,
r In finding the Respondent 's conduct unlawful , the judge did not pass
on the General Counsel 's contention that the size of the increase was fur-
ther evidence of the Respondent's unlawful conduct . In this regard, we
accept the Respondent 's argument , in the absence of evidence to the con-
trary, that Temple would have received an increase of less than 10-per-
cent had it not been for an inadvertant error made by Assistant Personnel
Director Jacques . Jacques mistakenly gave Young the percentage rates
applicable to end-of-probation employees who did not also receive annual
increases. This error accounts for Temple's receiving a 10-percent in-
crease in December in addition to an 8-percent annual increase in Octo-
ber.
8 The name of the Petitioner, formerly New England Health Care Em-
ployees Union, District 1199 , National Union of Hospital and Health
Care Employees , Retail Wholesale & Department Store Union, AFL-
CIO, has been changed in recognition of the Petitioner's disaffiliation
from the RWDSU and acceptance of a separate charter from the AFL-
CIO effective 1 October 1984.
645
Abstractor/Coder II, Physical Therapy Assist-
ant, X-ray Technicians, Assistant Chief Radio-
logic Technologist, Patient Review Coordina-
tors (Utilization Review Coordinators), but ex-
cluding all other employees , professional em-
ployees, including Registered Nurses and Head
Nurses, Laboratory Medical Technologists,
Laboratory Section Heads, business office em-
ployees, service and maintenance employees,
per diem employees , casual and temporary em-
ployees, guards and supervisors as defined in
the Act.
[Direction of Second Election in Case 1-RC-
17476 omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage you from joining, as-
sisting , or favoring New England Health Care Em-
ployees Union, District 1199, National Union of
Hospital and Health Care Employees , AFL-CIO,
or any other union , by reducing your work hours,
issuing verbal warnings, or by any other discrimi-
nation in regard to your hire or tenure or condition
of employment.
WE WILL NOT expressly or impliedly threaten
you with more onerous working conditions, arrest,
or other reprisals because you support New Eng-
land Health Care Employees Union , District 1199,
or any other union.
WE WILL NOT restrict you from moving about in
the hospital because you support or because we be-
lieve you engaged in conversations in which you
expressed support for New England Health Care
Employees Union , District 1199, or any other
union.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT maintain an invalid overbroad no-
solicitation rule prohibiting solicitation "in working
areas without written approval."
WE WILL NOT discriminatorily enforce our no-
solicitation rules against employees engaged in so-
licitation on behalf of New England Health Care
Employees Union, District 1199, or any other labor
union.
WE WILL NOT maintain or enforce a no-access
rule or policy prohibiting off-duty employees from
entering upon or remaining on our premises or lim-
iting the access of off-duty employees to our prem-
ises, which rule or policy has not been fully pro-
mulgated to all employees.
WE WILL NOT discriminatorily enforce a no-
access rule or policy to permit off-duty employees
to enter or remain on our premises for various pur-
poses but not for union activities or to unlawfully
interfere in any way with our employees' rights to
solicit on behalf of New England Health Care Em-
ployees Union, District 1199, or any other labor
union.
WE WILL NOT promulgate, maintain, or enforce
a no-access rule designed to thwart the union ac-
tivities of off-duty employees on the Respondent's
premises.
WE WILL NOT cause your citation or arrest by
police or discipline you fbr having violated an un-
lawful no-solicitation rule or an unlawful no-access
rule or policy.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Lori Barrell whole for any loss
of pay or other benefits resulting from her removal
from the work schedule during the November-De-
cember 1981 period, plus interest.
WE WILL remove from our files any reference to
Lori Barrell's suspension from work during the
November-December 1981 period.
WE WILL notify her that we have removed from
our files any reference to her suspension, and that
the suspension will not be used against her in any
way.
WE WILL petition the Springfield Police Depart-
ment requesting that it expunge all records related
to citations issued to Judith Bryant, Barbara Davis,
Simone Murray, Roxanne Royce, and Beverly
Camire on 1 February 1982.
WE WILL petition the Springfield Police Depart-
ment requesting that it expunge all records related
to the arrest of Judith Bryant, Barbara Davis,
Simone Murray, and Roxanne Royce on 1 Febru-
ary 1982.
WE WILL remove from our files any reference to
the verbal warning that Susan Jacques issued to
employee Roxanne Royce on 1 February 1982.
WE WILL notify Roxanne Royce that we have
removed from our files any reference to the verbal
warning she received from Susan Jacques on 1
February 1982, and that the verbal warning will
not be used against her in any way.
SPRINGFIELD HOSPITAL
Anthony DaDalt and Avrom Herbster, Esqs., for the Gen-
eral Counsel.
Brian Hayes and James Trono, Esqs. (Skoler, Abbott,
Hayes & Presser, P.C.), for the Respondent and Em-
ployer.
John M Creane and Nancy Donahue, Esqs. (Coughlan,
Creane, Malone & Milne), of Milford, Connecticut, for
the Charging Party and Petitioner.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge.
Upon a charge filed by the Union, New England Health
Care Employees Union, District 1199, National Union of
Hospital and Health Care Employees, Retail, Wholesale
& Department Store Union, AFL-CIO (the Petitioner in
Cases 1-RC-17475 and 1-RC-17476), on 8 March 1982
in Case 1-CA-19635 and an amended charge filed by the
Union on 25 June 1982, the General Counsel, by the Re-
gional Director for Region 1 of the National Labor Rela-
tions Board (the Board), issued a complaint against the
Respondent, Springfield Hospital (the Employer in Cases
1-RC-17475 and I-RC-17476), on 30 June 1982. There-
after, the Acting Regional Director for Region 1 issued a
further order consolidating Case 1-CA-19299 with Case
1-CA-19635. Case 1 -CA-19299 arose from a charge that
the Union filed on 25 November 1981 against the Re-
spondent. Finally, upon a further charge filed by the
Union in Case 1-CA-21193 on 15 July 1983 and an
amended charge filed by the Union on 23 August 1983,
the Regional Director for Region 1 issued a further com-
plaint against the Respondent on 26 August 1983. Upon
the General Counsel's motion, I consolidated Case 1-
CA-21193 with Cases 1-CA-19299, l-CA-19635, 1-RC-
17475 , and 1-RC-17476 by my Order of 26 October
1983. The consolidated complaint, as amended, alleges
that the Respondent engaged in unfair labor practices
violative of Section 8(a)(1), (3), and (4) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq . (the Act).
The Respondent, by answers to the complaint and the
amended consolidated complaint, denied the commission
of the alleged unfair labor practices.
On 16 October 1981 the Petitioner filed a petition for
certification of representative in Cases 1-RC-17475 and
1-RC-17476. Thereafter, pursuant to a Decision and Di-
rection of Elections issued by the Regional Director for
Region 1 on 7 January 1982, two elections were con-
SPRINGFIELD HOSPITAL
ducted among two separate units of the Employer's em-
ployees on 4 February 1982.1
The tally of ballots cast in the election in Case 1-RC-
17475 among the employer 's technical employees
showed that out of 58 eligible voters, 29 voted for the
Petitioner , 26 cast votes against the Petitioner , and there
were 4 challenged ballots . The tally of ballots cast in the
election in Case 1 -RC- 17476, which involved the serv-
ice and maintenance employees , showed that out of 103
eligible voters, 38 cast votes for the Petitioner , 62 cast
votes against the Petitioner , and there was 1 challenged
ballot.
On 10 February 1982 the Petitioner filed timely objec-
tions to the conduct of the election and to conduct af-
fecting the results of the election in Cases 1-RC-17475
and 1-RC-17476. On 11 February the Employer filed
timely objections to the conduct of the election and con-
duct affecting the results of the election in Case 1-RC-
17475.
On 24 June 1982 the Regional Director issued a sup-
plemental decision in which he sustained the challenge to
one ballot and overruled the challenges to three ballots.
A revised tally of ballots issued thereafter in Case 1-
RC-17475 showed that 31 ballots had been cast for, and
27 had been cast against , the Petitioner . As the revised
tally of ballots showed that the Petitioner had received a
majority of the ballots cast , the Regional Director con-
solidated six of the Employer's seven objections with
Case 1-CA-19635 for hearing and determination. The
Employer withdrew its seventh objection . Finally, the
1 The unit that the Regional Director found appropriate for purposes
of collective bargaining in Case 1-RC-17475 is described in his Decision
and Direction of Elections as follows.
All full-time and regular part -time technical employees employed by
the Employer at its 25 Ridgewood Road, Springfield, Vermont hos-
pital, including Licensed Practical Nurses, Graduate Practical
Nurses, Laboratory Technicians (Medical Laboratory Technicians),
Certified Laboratory Assistant, Abstractor/Coder I,
Abstractor/Coder II, Physical Therapy Assistant , X-ray Technicians,
Assistant Chief Radiologic Technologist , Patient Review Coordina-
tors (Utilization Review Coordinators), but excluding all other em-
ployees, professional employees , including Registered Nurses and
Head Nurses , Laboratory Medical Technologists, Laboratory Sec-
tion Heads , business office employees, service and maintenance em-
ployees, per diem employees, casual and temporary employees,
guards and supervisors as defined in the Act.
The unit found appropriate for collective bargaining in Case 1 -RC-17476
is described in the Decision and Direction of Elections as follows:
All full-tune and regular part-time service and maintenance employ-
ees employed by the Employer at its 25 Ridgewood Road , Spring-
field, Vermont hospital, including Laboratory Receptionists , Labora-
tory Secretaries, EKG Technicians, Dietary Aides , Cooks, Bakers,
Salad Preparers , Cafeteria Workers, Dietary Technicians. Dietary
Clerks, Porters, Housekeepers, Floormen , Linen Room Workers,
Seamstresses , Physical Therapy Secretaries , Boiler Room Foremen,
Plumbing Foremen, Maintenance Workers , Painters , Carpenters,
Maintenance Secretaries, Electricians , Nursing Aides, Unit Aides,
Ward Clerks , Orderlies, Central Sterilization Service Technicians,
Storeroom Secretaries , X-ray Receptionists/Secretaries, X-ray Dark-
room Technician Aides , Switchboard Operators , Pharmacy Techni-
cians, Outpatient Receptionists, Chief Outpatient Receptionist, Ad-
mitting Coordinator, Chief Admitting Coordinator , Medical Tran-
scriptionists , Medical Records File Clerk-Microfilm Technician, but
excluding all other employees, including professional employees,
technical employees, business office employees , per diem employees,
casual and temporary employees, confidential employees , the Direc-
tor of Nursing's Secretary, Purchasing Assistants , guards and super-
visors as defined in the Act.
647
Regional Director consolidated 13 of the Petitioner's 16
objections in Case 1 -RC-17476 with Case 1-CA-19635
on the grounds that 11 of the Union's objections either
involved "conduct identical to or similar to conduct to
be alleged [as unfair labor practices] in the complaint."
The Regional Director determined that two other ob-
jections by the Petitioner raised substantial material fac-
tual issues that would be better resolved at a hearing.
The Regional Director also determined that a hearing
was warranted for six Employer objections in Case 1-
RC-17475. The hearing in these consolidated cases was
held before me on various dates in December 1982, in
January, February, March , and November 1983, and in
November 1984 at Windsor, White River Junction, and
Springfield, Vermont.
On the entire record , including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed by the General Counsel , the Respondent-Em-
ployer, and the Petitioner, I make the following2
FINDINGS OF FACT
I. JURISDICTION
The Respondent, at all times material to these cases,
has maintained its principal office and place of business
at Springfield , Vermont, where it operates a nonprofit
community hospital . In the course of its business oper-
ations, the Respondent 's annual gross revenues exceed
$250,000. The Hospital annually purchases goods valued
in excess of $5000 directly from points located outside
the State of Vermont. From these admitted facts, I find
that the Respondent is, and has been at all times material
to these cases, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The Re-
spondent admitted , and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. BACKGROUND AND ISSUES
The Union 's organizing campaign among the Respond-
ent's technical , service, and maintenance employees
began on 11 May 1981. On 13 October 1981 the Re-
spondent rejected the Union's demand for recognition as
exclusive collective -bargaining representative of those
employees . Three days later, the Union filed a represen-
tation petition seeking certification as the exclusive rep-
resentative of a unit of the Respondent 's technical em-
ployees in Case 1 -RC-17475 and for a unit of service
and maintenance employees in Case 1 -RC-17476. On 4
February 1982, pursuant to his Decision and Direction of
Elections issued on 7 January 1982, the Regional Direc-
tor conducted elections in those two units. The issues
presented by the consolidated complaints in Cases 1-
CA-19299 and 1-CA-19635, as amended , are whether in
response to the Union's organizing campaign the Re-
spondent violated Section 8(a)(1) of the Act by:
8 The General Counsel 's motion to correct the transcript is granted.
The corrections are set forth in Appendix B below . [Appendix B omitted
from publication.]
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Promulgating , disseminating , maintaining , and en-
forcing a no-solicitation rule.
(2) Promulgating , maintaining , and enforcing a no-
access rule.
(3) Promulgating, maintaining, and enforcing a no-
access policy.
(4) Enforcing its no-solicitation rule, its no-access rule,
and its no-access policy selectively and disparately
against employees engaged in union activities.
(5) Engaging in surveillance of its employees' union
activities.
(6) Threatening employees with more onerous work-
ing conditions and other reprisals if the Union succeeded
in achieving representative status.
(7) Threatening employees with reprisals because they
engaged in union activity or otherwise supported the
Union.
(8) Restricting the movements of employees because it
believed that they were engaged in union or protected
activity.
(9) Physically restraining an employee and asking her
where she was going.
(10) Expressing hostility toward an employee because
the employee testified adversely to the Respondent at a
Board proceeding.
(11) Granting wage increases to unit employees during
the election campaign.
(12) Coercively interrogating employees concerning
their union activities or sentiments.
(13) Attempting to cause the arrest of a union organiz-
er in the presence of employees.
(14) Causing the arrest of four employees on 1 Febru-
ary 1982.
(15) Telling employees that they could be arrested
anywhere in the hospital.
(16) Causing armed police to be present at its premises
on 3 and 4 February 1982.
(17) Causing armed police to stop and question em-
ployees as they came to work on 4 February 1982.
The complaint also alleges that in the course of the
Union's organizing campaign the Respondent discrimi-
nated against union activists in violation of Section
8(a)(3) and (1) of the Act by issuing a verbal warning to
employee Lori Barrell and reducing her work hours and
by issuing a verbal warning to employee Roxanne
Royce.
Finally, the consolidated complaint and answer in Case
1-CA-21193 present the issues of whether the Respond-
ent violated Section 8(a)(4), (3), and (1) by issuing a writ-
ten and a verbal warning to employee Thomas W. Grant
because he engaged in union activity and because he tes-
tified at the previous hearing in Cases 1-CA-19299, 1-
CA-19635, 1-RC-17475, and 1-RC-17476.
The Employer's objections in Case 1-RC-17475 allege
that the Petitioner engaged in the following conduct that
impaired the employees' freedom of choice and require
that the election in that case be set aside:
(1) A pattern of gross and material misrepresentations.
(2) Impliedly, or directly, threatening employees be-
cause of their proemployer sentiments.
(3) Threatening an individual with bodily harm in the
presence of employees.
(4) Unlawful picketing and other unlawful demonstra-
tions.
(5) Interfering with, restraining, and coercing employ-
ees because of their antiunion sympathies.
(6) Creating an atmosphere of fear and lawlessness
prior to the election.
The Petitioner's objections in Case 1-RC-17476 in-
cluded two allegations not encompassed by the com-
plaint. These two objections were: "11. Distribution of
written campaign literature which contained material
misrepresentation, implicit promises of benefits, and
threats of loss of existing benefits if the union won the
election, and otherwise interfered with the employees'
protected rights" and "14. By unlawful threats, promises,
or coercion influenced the Chief Central Sterile Supply
Technician, Elizabeth Larabee against voting in the elec-
tion despite the fact that the parties stipulated on the
record at the unit hearing that Ms. Larabee could vote
subject to challenge."
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interference, Restraint, and Coercion
1. Surveillance3
a. Facts
For the 8 to 10 years preceding 23 November 1981,
the Respondent's security consisted of a night watchman-
type procedure. From 11 p.m. to 7 a.m. Hannon Security
provided the hospital with watchmen, who patrolled the
premises and punched timeclocks as they went from sta-
tion to station. In addition, the night watchmen collected
trash while making their rounds.
The Respondent's concern about the adequacy of its
security arose during the summer of 1981, first when an
unknown individual broke into an employee's car on a
hospital parking lot and removed a cassette player. An-
other reported incident during that time was an attempt-
ed robbery at Mt. Ascutney Hospital in neighboring
Windsor, Vermont.
In an effort to tighten its security, the Respondent re-
quired Hannon to expand its schedule to begin at 10:45
p.m. and to include the hospital's parking lots in its
rounds. Despite this action, there was a second attempt-
The consolidated complaint in par . 8(e) alleges.
On various dates from November, 1981 to February 4 1982, in the
Hospital discharge area and parking lots, Harry Waidler and other
agents of Respondent whose names are unknown at this time, en-
gaged in surveillance of employees ' union activities or their other
concerted activities conducted for the purpose of collective bargain-
ing, or other mutual aid or protection
On 10 January 1983 I granted the General Counsel's motion to amend
the allegation by substituting "Peter Hofstetter" for "other agents of Re-
spondent whose names are unknown at this time " However, I reaffirm
my refusal on 23 March 1983 to permit the General Counsel to amend
Sec 8(e) of the amended consolidated complaint to include another in-
stance of alleged surveillance on 15 December 1981 involving guard
Thomas LaFond The General Counsel 's motion to amend in this in-
stance came after the Respondent had closed its case The circumstance
and the General Counsel 's concession that the alleged incident had not
been fully litigated required denial of the motion to amend Connecticut
Distributors, 255 NLRB 1255, 1256-1257 (1981)
SPRINGFIELD HOSPITAL
ed break-in involving an automobile parked in a hospital
parking lot during July or August 1981.
During the summer, the Respondent also received re-
ports of increasing union activity among its employees. I
fmd from the uncontradicted testimony of the Respond-
ent's director of support services, Peter Hofstetter, that
the Respondent became aware of telephone calls from
"prounion people" to employees, who were "sort of on
edge a little bit."
I also find from Hofstetter's testimony that the Re-
spondent's concern about security intensified in Novem-
ber 1981 following two incidents related to the Union's
organizing campaign. The first occurred on 13 October
1981 when Union Organizer Sanders and a group of em-
ployees came to the hospital administrator 's office and
demanded recognition based on authorization cards. Hof-
stetter met the group and rejected the demand.
The second incident occurred late on the afternoon of
29 October 1981 . A group of nonemployees from the
nearby community came to the hospital 's front lobby to
express support for the Union's organizing campaign and
to urge the Respondent to sever its relationship with the
law firm of Skoler, Abbott, & Hayes . I find from Hof-
stetter's testimony that during the second or third week
of November 1981 the Respondent decided to retain
Burns International Security Services , Inc. to increase its
security.
The Bums guards began their duties at the hospital on
23 November 1981. From that day until 4 February 1982
a total of four guards, including Harry Waidler and
Thomas LaFond , patrolled the hospital 's premises.
It is undisputed that Bums hired , paid, and assigned
the guards to the hospital, but that the Respondent in-
structed them regarding their duties . The guards wore
civilian clothes, free of sidearms . They identified them-
selves as Bums security guards only by the presence of a
patch on their civilian clothes, which they wore as they
patrolled the hospital 's premises.
I fmd from Waidler 's testimony that the guards looked
primarily to the Respondent 's administrator , Eric Reise-
berg, and its director of support services , Peter Hofstet-
ter, for their instructions . I find from Waidler's testimony
that Hofstetter was responsible for providing the follow-
ing instructions to the guards:
[T]he Burns Security guards were supposed to roam
the hospital , at will, we had no time clocks, or any-
thing, to punch , check all the hallways, and things
of this nature for unusual situations , and, during
shift changes especially, be in the time clock area,
downstairs , which was near the discharge area as
well, the lower parking lot area , make rounds of the
lobby, and things of this nature.
These instructions reflected the Respondent 's concern
about union activity on its premises, for in his instruc-
tions Hofstetter referred to "shift changes" in the time-
clock area, located in the discharge area in the hospital's
basement, and the lower parking lot area . It was at both
locations that prounion off-duty employees throughout
the organizing campaign conducted much of their solici-
tation and distribution on the Union 's behalf during the
649
changing of the employees ' shifts . The off-duty employ-
ees usually appeared in the discharge area and the lower
parking lot 30 to 45 minutes before a shift started and
would depart when the shift had begun.
On 25 November 1981 , Hofstetter issued a memo to
the guards entitled "General Guidelines," which stated:
In order to alleviate any potential problems, the fol-
lowing guidelines should be used by the security
personnel of Springfield Hospital:
'TIME-2 Shifts-3:00 p.m. to 11 :00 p.m .; 11:00
p.m. to 7 :00 a.m.
*DRESS-Casual, neat and professional appear-
ance , uniforms are not preferred
*GENERAL DUTIES-
1. Upon arrival check in with the evening
Nursing Supervisor;
2. Get beeper unit from switchboard;
3. Begin rounds of Hospital building and
grounds;
4. Check out with Nursing Supervisor at end
of shift.
*SPECIAL SITUATIONS-
1. Any time you encounter a problem situation,
assess the problem quickly to determine the
extent of the situation;
2. Contact the Nursing Supervisor and the Ad-
ministrator on call (if required), prior to initiating
any action.
3. If warranted contact the local authorities.
From 25 November 1981 until he completed his em-
ployment at the hospital about 11 February 1982,
Waidler also carried out Hofstetter's periodic oral in-
structions.
Waidler's rounds regularly took him to the timeclock,
discharge, and lower parking lot areas during shift
changes . Each morning during the campaign , when the
Union's organizer Richard Sanders appeared in the lower
parking lot at approximately 6:30, one of the guards
would appear and move to within 5 to 10 feet of where
Sanders stood . The guard remained on that station while
Sanders met with a group of off-duty employees who
were about to engage in solicitation during a shift
change . When a portion of the group split off and moved
toward the hospital's discharge area , the guard would
follow . Thereafter, during the shift change , the guard
would appear once more 5 to 10 feet away from Sanders'
position in the lower parking lot.4
At 6:30 a.m. on 21 December 1981 , Sanders was stand-
ing on a rise in the hospital 's lower parking lot when he
saw employee Janet Munroe proceeding up the hill to-
wards the hospital . Sanders, together with a colleague,
began walking down the hill to talk to Munroe about the
Union . Sanders asked Munroe if she would like to meet
4 I base my findings regarding the guard 's practice preceding morning
shift changes on Sanders ' testimony.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with him on another occasion to discuss the Union. At
that point, the three were not on hospital property.
At the time that Sanders and his colleague began
walking toward Munroe, guard Waidler, who had been
standing nearby, followed them. As Sanders spoke to
Munroe, she said she wanted to get to work and kept on
walking. However, as he spoke to Munroe, Sanders
touched her arm with his hand. At this juncture, Munroe
looked up and caught a glimpse of Waidler, who was
now beyond the hospital's property line. Munroe stopped
talking and continued on her way to works
On 13 January 1982 employee Annette Goodell asked
employee Barbara Davis to accompany her and several
other employees to the office of the Respondent's direc-
tor of nursing, Ruth Lawrence, to discuss a disciplinary
warning issued to Goodell. After their shift had ended,
employees Simone Murray, Barbara Davis, Judith Grant,
and Mel Monfette went down to the hospital's discharge
area in the basement to punch out. They intended to
return immediately to the first floor where Lawrence's
office was located. When the employees left the dis-
charge area, guard Harry Waidler accompanied them to
Ruth Lawrence's office. He waited outside as Davis,
Murray, Monfette, and Goodell met with Lawrence.
After the meeting began, employee Grant, who had
punched out between 3:30 and 3:45 p.m., arrived outside
Lawrence's office, where she found employee Graham
and Waidler. As the half-hour long meeting progressed,
the two employees remained in the corridor. Waidler re-
mained nearby.
When the meeting ended, Murray, Davis, Graham,
Grant, Monfette, and Goodell proceeded to the elevator.
They rode down to the basement , where they proceeded
through the discharge area and out to the lower parking
lot. Waidler accompanied them , remaining close behind,
until the group arrived at the lower parking lot, where
they met organizer Richard Sanders and began convers-
ing with him. Waidler stationed himself 10 to 12 feet
from the conversation. As Goodell and the other em-
ployees conversed with Sanders, Harry Waidler was
writing in a little book, which resembled a date book.6
8 I base my findings of fact regarding the alleged surveillance of 21
December 1981 on the testimony of Sanders and Munroe
According to Harry Waidler, there was an incident in which he fol-
lowed Sanders down the hill from the lower parking lot at the request of
an employee who he first identified as Heather Duncan . Later in his testi-
mony Wandler identified the employee as Janet Munroe , who he asserted
had told him that she did not want to speak to Sanders According to
Waidler, by the time he reached Sanders and Munroe , the former had
stopped her and had begun talking to her Further , according to Waidler,
before he arrived on the scene, he observed that Sanders had grabbed the
young woman's arm and that she had tears in her eyes.
However, review of Janet Munroe 's testimony strongly suggested that
Waidler was exaggerating in his account of the incident According to
Munroe, Sanders only touched her arm. Although the Respondent called
her as its own witness, Munroe did not corroborate Waidler's assertions
that she actively sought his intervention and that she had tears in her
eyes and was crying after her brief encounter with Sanders
I also noted that unlike Sanders and Munroe , whose demeanor evi-
denced certainty as they testified in detail about the incident , Waidler
seemed unsure as to the identity of the employee and the date of the inci-
dent Further, I noted that Munroe's version tended to corroborate Sand-
ers' testimony regarding this incident Accordingly, I rejected Waidler's
testimony and relied on Sander 's and Munroe's accounts of the incident
8 I base my findings regarding the alleged surveillance of 13 January
1982 on the testimony of employees Barbara Davis and Patricia Grant
During the period between 25 November 1981 and 1
February 1982, Peter Hofstetter, on three or four occa-
sions, passed through the hospital's discharge area as off-
duty employee Simone Murray and other employees dis-
tributed union leaflets or solicited for the Union during
shift changes. Hofstetter would appear about 3:15 p.m.
and remain conversing with the off-duty employees until
about 3:45 p.m. As he stood with the off-duty employees,
Hofstetter would request a copy of whatever leaflet they
were distributing and then ask about their reasons for
wanting union representation . In each instance, Burns se-
curity guard Thomas LaFond stood with Hofstetter. On
one occasion, employee Lori Barrell suggested that Hof-
stetter was present only to interfere with the employees'
organizing campaign. Hofstetter did not respond.
On the afternoon of 27 November 1981 employees
Carolyn Pixley, Lori Barrell, and four or five of their
colleagues stood just outside the doors to the hospital's
discharge area, where they spoke to passing employees
about the Union. Hofstetter and LaFond went through
the area escorting two employees to their automobiles.
On their return, Hofstetter and LaFond stopped approxi-
mately 5 feet away from Pixley and the other employees
and stood behind them "for maybe a few minutes."
b. Analysis and conclusions
Turning to Board doctrine, I find principles that re-
quire dismissal of the allegations that the Respondent's
conduct recited above was unlawful surveillance.8 Ini-
tially, I note that "[t]he Board has held that `[u]nion rep-
resentatives and employees who choose to engage in
their union activities at the employer's premises should
have no cause to complain that management observes
them."' Porta Systems Corp., 238 NLRB 192 (1978), citing
Chemtronics; Inc., 236 NLRB 178 (1978); Larand Leisure-
lies, 213 NLRB 197, 205 (1974); Mitchell Plastics, 159
NLRB 1574, 1576 (1966); Milco, Inc., 159 NLRB 812,
814 (1966). Accord: Adams Super Markets, 274 NLRB
1334 (1985). The Board has also held that " management
officials may observe public union activity, particularly
where such activity occurs on company premises, with-
out violating Section 8(a)(1) of the Act, unless such offi-
cials do something out of the ordinary." Metal Industries,
251 NLRB 1523 (1980).
Their testimony regarding Waidler 's conduct up until their assertion that
he began taking notes as they conversed with Sanders was undenied.
Waidler testified on direct examination that in mid -January 1982 he began
taking notes in the area of the lower parking lot and access road. This
testimony suggested that he did not take notes as Davis and Grant had
testified However, earlier in his testimony , Waidler had admitted that
every day as part of his duties he carried a notebook in which he record-
ed whatever he deemed worthy of attention. In light of this admission
and my impression that Davis and Grant were more conscientious in
their efforts to recollect what occurred on 13 January 1982, 1 have cred-
ited their testimony in this regard
4 I base my findings regarding Hofstetter's and LaFond's conduct at
the discharge area on the undenied testimony of employees Murray,
Jackman , and Barrell.
8 The General Counsel conceded that the record did not support the
amended consolidated complaint's allegation that on 25 November 1981
Hofstetter and Assistant Director of Nursing Patricia G Demond en-
gaged in surveillance (G C Br. 151 In. 78) I agree Accordingly, I shall
recommend dismissal of that allegation
SPRINGFIELD HOSPITAL
Throughout his employment at the Respondent's hos-
pital, guard Waidler's duties required that he circulate
through its "building and grounds," including the dis-
charge area and the lower parking lot. During the same
period , Union Organizer Sanders and off-duty employees
chose to engage persistently in organizing activities on
the Respondent's premises , including the discharge area
and the lower parking lot , where Waidler's duties re-
quired him to be . I also find that when Sanders and the
off-duty employees looked up to see Waidler standing
nearby in the lower parking lot and when he followed
the off-duty employees to the discharge area, he was not
engaging in unusual conduct . Therefore, Waidler's con-
duct in the lower parking lot and in the hospital as recit-
ed above did not violate the Act. Larand Leisurelies, 213
NLRB at 205 . The following holding in Tarrant Mfg.
Co., 196 NLRB 794, 799 (1972), is wholly applicable
here, and forecloses a finding that such conduct was un-
lawful:
The notion that it is unlawful for a representative to
station himself at a point on management 's property
to observe what is taking place at the plant gate is
too absurd to warrant comment. If a union wishes
to organize in public it cannot demand that manage-
ment must hide.
Applying the same principle, I find that Hofstetter did
not engage in unlawful surveillance when he visited the
discharge area where he observed off-duty employees
engaged in solicitation and distribution on the Union's
behalf. Hofstetter , as the Respondent's director of sup-
port services , was responsible for the maintenance,
housekeeping , and dietary departments , and the store-
room, all of which had specific areas in the basement
near the discharge area . Thus, it appeared that Hofstet-
ter's duties were likely to bring him within view of the
union activity, which the Union and its supporters chose
to conduct there.
In any event, the General Counsel did not show that
between 25 November 1981 and 4 February 1982 any of
Hofstetter's appearances at the discharge area were
"something out of the ordinary ." Metal Industries, supra
at 1523 . Accordingly, I find that on those occasions,
Hofstetter did not engage in unlawful surveillance. Nor
was there any showing that Hofstetter engaged in such
conduct in the hospital 's parking lots. I shall therefore
recommend dismissal of the allegation that he and
Waidler violated Section 8(a)(1) of the Act by engaging
in surveillance "[o]n various dates from November 1981
to February 4, 1982 , in the Hospital discharge area and
parking lots."
I find also that the General Counsel has not shown
that Waidler's surveillance of off-duty employees on 13
January 1982 was unlawful . There was no showing that
by following off-duty employees Murray, Davis, Mon-
fette, Goodell , and Graham from the discharge area to
Lawrence 's office, and later by following them and off-
duty employee Grant to the lower parking lot, Waidler
made a substantial departure from his usual procedure.
Waidler's responsibility for the hospital 's security could
reasonably require that he keep an eye on groups of off-
651
duty employees remaining on the hospital's premises.
Further, off-duty employees who engaged in organizing
for the Union or in other activity protected by Section 7
of the Act on the hospital 's property should have expect-
ed observation by its management and its security agents.
Here, there was no showing that Waidler treated this
group of off-duty employees different from other groups
of off-duty employees who might have proceeded to the
hospital 's administrative floor instead of leaving the
premises . In short, the General Counsel has not shown
that Harry Waidler's conduct inside the hospital on 13
January 1982 amounted to something out of the ordi-
nary. Metal Industries, supra, 251 NLRB at 1526. I shall
therefore recommend dismissal of the allegation that
Waidler's conduct on 13 January 1982 constituted sur-
veillance of employees' union activities in violation of
Section 8(a)(1) of the Act.
Nor was there a showing that Waidler's conduct in the
parking lot on 13 January 1982 was unlawful surveillance
because he appeared to be writing notes in the book. I
find from Waidler's testimony that as a matter of prac-
tice he maintained a notebook on his person in connec-
tion with his security duties . Waidler regularly took
notes on unusual incidents that he would later report to
the Respondent . Thus, it was probably not unusual for
employees to observe Waidler taking notes prior to the
incident of 13 January 1982 . In any event, the General
Counsel did not sustain his burden of showing that
Waidler's note-taking was "something out of the ordi-
nary." Metal Industries, 251 NLRB at 1523. Moreover, as
the off-duty employees and the Union' s organizer Sand-
ers insisted on meeting on the Respondent's premises,
management and its representatives could lawfully sta-
tion themselves nearby and observe the meeting. (Ibid.)
In sum, I find that the General Counsel has failed to
show that Waidler's conduct in the parking lot on 13
January 1982 amounted to unlawful surveillance.
I also find that Waidler's intervention in organizer
Sanders' encounter with employee Munroe was not un-
lawful surveillance . The Respondent's instruction to
Waidler limited his security activity to its premises. On
21 December 1981 when Waidler left the hospital's
grounds to engage in surveillance of employee Munroe
as she spoke to union organizer Sanders on a local street
he exceeded the limit of authority. Waidler left his post
on the hospital's grounds to conduct surveillance on a
public street . There was no showing that the Respondent
ordered or encouraged Waidler to exceed the limits that
it imposed on him on 25 November 1981. I find, there-
fore, that although Waidler was the Respondent 's agent,
his intervention in Munroe 's meeting with Sanders was
not at the Respondent's behest . I shall therefore recom-
mend dismissal of the contention that by this incident the
Respondent violated Section 8(a)(1) of the Act.
Finally, I find that there has been no showing that
Peter Hofstetter and guard LaFond engaged in unlawful
surveillance either on 27 November 1981 or on the three
or four other occasions between 25 November 1981 and
4 February 1982 when they passed through or lingered
briefly in the discharge area . All the alleged incidents of
unlawful surveillance occurred where LaFond's and
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hofstetter's normal duties required them to be. Thus, as
in Waidler's case, this circumstance permitted them to
observe union activity without violating Section 8(a)(1)
of the Act. Accordingly, I shall recommend dismissal of
the allegations that Hofstetter violated that Section of
the Act by engaging in surveillance of employee union
activity between various dates in November 1981 and 4
February 1982.
2. The attempt to cause the arrest of Richard
Sanders
On the afternoon of 14 January 1982 Union Organizer
Richard Sanders met with a group of prounion employ-
ees in the Respondent's lower parking lot. Sanders and
the employees began their meeting at the top of the
parking lot . Guard Harry Waidler stationed himself near
the assemblage . After Waidler refused Sanders' request
to move away from the group, Sanders and the employ-
ees shifted to a point toward the middle of the lot. The
parties stipulated and I find that the lower parking lot,
which was within the Respondent's property line, was
not posted with any signs restricting public access or use.
A few minutes after Sanders and the employees had
removed themselves to the middle of the parking lot,
Waidler appeared with Peter Hofstetter, who directed
Sanders to leave the premises. When Sanders refused,
Hofstetter warned that he would call the police. When
Sanders persisted, Hofstetter left and telephoned the
Springfield, Vermont police headquarters.
Thirty to forty-five minutes after Hofstetter's depar-
ture, Police Officer Joseph Estey appeared at the parking
lot. Estey told Sanders that he was standing on the Re-
spondent's property. Estey's further efforts to dislodge
Sanders from the parking lot were unsuccessful. Finally,
Estey departed, leaving Sanders free to continue his
meeting with the employees.' Prior to this incident, the
Respondent had permitted Sanders to conduct his orga-
nizing activity at the top of the parking lot near the
access road . There was no showing that the Respondent
had permitted nonemployees to use its parking lots as
meeting areas at any time before or since this incident.
The Board has found a violation of Section 8(a)(1) of
the Act where an employer discriminatorily enforced its
no-access rule by causing the arrest of a nonemployee
for distributing union literature on the employer's park-
ing lot . Chrysler Corp., 232 NLRB 466 (1977). In the in-
stant case, however, there was no showing that the Re-
spondent had uniformly permitted nonemployees to con-
gregate for any purpose in its lower parking lot and had
singled out Sanders and his organizing effort for police
action . That the Respondent tolerated Sanders' presence
along the outer periphery of the lot did not entitle him
to pursue his organizing activity freely on the hospital's
premises . In sum, I find that the evidence did not sup-
port the allegation that the Respondent violated Section
According to Sanders, Waidler asked Sanders and the employees to
leave the parking lot However, Waidler and Hofstetter testified consist-
ently that they asked only Sanders to leave In light of Officer Joseph
Estey's credible testimony that he was instructed to focus his attention on
Sanders, I have credited Hofstetter and Waidler in this regard I base the
remaining findings of fact regarding this incident on a composite of the
testimony of Waidler, Hofstetter, Sanders, and Estey
8(a)(1) of the Act by attempting to cause Sanders' arrest
while he was engaged in organizing activity. NLRB v.
Babcock & Wilcox Co., 351 U.S. 105, 112 (1956); Liberty
Pavilion Nursing Home, 254 NLRB 1299, 1304 (1981). I
shall therefore recommend dismissal of the complaint al-
legation referring to this incident.
3. Threats and interrogation
In mid-November 1981 Ruth Celotto, the Respond-
ent's chief physical therapist, a supervisor, conducted a
staff meeting at the hospital attended by employees
Kathy Dykeman, Shelly Berney, Carla Kelly, and Sheila
Nemkovich. In the course of the meeting, Celotto told
the group, "I have examples of what will happen if you
vote for the union ." Turning to Nemkovich, she said,
"Sheila, if you were called on the telephone with an
emergency , or your children were sick, I could not give
you permission to leave, you would have to find your
union steward." Nemkovich recalled that earlier one of
her children had hit his head on a desk at school, and
that Celotto had released her from work after the school
had informed the Respondent of the accident. i o
I find that Celotto's remark amounted to a threat that
if the employees selected the Union as their bargaining
representative, the Respondent would retaliate by with-
drawing a liberal policy toward employee requests for
time off in emergencies . I find, therefore, that by Celot-
to's threat, the Respondent unlawfully restrained, co-
erced, and interfered with its employees' right under
Section 7 to support a union , and thereby violated Sec-
tion 8(a)(1) of the Act. Montgomery Ward & Co., 222
NLRB 965, 969 (1976).
Three alleged incident's involved housekeeping em-
ployee Michael Paradis and his supervisor, Richard
Haenggi . The first occurred after Paradis had signed a
petition regarding the resignation of Kathy Dykeman
is I base my findings regarding Celotto's remarks on Sheila Nemko-
vich's testimony Celotto testified in substance that in her remarks she
was referring to actual occurrences at a hospital in Connecticut where
she had formerly worked and where a union represented the employees
According to employees Perrin and Kelly , who testified for the Respond-
ent, Celotto's warning was in the context of her recollection of her obser-
vations while working at Connecticut hospitals and nursing homes where
unions represented employees However, of the four witnesses, only
Nemkovich seemed certain as to the content of Celotto 's remark When
asked if she had discussed at the November meeting "any occurrences
that had taken place in Connecticut facilities that you had worked at,"
Celotto answered, "I probably did I was always glad to tell people about
the conditions I saw in those homes " This tentative answer together
with her later admission that she did not remember exactly what she had
told the employees about conditions at the Connecticut facility cast doubt
on her testimony Nor was I impressed by the testimony of Perrin and
Kelly, who attempted to corroborate Celotto's version of her remarks
Kelly's testimony was that the only remark that she could remember
emanating from Celotto at the meeting pertained to emergency time off
and that Celotto had couched it in terms of her experience in Connecti-
cut Pernn's testimony showed that she also had a selective memory and
was unwilling on cross-examination to provide her recollection of the
substance of Celotto's remarks I also noted that the Respondent 's coun-
sel carefully led Perrin to deny the complaint's allegation leaving the pos-
sibility that Celotto's remarks had the same meaning suggested in the
complaint In contrast to the Respondent 's witnesses, Nemkovich ap-
peared to be giving her full recollection in a straightforward manner I
also noted that unlike Celotto, Kelly, and Perrin, Nemkovich appeared to
be more at ease as she testified Accordingly, I have credited her testimo-
ny
SPRINGFIELD HOSPITAL
from her employment at the hospital , a second petition
urging the Respondent to terminate its labor relations
consultant, Modern Management Methods, Inc., and a
third petition calling on the Respondent to terminate its
labor relations counsel , Skoler, Abbott & Hayes . For rea-
sons set forth below in discussing the alleged discrimina-
tion against Lori Barrell , I find that these three petitions
were part of the Union 's organizing campaign and that
by signing these petitions Paradis engaged in activity
protected by Section 7 of the Act.
On 20 November 1981 Supervisor Haenggi ap-
proached Paradis at the hospital and remarked that he
saw Paradis ' name on the petitions and warned that he
would "get even with [Paradis]." I I
I find that by his remark that he saw Paradis' name
"on the petitions," Haenggi was referring to the petitions
regarding Kathy Dykeman , Modern Management Meth-
ods, Inc ., and Skoler, Abbott & Hayes, all of which were
then circulating among the Respondent's employees. I
find that in that context Haenggi 's warning that he
would "get even with [Paradis]" was a threat of reprisal
violative of Section 8(a)(1) of the Act.
It is undisputed that on 20 January 1982 Haenggi and
Supervisor Steven Parker praised Paradis ' work and held
out the possibility of promotion and a wage increase.
However, there is disagreement about further remarks by
Haenggi.
According to Paradis , on 4 February 1982 Haenggi
conditioned the promotion on the Union 's loss of the
election . Thus, Paradis testified that Haenggi said that if
the Union lost the election , Paradis would receive a pro-
motion and if the Union won the election , he would not.
Both Parker and Haenggi denied having any conversa-
tion with Paradis on that date.
However, Paradis' uncertainty and his demeanor cast
serious doubt on his testimony . In relating his recollec-
tion, Paradis had difficulty fixing the date and content of
the alleged warning. I also noted that Paradis was ill at
ease as he finally settled on a version of the unlawful re-
marks he attributed to Haenggi . In contrast, Haenggi and
Parker seemed certain and dispassionate as they contra-
dicted Paradis ' testimony.
Having resolved the material issues of credibility
against Paradis, I find that the General Counsel has not
proven the allegation that on 4 February 1982 the Re-
spondent conditioned Paradis' promotion on the Union's
defeat in the representation elections. I shall therefore
recommend dismissal of the allegation.
In his brief (G.C. Br. 156), the General Counsel con-
ceded and I find that in his remarks on 20 January 1982
11 I base my findings regarding Haenggi 's remark on Paradis ' testimo-
ny. Haenggi testified that the only petitions he was aware of in the fall of
1981 and the winter of 1982 had to do with the Union 's request for rec-
ognition . He denied ever having any discussion with Paradis regarding
the Union 's petitions seeking recognition . Haenggi had no recollection of
the petitions or the conversation to which Paradis referred in his testimo-
ny. Except for the date of the incident , Paradis' testimony on direct ex-
amination and on cross-examination was essentially consistent. At one
point, he testified that the incident occurred on 30 November . However,
he finally insisted that the date was 20 November as he had originally
testified . The essential consistency of his testimony and his sincere effort
to provide his full recollection persuaded me that Paradis was a reliable
witness in this instance.
653
Haenggi did not condition Paradis' promotion on his sen-
timent towards the Union or on whether he supported
the Union. Accordingly, I shall also recommend dismis-
sal of the allegation that the Respondent violated Section
8(a)(1) of the Act on 20 January 1982 when Stevens and
Haenggi held out the possibility of promotion to Paradis.
Housekeeping department employee Glenn Bobar was
active in the Union's organizing campaign. In the fall
and winter of 1981 -1982, Bobar distributed union litera-
ture in the hospital 's cafeteria and in its coffeeshop. On
one occasion, at the end of January 1982, Bobar was one
of 30 prounion employees seated at a table distributing
prounion literature to employees entering the cafeteria.
Later that same day , Peter Hofstetter summoned Bobar
upstairs to the controller 's office. I find from Hofstetter's
and Bobar's testimony that Hofstetter told Bobar that he
"was disappointed in [Bobar] for being downstairs and
being on the Union."
Two days later, Housekeeping Manager Haenggi told
him, "I heard you got in some trouble." Bobar pressed
him about the meaning of the word "trouble," and
Haenggi responded , "Peter Hofstetter said you had
gotten into trouble ." Haenggi also warned that Bobar
"had better be careful ." Later that same day , Haenggi re-
peated his warning that Bobar should "be careful." 12
Hofstetter's remark that he was disappointed in Bobar
because he was aligning himself with the Union 's orga-
nizing activity carried with it the implication that Bobar
would suffer reprisal at Hofstetter 's hands . I find that by
Hofstetter's remarks the Respondent interfered with, re-
strained, and coerced Bobar in the exercise of his right,
under Section 7 of the Act, to support the Union. South-
ern Florida Hotel Assn., 245 NLRB 561, 600 (1979).
I also find that Haenggi 's remarks, as reported above,
carried the implication that Bobar 's support for the three
petitions displeased Hofstetter and that further participa-
tion in such activity would provoke Hofstetter to take
retaliatory action against Bobar. I therefore find that
Haenggi's remarks amounted to a threat of economic re-
prisal that violated Section 8(a)(1) of the Act.
Employee Thomas Grant , a medical laboratory techni-
cian , openly supported the Union's organizing effort at
the hospital. He began wearing a union button at work in
November 1981 and continued to wear the button until
November 1982 . Grant also manifested his interest in the
Union's cause by attending the representation hearings in
Cases 1-RC-17475 and 1-RC-17476 in November 1981
at Windsor, Vermont.
During the second or third week in December 1981,
Grant and his then immediate supervisor, David La-
12 My findings regarding Haenggi 's remarks are based on Bobar's testi-
mony . Haenggi first denied having a conversation with Bobar about the
Union's table in the cafeteria. He also answered "No" to leading ques-
tions whether he recalled telling Bobar "that he better be careful." How-
ever, on cross-examination, Haenggi admitted that he had mentioned to
Bobar hearing about the table . When pressed about this inconsistent re-
sponse, Haenggi became evasive . In contrast to Haenggi , Bobar appeared
to be a more forthright witness. Further , Hofstetter corroborated the es-
sential elements of Bobar's testimony regarding Hofstetter 's expression of
disappointment. This factor, together with Bobar 's demeanor, persuaded
me that his testimony was more reliable than Haenggi 's. I therefore ac-
cepted Bobar's version of Haenggi's remarks where the testimony of the
two conflicted.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plante, conversed in LaPlante's office at the hospital re-
garding the Union' s organizing effort. LaPlante asked
Grant if he thought the Union's organizing attempt
would succeed. Grant responded that in due course the
Union would organize the entire hospital. LaPlante asked
Grant how he would feel toward LaPlante following the
representation election. Grant replied he would not feel
any differently toward LaPlante. At this, LaPlante said
that he would "feel differently toward [Grant]."13
Also in December 1981 LaPlante again expressed
anger toward Grant in remarks to employee Betty Jane
King. I find from King's testimony that LaPlante told
her: "I don't want you to tell Tom this, but I' m upset
with him." LaPlante went on to explain that the causes
of his ill-will against LaPlante a rose from Grant's tele-
phone calls to the hospital during the November repre-
sentation hearing and the possibility that Grant would
testify contrary to LaPlante's previous testimony at the
representation proceedings.14
I find from LaPlante's testimony that in the latter part
of January 1982 he and Grant had a confrontation in the
clinical laboratory. LaPlante offered to Grant a letter
from Hospital Administrator Eric Rieseberg to the Re-
spondent's employees containing information regarding
union representation. In the course of the ensuing discus-
sion, Grant reiterated his support for the Union. At this
point, LaPlante said he did not understand Grant' s posi-
tion. LaPlante admitted that he posed his remark as a
question. Grant rejected the letter, and declared his sup-
port for the Union because of his wife , a licensed practi-
cal nurse employed at the hospital. In Grant's view the
Union would help solve some of his wife's problems in
the nursing department. LaPlante, who was antiunion,
ended the exchange with: "Tom, that's a real kick in the
teeth."
The final incident involving Grant and LaPlante oc-
curred at the hospital, approximately 1 week prior to the
representation elections of 4 February 1982. I find from
Grant's credible testimony that during this conversation
LaPlante, referring to the November representation pro-
ceedings, accused Grant of being a "traitor" and of
having "kicked him in the teeth." When Grant sought an
explanation, LaPlante asserted that he was referring to
telephone calls that Grant had made from Windsor, Ver-
mont, to the hospital in the course of the representation
hearing.
Contrary to the Respondent, I find that LaPlante's re-
marks about his changed attitude toward Grant implied
that LaPlante viewed Grant's union activity with hostili-
ty and suggested an intent to impose reprisals on Grant.
Similarly, LaPlante's accusation that Grant was a traitor
and had kicked LaPlante in the teeth equated Grant's
support for the Union, as reflected by his willingness to
13 I base my findings regarding this conversation on Grant's testimony.
Of the two, Grant was the more straightforward witness LaPlante
seemed reluctant to provide his full recollection of his remarks to Grant
He attempted to terminate his account with "and that was basically it "
LaPlante also seemed to be glossing over the content and direction of his
remarks by testifying that when he spoke to Grant, he did so "globally."
In contrast , Grant appeared to be conscientiously searching his memory
as he testified
14 I base my findings regarding LaPlante's remarks to King on her tes-
timony, which LaPlante, in large part, corroborated
testify and his presence at the representation hearings,
with disloyalty to the Respondent's management, thereby
implying future reprisals. I fmd, therefore, that La-
Plante's remarks to Grant and his remark to employee
King equating union activity and support for the Union
with disloyalty to the Respondent's management violated
Section 8(a)(1) of the Act. Paul Distributing Co., 264
NLRB 1378, 1382 (1982). In light of his other expres-
sions of hostility toward Grant's union activity, I also
find LaPlante's warning of his changed attitude toward
Grant violated Section 8(a)(1) of the Act. Wilker Bros.
Co., 236 NLRB 1371, 1372 (1978).
However, I do not find, as urged by the General
Counsel , that in the discussion between LaPlante and
Grant in the latter part of January, LaPlante engaged in
unlawful interrogation. I disagree on the ground that the
interrogation did not impair Grant's freedom to support
a labor organization.
As the Board recently pointed out in Rossmore House,
269 NLRB 1176, 1178 fn. 20 (1984):
Experience convinces us that there are myriad situa-
tions in which interrogations may arise. Our duty is
to determine in each case whether, under the dic-
tates of Sec. 8(a)(l), such interrogations violate the
Act. Some factors which may be considered in ana-
lyzing alleged interrogations are: (1) the back-
ground; (2) the nature of the information sought; (3)
the identity of the questioner; and (4) the place and
method of interrogation.
In the instant case , LaPlante's question arose in the
context of open discussion between himself and Grant,
an outspoken union advocate who was wearing a union
button at the time. I also noted that LaPlante was
Grant's immediate supervisor; that the locale of the dis-
cussion was at Grant's workplace; and, further, that La-
Plante was attempting to understand why Grant was
prounion. Also, LaPlante did not expressly or impliedly
threaten Grant with reprisals because of his union activi-
ty or his support for the Union. Finally, Grant freely ex-
pressed his prounion sentiments. Applying the policy of
Rossmore, supra, I find the circumstances surrounding
this interrogation did not reasonably tend to restrain,
coerce, or interfere with Grant in the exercise of his
right under Section 7 of the Act to support the Union. I
shall therefore recommend dismissal of the complaint's
allegation that this interrogation violated Section 8(a)(1)
of the Act.
On 5 February 1982, Supervisor LaPlante asked Grant
into his office. After a brief exchange referring to the
Union's organizing campaign , LaPlante said that "he
hoped that all 29 union supporters in the LPN Technical
Unit were still around one year from now."15
15 1 base my findings regarding this incident on Grant's testimony La-
Plante 's testimony cast doubt on the reliability of his version of the mci-
dent LaPlante testified . "I told Tom, I commented to him that I hoped
the 29 technical employees [LPN/technical unit] would stay around." He
then went on to testify as follows "I indicated to him that the 29 em-
ployees constituted a majority of that unit and that a decision was made
based on that majority." I found it difficult to accept this testimony in
Continued
SPRINGFIELD HOSPITAL
LaPlante's remark was a thinly veiled warning that the
29 union supporters in the LPN/technical unit were in
danger of discharge if they voted for the Union. By La-
Plante's warning, I find that the Respondent violated
Section 8(a)(1) of the Act.
On 7 January 1982 a group of 15 to 20 prounion off-
duty employees, including Sharon Jackman , Lori Barrell,
and Roxanne Royce, came to the hospital to present a
petition calling on the Respondent to terminate Modem
Management Methods, Inc. and Skoler , Abbott & Hayes.
The employees tendered the petition to the Respondent's
administrator , Eric Rieseberg. Rieseberg , in an angry
mood , turned to the employees telling them that it was a
waste of their time and his for them to persist in present-
ing such petitions . Employee Royce responded that the
employees intended to persist in bringing petitions to him
until they won. At that point, he said , "I hope you do
for your sake." When employees Barrell and Royce
asked , "Is that a threat?" Rieseberg responded : "Take it
any way you want." At this, the employees departed.16
I find that Rieseberg's parting exchange with the em-
ployees amounted to a threat that without the protection
of a collective-bargaining agent the Union's supporters
were likely to suffer reprisal at his hands . I find that by
this threat directed at employees because they supported
the Union Rieseberg impaired their exercise of the right
to support a labor organization as provided by Section 7
of the Act. Here, again , the Respondent violated Section
8(a)(1) of the Act.
That Rieseberg on 11 January 1982 issued a letter to
his employees declaring that those supporting or assisting
the Union would not suffer punishment or penalty be-
cause of such activity did not militate against my finding
that his earlier remarks violated the Act. Despite his
letter of 11 January 1982 Rieseberg and other members
of the Respondent's management continued to engage in
unfair labor practices , including threats of economic re-
prisal. I find, therefore, that Rieseberg's letter did not re-
lieve the Respondent of responsibility for remedying his
threat of 7 January 1982 . Passavant Memorial Area Hospi-
tal, 237 NLRB 138 (1978).
light of LaPlante's later testimony that at the time he spoke to Grant on
5 February, he knew that the results of the elections were not final and
that there were determinative challenged ballots awaiting resolution. I
considered it unlikely that he would have said that a decision had been
made at a time when he knew that the outcome of the LPN/technical
unit election was in doubt . This factor, and my impression that Grant
was the more candid witness of the two , persuaded me to reject La-
Plante's version and credit Grant's.
1 6 I base my findings regarding the exchange on 7 January 1982 on the
testimony of Jackman , Barrell , and Royce, who were more candid wit-
nesses than Rieseberg . Rieseberg's testimony portrayed this encounter as
"rather mild" and his response to Jackman 's claim that the Union's orga-
nizing drive would succeed despite Rieseberg's efforts as "very casual."
However, it seemed unlikely that Rieseberg was calm when the employ-
ees confronted him with the petition regarding Modern Management
Methods , Inc. and Skoler, Abbott & Hayes. Observing Rieseberg as he
testified about this incident , I noted an annoyed tone in his voice as he
recounted his version of this confrontation . I also noted that the content
of Rieseberg 's exchange with the employees , as he remembered it, carried
an air of hostility . Thus, it appeared to me that Rieseberg's assertion that
the atmosphere was calm evidenced a desire to present this incident in a
light more favorable to the Respondent 's defense . This factor , together
with the infirmities in Rieseberg's testimony that I have noted later in this
decision , caused me to reject his version of this incident
655
Administrator Rieseberg admitted that in the fall of
1981 , and continuing into 1982 , he had a so-called open-
door policy under which any employee could come to
him on a confidential basis to discuss any problem he
might have on or off the job. The Respondent 's employ-
ees were generally aware of this policy.
Early on the afternoon of 3 February 1982 Rieseberg
met with the Respondent's housekeeping employees and
talked about the Union . Rieseberg said that if the Union
won the election, the intercession of a steward would be
necessary before the employees could have a one -on-one
meeting with Rieseberg to discuss personal problems. He
also told employees that the Union "would start a lot of
trouble ." Rieseberg made reference to the arrest of four
nurses as an example of such trouble . Later in this deci-
sion, I find that Rieseberg caused those arrests and that
he thereby violated Section 8(a)(1) of the Act.17
I find that Rieseberg 's statement indicating that if em-
ployees selected the Union as their representative they
could no longer come to him directly with their prob-
lems was not violative of Section 8(a)(1) of the Act.
Here , the Respondent 's administrator was explaining to
his employees that if the Union won the election, their
relationship with the Respondent would change so that
they would deal with the Respondent indirectly. Under
current Board doctrine , such remarks do not violate Sec-
tion 8(a)(1) of the Act . Purolator Products, 270 NLRB
694 (1984). See also Tri-Cast, Inc., 274 NLRB 377 (1985).
However , I find that his remark that if the Union won
the election , it would start trouble and his reference to
the arrests of the four nurses on 1 February 1982 strong-
ly suggested that Rieseberg would respond with reprisals
against the unit employees . Accordingly, I find that by
this threat of reprisal if the employees selected the Union
as their bargaining representative , the Respondent violat-
ed Section 8(a)(1) of the Act.
Receptionist Barbara Israel became interested in the
Union 's organizing effort in August or September 1981.
Israel wore a union button and actively assisted in the
Union's organizing effort during shift changes at the hos-
pital . During November and December 1981 , Israel's im-
mediate supervisor , Patients Accounts Manager Robert
Fotter, frequently came to her work station and began
discussing the Union . Fotter distributed antiunion litera-
ture . On several occasions , he asked her why she was a
union supporter and why she was "doing this to him."
He also asked her why she was for the Union when he
had been good to her and the Respondent had been good
to the employees . At least some of this interrogation oc-
curred about the time the Respondent had granted a
17 I draw my findings regarding Rieseberg 's remarks of 3 February
1982 from the testimony of employees Bobar and Paradis , who impressed
me as sincere witnesses trying to give their best recollections . Rieseberg
testified he had no recollection of having a meeting with the housekeep-
ing employees on 3 February , and that it was unlikely that he met with
the employees on that date . Rieseberg also categorically denied Paradis'
testimony that Rieseberg had warned that the advent of the Union would
bring trouble as exemplified by the arrest of the four nurses . However,
my impression that Rieseberg was more anxious to assist the Respond-
ent's defense than he was in providing his full recollection cast doubt on
his credibility . I therefore credit both Paradis and Bobar rather than Rie-
seberg regarding the latter's remarks on 3 February 1982.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increase to Israel, which I find below was violative
of Section 8(a)(1) of the Act.18
Applying the teachings of Rossmore House, 269 NLRB
1176, 1178 fn. 20 (1984), I find that Fotter' s repeated in-
terrogations of Israel reasonably tended to restrain,
coerce, and interfere with her Section 7 right to support
the Union. Here , Fotter aggressively pressed Israel to di-
vulge her attitude toward the Union.
A further significant factor in my analysis stems from
the unlawful wage increase that the Respondent granted
Israel in the same month when some of the interrogation
occurred. As noted below, the Respondent 's design in
granting the wage increase to Israel was to suggest "that
the source of benefits now conferred is also the source
from which future benefits must flow and which may
dry up if it is not obliged." NLRB v. Exchange Parts Co.,
375 U.S. 405, 409 (1964). In the wake of a wage increase,
Fotter's references to how good the Respondent had
been to Israel , together with his references suggesting
that he was personally affronted by her continued sup-
port for the Union, were likely to cause Israel to fear
that her answers to Fotter or her support for the Union
might provoke the Respondent to punish her. I find,
therefore, that by Fotter's repeated interrogation of em-
ployee Israel, the Respondent violated Section 8(a)(1) of
the Act. 1 s
During the latter half of January 1982, Supervisor
Anna Beth Herold asked one of her subordinates, li-
censed practical nurse Diana McMillen, who was then
working on the hospital's first floor, to accompany her
18 Robert Fotter's denial that he ever asked Barbara Israel why she
would be a union supporter is clouded by doubt Fotter contributed to
this doubt when he testified - "I asked questions like I don 't understand
what, you know , people are after at this point, what some people are
after . Something like that " Fotter also testified in substance that he did
not recall saying to Israel in a discussion regarding her support for the
Union "why are you doing this to me? " In his response to questions on
direct examination regarding the topic of interrogation , his initial testimo-
ny was to the effect that it was unlikely that he engaged in such interro-
gation because management had instructed supervisors not to do so It
was only after I cautioned him such a qualified response suggested that
perhaps he had engaged in such interrogation that he denied questioning
Israel about her prounion sentiment
I also noted from his testimony that Fotter and his superior, Charles
Vogt, were concerned about the union sentiments of employees. Their
concern arose in the wake of Rieseberg 's instruction that management ex-
plore the extent of the Union's strength in discussions with employees
This circumstance , together with my impression that Fotter was reluctant
about providing testimony about his conversations with Israel , cast seri-
ous doubt on his denials
Finally, in contrast to Fotter, Israel impressed me as a more forthright
witness, giving her best recollection of his remarks to her Accordingly, I
have rejected Fotter 's testimony where it conflicted with that of Israel
19 In its brief (R Br 64-65), the Respondent for the first time contend-
ed that the allegation that Fotter unlawfully interrogated Israel should be
dismissed on the ground that it was barred by the 6-month limitation of
Sec. 10(b) of the Act. In support of this contention , Respondent relied on
its counsel 's representation that this allegation "was specifically investi-
gated" and was "dropped " However, the Respondent provided neither
testimony nor other evidence on the record to support this contention
In any event, the Respondent 's contention came too late It is settled
law that Sec 10(b) of the Act is a statute of limitation and as such is an
affirmative defense, which , if not timely raised, is waived Taft Broadcast-
ing Co, 264 NLRB 185, 190 (1982). By waiting until its posthearing brief
to raise this issue, the Respondent waived its 10(b) defense McKesson
Drug Co, 257 NLRB 468 fn 1 (1981) Accordingly , I find no ment in its
contention that the 6 -month limitation in Sec 10(b) of the Act bars my
finding that Fotter's interrogation violated Sec 8(a)(1) of the Act
to the second floor conference room. When they reached
their destination, Herold gave McMillen some antiunion
pamphlets and began talking to her about the Union.
Herold asked: "Do you realize that 1199 has a long
strike record?" When McMillen answered: "Yes,"
Herold continued: "Do you realize that once they get in
that you won't get them out?" To this, McMillen re-
sponded: "Well, it doesn't matter. I've weighed both
sides objectively, and I'm still going to vote for the
union." At this, Herold asked: "Do you think you're
being a good christian by voting for the union?" McMil-
len responded: "Yes. Do you think you're being a good
christian [to] bring me into this conversation?" At this
Herold asked : "Do you feel threatened by this conversa-
tion?" The employee answered: "No. I feel threatened
by what you're trying to put over on me."20
I find that Supervisor Herold coercively interrogated
McMillen when she asked if McMillen thought she was
"being a good christian by voting for the union."
Herold, who was McMillen's immediate supervisor, cre-
ated a coercive setting in which to ask questions de-
signed to determine how firmly McMillen was for the
Union. Herold suddenly removed McMillen from a work
station to the conference room, shut the door, and began
an antiunion lecture that led to that question. In light of
the Respondent's other unfair labor practices, as found
elsewhere in this decision, demonstrating its union
animus, I find that Herold's interrogation of McMillen
was coercive and thus violated Section 8(a)(1) of the
Act. Rossmore House, supra.
4. The restriction of Sharon Jackman
From October 1981 until August 1982 the Respondent
employed Sharon Jackman as a ward clerk on its 3-11
p.m. shift under the immediate supervision of Evening
Supervisor Pamela Emery. Jackman spent most of her
time working at the second floor nursing station. She
spent a considerable portion of her workday performing
duties elsewhere in the hospital. The duration of each of
her absences from the second floor did not exceed 1
hour. Before leaving the second floor nursing station,
Jackman's practice was to leave word with the charge
nurse as to her destination.
Prior to and during the Union's organizing campaign,
Jackman felt free to stop on her rounds and chat for a
few minutes with other on-duty employees.
Jackman was entitled to a 30-minute supper break and
two 15-minute coffeebreaks during her shift. She could
take her breaks in a second floor conference room, in the
lobby, or in the out-patient breakroom. She frequently
combined a break with an errand away from the second
floor.
20 I draw my findings regarding this incident from McMillen's
straightforward testimony Herold 's testimony regarding the incident con-
tained denials followed by partial concessions and "I don't remember ex-
actly what I said " There were also instances of self-contradiction, par-
ticularly on cross-examination when Herold testified about the purpose of
her meeting with McMillen . These infirmities in Herold 's testimony and
her apparent reluctance at times to answer questions on cross-examination
diminished her credibility I have therefore credited McMillen, who was
a more forthright witness, and whose testimony was more consistent
SPRINGFIELD HOSPITAL
Jackman , an active union supporter, wore a union
button beginning in September or October 1981 and was
active throughout the Union's organizing campaign. Her
supervisor, Emery , was aware of Jackman 's prounion
sentiment and activity.21
On the night of 25 January 1982 Supervisor Emery
complained that Jackman was spending too much time
away from the nurses ' station. Emery also admonished
Jackman for not following her job description, spending
too much time away from the nurses ' station , and "talk-
ing union all the time," and that this activity had to stop.
Emery said that if Jackman had to bring something to
the laboratory, she should complete the task, get back to
the second floor nurses' station , and "stay put."22 I find
that by her remarks to Jackman , Emery sought to inhibit
Jackman from spreading her prounion sentiments to
other employees. By Emery's remarks in this regard, the
Respondent violated Section 8(a)(1) of the Act. S. S.
Kresge Co., 229 NLRB 10, 14 (1977).
5. The granting of wage increases to employees
during the preelection campaign
a. Facts23
(1) Gay, Cenate, and Israel
In August 1981 Patient Accounts Manager Robert
Fotter and Personnel Assistant Susan Jacques decided to
hire two additional outpatient receptionists for the Re-
spondent. In her effort to recruit Linda Rounds for one
of the receptionist positions, Jacques assured her that her
starting hourly rate would be $4.50. At the time of this
discussion, Jacques did not know the hourly rates for the
three outpatient receptionists in the Respondent's
employ. She believed they were receiving less than $5.25
per hour. In fact, when Jacques was recruiting Rounds,
the Respondent's starting hourly rate for outpatient re-
ceptionists was $3.75.
Robert Fotter, who supervised the outpatient recep-
tionists, and Jacques suggested the $4.50 starting rate to
Fotter's immediate superior, Director of Finance Charles
J. Vogt, who rejected it as excessive. However, Vogt,
Fotter, and Jacques agreed that Rounds' starting wage
would be $4.02 an hour, with the understanding that at
the end of her 90-day probationary period her rate
would increase to $4.50.
Respondent hired Rounds on the weekend of 5 Sep-
tember 1981 as an outpatient receptionist under the terms
that Vogt, Fotter, and Jacques had agreed to. Fotter ad-
mitted that the Respondent normally did not tell new
employees what hourly wage they could expect to obtain
at the end of their probationary period. However, Susan
21 The facts regarding Jackman 's work schedule and practices, her
union activity , and Supervisor Emery 's awareness of Jackman 's support
for the Union are based on a composite of their testimony.
22 I base my findings regarding Emery 's remarks on Jackman 's testi-
mony . In contrast with Jackman , who seemed to be at ease while testify-
ing about this incident , Emery appeared ill at ease under cross -examina-
tion . Further , on cross-examination by counsel for the General Counsel,
Emery seemed reluctant to present a full account of her remarks to Jack-
man on 25 January 1982.
23 Except as otherwise indicated the facts regarding this allegation are
undisputed.
657
Jacques advised Linda Rounds that she would receive
$4.50 per hour at the end of her 90-day probationary
period.
Approximately 3 weeks later , the Respondent hired a
second receptionist , Lynn Thurston, whose starting
hourly wage was also $4.02 with the understanding that
at the end of her 90-day probationary period her rate
would increase to $4.50.
At the time Vogt, Fotter, and Jacques met regarding
Rounds' starting rate, they also agreed that when they
increased Rounds' hourly rate to $4.50 , they would raise
the hourly rates of the three current outpatient recep-
tionists . The hourly rates of the three outpatient recep-
tionists in August 1981 were as follows : Susan Gay-
$4.09; Judy Cenate-$3.75; and Barbara Israel-$3.65.
In August 1981 Vogt , Fotter, and Jacques also decided
that in December they would adjust all the wages of the
outpatient receptionists . At the time of that decision, the
three were aware of the Union's organizing campaign.
Indeed, the Respondent was then actively engaged in an
antiunion campaign.
Effective 28 September 1981 the Respondent raised
Gay's hourly wage rate by 12 percent to $4.58 per hour.
On the same date, the Respondent raised Cenate's hourly
wage by approximately 14 percent to $4.27 per hour, and
Israel 's hourly wage by 15 percent to $4.20 per hour.
These increases were granted pursuant to the Respond-
ent's policy of granting annual merit increases to its em-
ployees in September.
As found above, during November and December
1981 , Robert Fotter visited Israel 's work station where
he talked about the Union and gave literature to her. I
have also found that Fotter recognized that Israel was an
active union supporter and repeatedly questioned her
motive for assisting the Union . On 30 November 1981
Linda Rounds completed her probationary period. Effec-
tive that same day, the Respondent raised her hourly
wage to $4.50. Three weeks later, when Lynn Thurston
completed her 90-day probationary period , the Respond-
ent raised her hourly wage from $4.02 to $4.50.
Effective 21 December 1981, the Respondent granted
increases to Susan Gay , Judy Cenate, and Barbara Israel.
The Respondent raised Gay 's hourly rate by 9 percent,
from $4 .58 to $5. Judy Cenate's hourly wage was en-
hanced at the rate of 9 percent, from $4.27 to $4.65 per
hour . Barbara Israel received a 15-percent wage increase
on 21 December 1981. Her new hourly rate was $4.85.
In documenting the wage increases that it granted to
Gay, Cenate, and Israel , the hospital gave as a reason for
these changes "Re-evaluation of existing job." In addi-
tion, each of the three change slips addressed to the pay-
roll department bore the following notation:
After reviewing other Hospital positions, it was de-
termined that the starting rate per hour OPD Re-
ceptionist was below that of comparable positions
within the Hospital. Consideration has been going
on for some time for the upgrading of this position.
This increase will maintain the equity of the wage
structure within the Hospital.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vogt and Fotter signed each of the three wage change
slips on 23 December 1981.
In their testimony, both Fotter and Vogt conceded
that the wage increases they granted to Gay, Cenate, and
Israel in December 1981 were unusual. Fotter admitted
that these wage increases "needed an explanation because
[they were not] for an annual increase." Vogt admitted
that the wage adjustments for these three outpatient re-
ceptionists were "out of what [he] would call the norm."
Fotter also testified in substance that prior to December
1981, during his 2-1/2 years as the Respondent's patient
accounts manager, employees under his supervision had
received only annual increases. Vogt also conceded that
since the inception of his employment at the hospital in
April 1979, the December 1981 increases accorded Gay,
Cenate, and Israel marked only the second time a nonan-
nual wage increase had been granted by the Respondent
to employees under his supervision.
I find from Jacques' testimony that before deciding on
the amounts, the Respondent recognized the unusual
nature of the December 1981 wage increases it contem-
plated granting to Gay, Cenate, and Israel, and therefore
sought the advice of its attorneys on the matter. In late
November 1981 Fotter, Vogt, and Jacques decided on
the amounts of the contemplated increases.
(2) Temple
In September 1981 the Respondent's chief switchboard
operator, Flora Young,24 evaluated switchboard opera-
tor Ruby Temple's performance as "very unsatisfactory."
At the end of that month, Supervisor Young met with
Temple and advised her that her annual wage increase
would be small for that reason.
At the time of the counseling session, Temple was one
of seven employees under Young's supervision. In Sep-
tember 1981 Young evaluated three other operators in
addition to Temple. Based on Young's recommendations,
the Respondent granted the following increases effective
28 September 1981: Joyce Keneson, 33 cents per hour;
Mary Lane, 56 cents per hour; Helen Drake, 44 cents an
hour; and Ruby Temple, 30 cents per hour.
Flora Young's written evaluation of Ruby Temple
dated 22 September 1981 appeared on an evaluation form
setting forth 10 elements of performance and an 11th
paragraph to be used as a summary. On 4 of the 10 ele-
ments, Young rated Temple as below average. Young
evaluated Temple below average in the quality of her
work with the following explanation:
Admissions frequently exhibited strikeovers, trans-
posed numbers, and other careless errors. During
the week of Aug. 24 her work in this area im-
24 I find from Young's testimony that since May 1981 she has been
responsible for the general operation of the Respondent's communications
department It is undisputed that she interviews and hires new employees
I also find that Young regularly evaluated the six employees of the com-
munications department and effectively recommended the granting of
wage increases to them as evidenced by the wage increases discussed
below in this section of my decision I find from these facts that since
May 1981 Flora Young has been a supervisor within the meaning of Sec
2(11) of the Act
proved, but it has since reverted to an unsatisfac-
tory level.
Young also rated Temple below average in dependability
with the following explanation:
Always available when needed, but admission forms
and related insurance form have been poorly done.
I believe she can do the job well, but she apparently
needs to be closely supervised.
Supervisor Young considered Ruby Temple to be
below average with respect to cooperation and loyalty.
Young's comments regarding cooperation was as follows:
"Ruby has never exhibited a cooperative attitude toward
this chief operator." Young's explanation with respect to
her evaluation of Temple's loyalty was as follows: "I
have seen no evidence of loyalty or support toward this
supervisor or the hospital." Ruby's performance in the
remaining six elements received an average rating.
Young rated Temple's overall performance as below
average and provided the following written commentary:
Ruby is an efficient operator on the switchboard.
She is always on time and has a pleasant voice.
However, she seems to draw a sharp, invisible line
between operation of the switchboard and admitting
procedure. I do not think she is incompetent.
Rather, she just doesn't want to do admissions.
At the time she counseled Temple in September 1981,
Young warned that Temple's continued employment at
the hospital required improvement in her job perform-
ance. Prior to Temple's September evaluation, Young
had received a stream of complaints from the hospital's
admitting office and from physicians regarding Temple's
work in the preparation of forms relating to the admis-
sion of patients.
Despite Young's efforts, Temple did not improve her
performance. According to Young, Temple remained de-
fiant and continued to insist that the Respondent should
not require switchboard personnel to perform duties re-
lated to the admission of patients.
In mid-November 1981 Supervisor Young asked Per-
sonnel Manager Jacques if there was a method for re-
evaluating Ruby Temple's job performance, which, ac-
cording to Young, had improved "markedly" since Sep-
tember 1981. Jacques advised Young that under the Re-
spondent's policy there were three merit wage increase
levels, 8 percent was for the lowest performance, 10 per-
cent for average performance, and 12 percent for superi-
or performance.25
At the time that Young and Jacques discussed the pos-
sibility of granting a reevaluation and a second wage in-
crease to Temple, both were aware of the Union's orga-
nizing campaign. Jacques was also aware that there was
a union representation petition pending before the Board
for a unit of hospital employees, including Ruby Temple.
22 I find from Jacques' testimony that the 8-, 10-, and 12-percent guide-
lines she told Young about did not apply to the annual evaluation In-
stead, they were for probationary employees who were evaluated after
the annual wage increase
SPRINGFIELD HOSPITAL
Neither Jacques nor Young consulted his respective su-
periors regarding the propriety of giving a wage increase
or reevaluation to Temple in the face of the Union 's peti-
tion and organizing activity.
On 8 December 1981 Supervisor Young prepared a
new evaluation for Temple . Young evaluated Temple as
being between average and above average on 2 of the 10
performance elements, above average on 7, and average
on only 1 . In her overall appraisal , Young gave Temple
an above-average rating with the following comment:
I am very pleased with Ruby's performance during
the last couple of months . Her work is much im-
proved and her attitude has also changed in a posi-
tive way.2°
Young also evaluated Temple 's loyalty as above aver-
age, and commented as follows:
I feel that Ruby has accepted me as a supervisor
and is now determined to do the best job possible.
On 8 December 1981 Young authorized a 40-cent
hourly wage increase for Temple effective 7 December
1981 . Prior to preparing the reevaluation and the wage
change, Young obtained the approval of her superior,
Director of Support Services Peter Hofstetter, who was
aware of the pending election and the union organizing
campaign.
Joyce Keneson , whose October 1981 hourly wage in-
crease was only 3 cents higher than that granted to
Temple, did not receive a reevaluation . Nor did any of
the other switchboard operators under Young 's supervi-
sion receive similar treatment.
As a result of her September 1981 evaluation Temple
received a wage increase of approximately 10 percent.
The highest wage increase that Young authorized as a
result of her September 1981 evaluations of her switch-
board operators went to Mary Lane , who received ap-
proximately 15 percent . The total of Temple's September
and December 1981 wage increases was 18 -2/3 percent.
I find from Peter Hofstetter's testimony that in 1982
Temple received an evaluation that classified her as "just
a little above average." Hofstetter also conceded that the
improvement reflected in Young 's evaluation of Temple
in December 1981 was "short lived."
b. Analysis and conclusions
As the Board declared 10 years ago in Wintex Knitting
Mill, 216 NLRB 1058 (1975):
It is well established that the announcement of a
wage increase during the pendency of a representa-
tion petition for the purpose of stifling an organiza-
tional campaign constitutes unlawful interference
and coercion... .
An employer's legal duty in deciding whether to
grant benefits while a representation petition is
pending is to determine that question precisely as if
se I find from Young's testimony that during the period from Septem-
ber to December 1981, she received the most complaints about switch-
board operator Helen Drake's work and the second most complaints in
that regard about Ruby Temple's.
659
a union were not in the picture. An employer's
granting of a wage increase during a union cam-
paign "raises a strong presumption" of illegal-
ity.... In the absence of evidence demonstrating
that the timing of the announcement of changes in
benefits was governed by factors other than the
pendency of the election, the Board will regard in-
terference with employee freedom of choice as the
motivating factor . The burden of establishing a jus-
tifiable motive remains with the employer.
Here , the General Counsel has shown that while the
Union's organizing campaign was underway , the Re-
spondent granted unusual wage increases to outpatient
receptionists Gay, Cenate, and Israel and to switchboard
operator Temple , all of whom were potential voters in
the expected representation election . The Respondent
implemented these decisions in December 1981 while the
Union's representation petitions were pending before the
Board . Indeed , the hearings on those petitions had con-
cluded on 18 November 1981 . Thus, the timing of these
wage increases required explanation from the Respond-
ent.
The Respondent 's attitude toward the Union's cam-
paign suggested that the motive for the challenged wage
increases was to defeat the Union. According to Hofstet-
ter, during the fall of 1981 , and until the Board-held elec-
tion on 4 February 1982 , the Respondent's management
considered the union campaign of secondary importance.
However, in the autumn of 1981 the Respondent hired a
management consultant firm , and engaged in a variety of
antiunion activities , including discussions between man-
agement and employees and distribution of antiunion lit-
erature . During the same period , the Respondent mani-
fested its animus toward the Union and prounion em-
ployees by various unfair labor practices found else-
where in this decision . In light of these circumstances, I
do not credit Hofstetter 's assertion that the Respondent's
management considered the Union 's campaign an unim-
portant matter . Instead, I find that the Respondent's
management saw the advent of the Union as a mortal
threat to the hospital's successful operation. Therefore,
contrary to Hofstetter's testimony, I find that the Re-
spondent's management, including Administrator Riese-
berg, Vogt, Hofstetter , Jacques, Fotter, and Young, con-
sidered their employees ' sentiments toward the Union a
matter of prime concern during the fall of 1981 and
thereafter until the election on 4 February 1982.
Absent an explanation showing that a concern other
than the Union and the pending representation election
prompted the Respondent's generosity toward the four
employees, the record supports the allegation that the
Respondent granted the four wage increases in Decem-
ber 1981 to Gay, Cenate, Israel , and Temple for the ex-
press purpose of persuading them to vote against the
Union in the Board elections . The facts recited above
make it apparent that the wage increases granted in the
midst of the preelection campaign, and so soon after the
hearings on the Union's representation petitions had con-
cluded, were designed to suggest to the four employees
"that the source of benefits now confirmed is also the
source from which future benefits must flow and which
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may dry up if not obliged." NLRB v. Exchange Parts
Co., 375 U.S. 405, 409 (1964).
The Respondent urged that it granted wage rate in-
creases to employees Gay, Cenate, and Israel in Decem-
ber 1981 for valid business reasons. Specifically, the Re-
spondent sought to explain these three wage increases as
application of its wage policy, which required it "to
reward more senior employees with increased pay" (R.
Br. 76), and on the additional ground that higher rates
"were needed to attract and retain qualified employees
and reduce employee turnover." (Ibid.)
However, I find that the record fails to support the
Respondent's explanation. Charles Vogt, the Respond-
ent's director of finance and the controlling figure in the
decisions leading up to the December 1981 wage in-
creases granted to Gay, Cenate, and Israel, explained
those adjustments as follows:
Well, we had a candidate that started higher than
normal [Rounds] and thus they put the pay scale in
an unequal basis , so what we had to do is go back
and look at the tenure, length of stay for all the
other employees and their job performance and
adjust accordingly.
Although Vogt, under cross-examination, insisted that
the Respondent had considered both tenure and quality
of performance in deciding on wage increases, the Re-
spondent failed to offer into evidence any performance
evaluations for Rounds, Gay, Cenate, or Israel to cor-
roborate his testimony. Also, the Respondent did not
raise the performance factor in its brief.
Robert Fotter also omitted "job performance" as a
factor in the wage increases. Fotter, who participated
with Vogt in the discussions leading up to the December
1981 wage increases for the three incumbent outpatient
receptionists, testified that in August 1981 he, Susan
Jacques, and Vogt decided on the December 1981 in-
creases because they noted that the three incumbent out-
patient receptionists with more tenure and more experi-
ence would be making less than the newly hired Rounds
and Thurston when their respective 3-month probation-
ary periods ended.
Nor did Vogt's testimony regarding wage increases
that he authorized for his departments in 1979 demon-
strate the existence of a hospital policy regarding wage
inequities . According to Vogt, he "adjusted wages where
it was so appropriate." How he arrived at his determina-
tion of appropriateness was left to conjecture. The work-
sheets he referred to in his testimony did not show that
inequities in fact existed in the wages received by the
employees under his supervision. Here, again, the Re-
spondent failed to corroborate Vogt's testimony with
written work evaluations or wage and tenure compari-
sons.
Vogt's testimony regarding wage adjustments in the
Respondent's dietary department in March 1981 did not
demonstrate the existence of the asserted wage policy.
Thus, his testimony failed to demonstrate whether tenure
alone or tenure and performance determined the wage
increases that the Respondent granted in that instance.
Administrator Eric Rieseberg's testimony suggested that
tenure alone was the determining factor. Here, again, the
Respondent neglected to provide any personnel records
or other written documentation that might have shed
light on the dietary department's 1981 wage adjustments.
I find that the Respondent has not substantiated its
claim that its decision to grant wage increases to Gay,
Cenate, and Israel in December 1981 was the product of
a policy requiring its employees to be compensated ac-
cording to their tenure. Indeed, the Respondent has not
shown any internal policy mandating such increases.
Moreover, even if, as Vogt testified, tenure was also a
factor in such wage adjustments, the Respondent has not
produced any records or other written material to cor-
roborate his testimony. The quality of Vogt's testimony
raised doubt as to its reliability. Vogt testified that he
could not remember either the amounts of the 1979 wage
increases that he recommended or the identity of the em-
ployees who received them. Further, Vogt consistently
claimed that he had a poor memory when cross-exam-
ined about his conversations with Fotter and Jacques in
August 1981 and at the subsequent meetings regarding
the increases. Nor did he appear to be trying to recall
the details of these conversations. On several occasions
on cross-examination , Vogt appeared reluctant to
answer. He resorted to evasion, either by giving unre-
sponsive answers or by being slow about giving any
answer at all. These observations persuaded me that
Vogt was not providing his full recollection of the proc-
ess leading up to the three December 1981 wage rate in-
creases in which he had taken the leading role.
Finally, I find from the Respondent's unexplained fail-
ure to produce written evaluations similar to those of-
fered in its attempt to justify Ruby Temple's December
1981 wage increase that such written evaluations either
did not exist for the three outpatient receptionists or that,
if they did exist, they were not sufficient to warrant the
wage increases granted to Gay, Cenate, and Israel in De-
cember 1981. Grandee Beer Distributors, 247 NLRB 1280,
1284 (1980); Martin Luther King Sr. Nursing Center, 231
NLRB 15 fn. 1 (1977). In sum , I find the Respondent
failed to show that its decision to give Gay, Cenate, and
Israel wage increases in December 1981 was occasioned
by any established personnel policy.
Nor do I find that the record substantiates the Re-
spondent's claim that employee turnover and recruiting
problems caused it to make the December wage rate ad-
justments for the three outpatient receptionists. Neither
Vogt nor Fotter nor Jacques testified that turnover
among the outpatient receptionists played any part in
their decision to grant the December 1981 wage in-
creases to Gay, Cenate, and Israel . The Respondent ne-
glected to present any statistics or records showing that
the asserted employee turnover existed. Therefore, I find
no merit in the Respondent's contention that employee
retention was a business reason for the December 1981
wage increases for those three employees.
Nor did the evidence adequately support the Respond-
ent's claim that recruiting problems confronted it in the
summer of 1981. Attempting to establish this latter busi-
ness reason, the Respondent relied on Fotter's testimony
to show that it was experiencing difficulty in attracting
SPRINGFIELD HOSPITAL 661
qualified applicants for its outpatient receptionist posi-
tion . According to Fotter, in August 1981 he urged that
the entry rate for outpatient receptionist be raised from
$3.76 per hour to $4.02 "[ i]n order to get the type of ap-
plicant we wanted ." However, neither Fotter nor any
other witness provided any specifics either concerning
the "type of applicant" wanted or the claimed difficulty
in recruiting . Absent was any showing of instances in
which the Respondent had been unable to recruit a suita-
ble person because of a low starting wage rate.
On the contrary, Susan Jacques testified, in substance,
that she found no shortage of adequately skilled appli-
cants for the two outpatient receptionist positions she
sought to fill in the summer of 1981. As the Respond-
ent's personnel assistant, Jacques was responsible for
screening applicants for those positions . From that van-
tage point, it was likely that she was better able to evalu-
ate applicants seeking the outpatient receptionist posi-
tions . Accordingly, I have credited her assessment of the
recruiting situation in August 1981 . I find that the Re-
spondent has not shown that recruitment problems neces-
sitated the increase in initial hiring rates that it granted
to Linda Rounds and Lynn Thurston in August 1981.
Absent from the record was any data to corroborate
the suggestion in Fotter's testimony that the incumbent
outpatient receptionists were not performing up to an es-
tablished standard . Indeed , on cross-examination Fotter
conceded that he was satisfied with the performance of
the three outpatient receptionists who were in the Re-
spondent's employ in August 1981.
Nor am I persuaded by Fotter's and Jacques' testimo-
ny that their decision to upgrade the wage rates for the
outpatient receptionists was motivated by a desire gener-
ally to upgrade the performance in that classification.
Again, their testimony was free of any claim that the in-
cumbents were not performing satisfactorily . Nor did
they show a need for a higher level of performance by
the Respondent's outpatient receptionists.
Turning to the Respondent 's explanation of the merit
increase granted to switchboard operator Ruby Temple
in December 1981 , I find it unpersuasive . According to
Peter Hofstetter, Flora Young, Temple' s immediate su-
pervisor, and Respondent 's brief (R. Br. 78-79), Temple
received the December 1981 increase because of her im-
proved performance during October and November
1981.
However , Young's testimony cast doubt on Hofstet-
ter's testimony and the above-average rating Young con-
ferred on Temple's performance for October and No-
vember 1981 in her December 1981 reevaluation. Young
conceded that during October and November 1981 Tem-
ple's work received the second highest number of com-
plaints among the switchboard operators under Young's
supervision . Young also conceded that during that same
period Temple showed the same resentment she had ex-
hibited earlier toward the requirement that she complete
patient admission forms as part of her job duties.
Despite Young's admissions, her December summary
made no reference to Temple's persistent negative atti-
tude toward admitting procedures . Nor did the continu-
ing complaints about Temple's work surface in that eval-
uation . These two factors suggested that the above-aver-
age estimate that Young conferred on Temple in Decem-
ber 1981 was an exaggeration.
My impression that Young was not a frank witness
contributed to my doubt regarding the December evalua-
tion . Young's answers to questions regarding the possible
effect of the union campaign on her decision to reevalu-
ate Temple suggested that she was more concerned
about protecting the Respondent from a finding of a vio-
lation than she was in providing her best recollection.
Thus, when asked if she had discussed the union activity
or the Union's representation petition with her supervi-
sor, Peter Hofstetter , Young was not responsive . Instead,
she protested that "there was no connection between
Ruby Temple's work and the Union."
Young 's credibility with respect to her motive in re-
evaluating Temple again suffered when Young attempted
to explain her definition of "loyalty" as that word ap-
pears in the Respondent's employee evaluation form.
Young's initial response was:
[L]oyalty to the supervisor and loyalty to the Hos-
pital means that you're doing a good job so that the
Communications Department is run in a safe
manner . The safety of patients, of people calling in
from the outside, often depends on the operator.
However , later in her testimony Young associated the
definition of loyalty with union sentiment when the Re-
spondent's counsel asked:
Your answer which we've been over several times,
on the question of loyalty in the September evalua-
tion, did that have anything to do with Ruby Tem-
ple's activities or non-activities regarding the union?
To this, Young responded:
I never saw Ruby wearing a union button. She
never discussed union with me or in front of me. I
have no way of knowing whether she was a union
sympathizer or not.
Later, under cross-examination, Young again associat-
ed "loyalty" with Temple's sentiment toward the Union.
Young conceded that loyalty meant "allegiance to the
policies or to the principles of the organization." This
last concession persuaded me that Young was not candid
either when she completed Temple 's second evaluation
or when she testified initially regarding her definition of
loyalty as it appeared in that document . Young's shifting
position on the definition of loyalty together with her
gratuitous linkage of loyalty to her perception of Ruby's
union sentiment suggested that when Young completed
the December 1981 evaluation, she may have viewed
Temple as a potential vote for the Respondent . Thus did
her testimony generate serious doubt that Temple's im-
proved performance as a switchboard operator motivat-
ed Young to upgrade Ruby's evaluation.
Peter Hofstetter 's testimony cast further doubt on the
Respondent's explanation of Temple's reevaluation. His
testimony was that in November he authorized Young to
reevaluate Temple after he had observed a marked im-
provement in Temple's performance. However , Hofstet-
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ter admitted observing that during the Union's preelec-
tion campaign Temple "never wore a button one way or
the other and to my knowledge, she never participated
in any pro or antiunion activities." When counsel asked
Hofstetter if he and Young ever discussed Temple's sen-
timent toward the Union, he responded: "Not really, it
wasn't that important at that point." When I sought clar-
ification of "[n]ot really" he answered : "I don't remem-
ber specifically talking to her about that."
Hofstetter 's indifferent responses to questions regard-
ing his possible concern about Temple's attitude toward
the Union and his denial that her attitude had anything
to do with her December 1981 reevaluation and wage in-
crease did not square with the Respondent's conduct
during the preelection period. In November and Decem-
ber, after the hearings on the Union's representation peti-
tions, the Respondent's management was actively oppos-
ing the Union 's organizing effort among its employees.
In addition, I find from Vogt's testimony, that the Re-
spondent's management was monitoring individual em-
ployee attitudes toward the Union and reporting their
observations to Rieseberg. Peter Hofstetter, who pro-
fessed indifference in his testimony regarding Temple's
union sentiment, participated in the monitoring of senti-
ment, and actively participated in the antiunion activity
as a senior member of management . Hofstetter's active
opposition to the Union's organizing effort made it un-
likely that he was indifferent to Temple' s union senti-
ment. I find that he, as did Young, looked on Temple as
a potential vote for the Respondent in the coming repre-
sentation election.
In sum, I find that the Respondent has failed to sustain
its defense to the allegation that the December 1981
wage increases that it granted to Gay, Cenate, Israel, and
Temple were motivated by lawful business reasons. In-
stead, I find that the conferral of wage increases on Gay,
Cenate, Israel , and Temple was motivated by an intent to
interfere with their freedom of choice in the coming rep-
resentational election and was therefore violative of Sec-
tion 8(a)(1) of the Act.27
6. The no-solicitation rules and their enforcement
a. Facts
The record contained three no-solicitation rules. The
first appeared under the heading "solicitations" in the
Respondent's employee handbook, which it began issuing
in 1978. It read:
Solicitations are not permitted by employees for
any purpose during working time. An employee
may not engage in solicitation of other employees
while they are working. There can be no solicita-
tion at any time in patient care areas.
27 Having found that Young and Hofstetter granted the December
1981 wage increase to Ruby Temple for the purpose of influencing her
vote in the coming representation election, I find it unnecessary to decide
whether , as the Respondent claimed (R Br. 78 fn 19), the amount of in-
crease resulted from inadvertent error. The issue of whether the increase
violated Sec 8(a)(1) of the Act rested on the finding of unlawful motive
The amount of the wage increase in these circumstances was immaterial.
Violations of these rules may result in discipline,
including discharge. We ask you to report any vio-
lation of these rules that you see.
The Respondent distributed the 1978 handbook, in-
cluding the quoted rule, to new employees until the
spring of 1981.
On 1 August 1981 the Respondent promulgated the
following statement of policy regarding employee solici-
tation:
In order to protect employees, patients and visitors
from any form of solicitation, raffle, charity drive,
etc., it is strictly prohibited for anyone to solicit em-
ployees, patients, or visitors on any matter during
working time or in working areas without written
approval from the Administrator.
Thereafter, on 17 August 1981, the Respondent pro-
mulgated a second policy regarding employee solicita-
tion:
C. Solicitation: In order to prevent interference
with the Hospital's patient care responsibilities, em-
ployees must observe the following rules:
2. Employees-Every employee's work deserves
his or her full attention during scheduled working
time. Employees may not, therefore distribute litera-
ture in working and patient care areas of the Hospi-
tal at any time. Employees may not solicit other
employees for any purpose during scheduled work-
ing time . Employees may not solicit other employ-
ees for any purpose at any time in an area strictly
devoted to patient care, such as patients' rooms, op-
erating rooms , and patient treatment areas, such as
x-ray and therapy areas. In addition, employees may
not solicit in corridors or sitting rooms adjacent to
operating or therapy rooms. An employee who is
on his/her free time or break time may not solicit
or distribute literature to employees who are work-
ing.
The Respondent included the last-quoted rule in a
statement of policies signed by Administrator Eric F.
Rieseberg. Rieseberg's initial testimony was that the
policy promulgated on 17 August remained in effect
from that date through early 1982. Later, on cross-exami-
nation, he conceded that he could not state with total
certainty that the 17 August 1981 no-solicitation policy
remained in effect in the fall of 1981 or in early 1982.
Further, the General Counsel did not produce any testi-
mony or other evidence to show whether that policy
was actually promulgated to employees. Considering the
press of his responsibilities at the hospital, I credit Riese-
berg's uncontradicted testimony that he did not know
whether the rule of 17 August 1981 ever reached the
new hospital policy manuals.28 However, I find from the
28 In the summer of 1981 Administrator Rieseberg directed his depart-
mental heads to prepare written departmental policies regarding their re-
spective functions and to submit them for his review and signature He
Continued
SPRINGFIELD HOSPITAL 663
exhibits setting forth the rules and from Rieseberg's and
David LaPlante's testimony regarding the new manuals
that both policies did reach the manuals.
The circumstances leading to the promulgation of the
new manual are undisputed.
The record shows that after 17 August 1981 the Re-
spondent actually had in effect two no -solicitation poli-
cies in its policy manual and a no-solicitation rule in em-
ployee handbooks. The rule of 1 August 1981 appeared
in the manual as an administrative policy and the rule of
17 August 1981 came into the manual as a personnel
policy. I find from the testimony of Lieutenant Francis
L. Chadbourne of the Springfield Police that on 1 Febru-
ary 1982, when he requested copies of the Respondent's
policies regarding solicitation , Peter Hofstetter presented
to him the policies promulgated on 1 and 17 August
1981. Hofstetter, a senior member of the Respondent's
management , was involved in enforcement of hospital
rules and policies. His response to Chadbourne's request
reflected the Respondent's attitude toward the two poli-
cies. I find, therefore, from Hofstetter' s conduct that the
Respondent considered both policies to be in current
force and effect between the dates of their promulgation
and until at least 1 February 1982. Finally, there was no
showing that the Respondent ever specifically rescinded
the 1978 employee handbook or the no-solicitation rule it
contained . Administrator Rieseberg admitted that as far
as he knew the Respondent had not expressly rescinded
the 1978 no-solicitation rule.
However, in October 1981 Susan Jacques held in-serv-
ice meetings with groups of the Respondent 's employees
at which she reviewed the titles of the policies in the Re-
spondent's new manual . There were about 40 personnel
policies for review. Attendance at these meetings was
voluntary. The record does not reveal how many em-
ployees attended.
It was the Respondent's intention that where personnel
policies in the new manual differed from those in the
1978 employee handbook , the new manual 's policies
would prevail. At her October 1981 in-service meetings,
Jacques announced that the new manual policies would
supersede "any other handbook or set of policies." How-
ever, Jacques did not read aloud either the solicitation
policy of 1 August 1981 or the solicitation policy of 17
August 1981.29
also advised them that he would return the signed departmental policies,
together with written administrative and personnel policies , which would
constitute the new departmental manuals . Rieseberg undertook responsi-
bility for preparing the administrative and personnel sections of the new
manuals . Rieseberg also instructed his departmental heads that once the
new manuals were approved and turned over to them , they would consti-
tute the departmental policy manuals. Each departmental head was to
notify his subordinates of the existence of the new manual, make it avail-
able to them, and maintain it within the department. By approximately
Labor Day 1981 , the departmental heads had completed their portions of
the manual and submitted them to Rieseberg for approval . Thereafter,
during the first or second weeks of September , Rieseberg returned the
completed manuals including administrative and personnel policies to the
departmental heads for disposition in accordance with his earlier instruc-
tions.
29 On cross-examination , Rieseberg credibly testified that he could not
remember whether the no-solicitation policy dated 1 August 1981, quoted
above , had' ever been promulgated . However , earlier Rieseberg admitted
that the rule dated I August 1981 was part of the Respondent's adminis-
trative policy as of that date . I note that the no-solicitation policy dated
I find from the testimony of Assistant Director of
Nursing Patricia Demond , that in September 1981 she
was present at nursing department meetings and shift
meetings where the Respondent 's new manual was the
subject of discussion and where head nurses received in-
structions to remind their subordinates about the new
personnel rules . However, her testimony does not reflect
that specific instructions were given regarding either the
1 August 1981 no-solicitation policy or the 17 August
1981 policy covering the same topic.
I also find that Clinical Laboratory Supervisor David
LaPlante participated in the promulgation of the Re-
spondent's new policies in the autumn of 1981. I find
from LaPlante 's testimony that after he compiled a por-
tion of the manual pertaining to his department 's oper-
ation, he turned the material over to Rieseberg for ap-
proval . After Rieseberg had reviewed and approved La-
Plante's departmental policy, he returned the manual to
LaPlante with personnel and administrative policy sec-
tions and instructions to make his subordinates aware of
the new policies and to make the manual available to
them within the department. During the first or second
week of September 1981 LaPlante held a staff meeting in
which he used the following procedure:
I went through each section, and when I got to
the personnel section I did thumb through . I didn't
read it to them . I went through the Table of Con-
tents and reiterated what policies were in there,
what things were addressed in there.
I did rely on them to follow that up and spend
some time with the manual on an independent basis.
The completed manual to which LaPlante referred con-
tained about 125 pages.
LaPlante told them to go through the manual individ-
ually and, if they had any questions, to let him know and
he would obtain answers. I find from LaPlante's testimo-
ny that this instruction to his subordinates constituted the
extent of his effort to familiarize them with the manual's
contents . LaPlante's testimony shows that he made no
specific reference to either the no-solicitation rule in the
1978 handbook or to the no -solicitation policies in the
manual . Nowhere in his testimony was there any show-
ing that he advised his subordinates that the new no-so-
licitation policies superseded the no-solicitation rule in
the 1978 handbook. In light of Lieutenant Chadbourne's
credited testimony that Hofstetter handed both policies
to him on 1 February 1982 in response to his request for
the Respondent's rules regarding solicitation , I find that
after 17 August 1981 the Respondent's management con-
sidered that the two policies in its 1981 policy manual
had superseded the 1978 solicitation rule contained in the
employees ' manual . Yet, the Respondent did not bother
to inform employees of the status of the 1978 rule and
did not recite the no-solicitation policies when it advised
employees of the new policy manual in the autumn of
1981.
17 August 1981 was promulgated as a personnel policy under Rieseberg's
signature.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges that on two occasions the Re-
spondent enforced a no-solicitation rule selectively
against employees engaged in solicitation for the Union.
The rule referred to in this portion of the complaint was
the policy dated 17 August 1981.
The first incident referred to by the General Counsel
occurred about 3 p.m. on 25 November 1981.30 Hofstet-
ter came upon off-duty employees, including Judith
Pixley, Lori Barrell, and Simone Murray, in the dis-
charge area, waiting to solicit passing employees during
a shift change. Hofstetter tried unsuccessfully to per-
suade the three employees to leave the Respondent's
premises. When they rebuffed his request, he departed
and returned 10 or 15 minutes later with Assistant Direc-
tor of Nursing Patricia Demond. At this point, Hofstetter
told the employees that under the Respondent's policy
they could not solicit. As Hofstetter spoke, Demond
wrote in a notebook. When employee Lori Barrell asked
Demond to explain what she was doing, Demond re-
sponded that she was "keeping track of people who are
spoken to about policies." After a further exchange, Hof-
stetter and Demond departed, but not before Hofstetter
reiterated that the employee's solicitation was "against
the Hospital policy."31 Demond admitted that on 25 No-
vember 1981 she heard Hofstetter talk to the employees
about the Respondent's no-solicitation policy dated 17
August 1981.32
The second incident referred to in the complaint oc-
curred in late January 1982 near the Respondent's first
floor conference room. Patricia Demond told employee
Simone Murray of a complaint made against Murray by
a maintenance department maid "[a] couple of days
before." Demond explained that the employee reported
that Murray had talked about the Union "on the job."
Demond prohibited Murray from talking about the
Union "on the job." After further discussion, Demond
repeated her injunction saying that during working hours
Murray could not talk about the Union.33
The Respondent's attempts to thwart employee solici-
tation on behalf of the Union contrasted with its tolera-
tion of employee solicitation on behalf of commercial
products, girl scout cookies, and raffles. I find from
Sharon Jackman's testimony that the Respondent tolerat-
ed solicitation at the nurses' stations in the form of bro-
chures and order blanks for a variety of products that
could be found available for perusal "just about every
week." I also fmd from Jackman's testimony that such
30 Employees Dianne Allen and Lon Harrell testified about a confron-
tation on the morning of 25 November 1981 in which Hofstetter found
them soliciting for the Union in the discharge area . When Hofstetter
asked them to leave the Respondent 's premises, they complied immedi-
ately . However, the General Counsel did not urge this incident as a vio-
lation of the Act.
Si For the most part , I base my findings regarding the incident on 25
November 1985 on the testimony of Simone Murray and Judith Pixley
Hofstetter did not contradict their testimony
32 Demond's and Hofstetter 's testimony showed that Hofstetter was
also attempting to enforce a no-access rule, which is discussed below
33 On cross-examination , Demond quickly denied telling Murray that
she could not talk about the Union on the job However, she then ginger-
ly added "We were talking about the fact that you couldn't be on duty
on the patient care or work areas talking about it " Thus, I find that De-
mond's testimony essentially corroborated Murray's more forthright testi-
mony
brochures were regularly lying open and easily seen by
employees and supervisors alike and that persons inter-
ested in the brochures would pause, sit down, and look
at them during working hours. I find from Simone Mur-
ray's testimony that occasionally employees solicited
orders for Tupperware by word of mouth, and that
product catalogues appeared in the Respondent's confer-
ence rooms.
Andrea Gendron's testimony showed that each Febru-
ary during the 4 years preceding the trial of these cases,
she solicited sales of girl scout cookies by leaving an
order card at the nurses' station during her shift. The Re-
spondent did not impose any restrictions on Gendron's
solicitation. Indeed, her immediate supervisor, Pamela
Emery, expressed regret in March 1982 that she had
missed the opportunity to purchase girl scout cookies
from Gendron.
Solicitation for sales of Tupperware, girl scout cook-
ies, and Avon products persisted throughout the period
of the Union's organizing campaign and continued until
the time of the hearing in these cases. I find from em-
ployee Judith Bryant's testimony that from September
1981 until approximately June 1982 she solicited on
behalf of Avon products at the hospital during working
time as well as breaktime , and that Supervisor Emery
saw her with her Avon catalogue without making any
comment. Bryant's procedure was to bring the catalogue
to a perspective customer at the hospital and if she re-
ceived an order, bring the product with her the next
time she reported for work at the hospital.
I fmd from employee Patricia Grant's testimony that
in January or February 1982 operating room employees
conducted a raffle to raise money to send one of their
number to a convention . The employees conducted the
solicitation during working time in the emergency room
nurses' station. On one occasion in 1982 an employee
came into the emergency room nurses' station and solic-
ited all those in the nurses' station in the presence of
Head Nurse Jackie Devereux, a supervisor,34 without in-
terference. The name of the winner of the 1982 raffle
was announced on the Respondent's public address
system.
Patricia Demond admitted that she had observed cata-
logues for Avon, Tupperware, and other products at
nurses' stations and assumed that they were for the pro-
motion of sales of the products they advertised. She as-
sumed that employees would come to the nurses' sta-
tions, peruse the catalogues, and place their orders. Al-
though Demond discarded some of these catalogues, she
did not disturb those catalogues that were situated near
employees' personal belongings. Demond never issued
any directive or order seeking to discontinue such solici-
tation.
b. Analysis and conclusions
In T.R. W. Bearings , 257 NLRB 442, 443 (1981), the
Board held that rules prohibiting employees from solicit-
ing during "working time" and rules prohibiting employ-
34 The parties stipulated , and I find, that the Respondent's head nurses
are all supervisors within the meaning of the Act
SPRINGFIELD HOSPITAL 665
ees from soliciting during "working hours" were pre-
sumptively invalid . In Our Way, Inc., 268 NLRB 394,
395 (1983), the Board overruled T.R.W. Bearings, and re-
turned to the rules established in Essex International, 211
NLRB 749 (1974), in which the Board declared that a
rule prohibiting employees from engaging in solicitation
during "working hours" is presumptively invalid and
that a rule prohibiting such solicitation during "working
time" is presumptively valid , Our Way, Inc., 268 NLRB
at 394.
However, the Board has established a specific policy
covering employees of health care facilities . Under that
doctrine, approved by the Supreme Court, such employ-
ees have a statutorily protected right to engage in union
"solicitation ... during nonworking time in nonworking
areas, where the facility has not justified the prohibitions
as necessary to avoid disruption of health-care operations
or disturbance of patients ." Beth Israel Hospital v. NLRB,
437 U.S. 483 , 507 (1978).
The record makes plain that the Respondent tolerated
nonunion solicitation at the nurses ' stations and else-
where at its facility. In contrast, as shown above, on 25
November 1981 Hofstetter advised prounion off-duty
employees who were engaged in solicitation, on the
Union's behalf in the discharge area that they were pro-
hibited from soliciting on Respondent's premises. Under
Board policy , such discrimination in the enforcement"of
a no-solicitation rule is violative of Section 8(a)(1) of the
Act. Accordingly, I find that the Respondent violated
Section 8(a)(1) of the Act by Hofstetter 's discriminatory
enforcement of its no-solicitation rules . St. Vincent's Hos-
pital, 265 NLRB 38, 40 (1982).
I also find that Demond's instruction to prounion em-
ployee Murray that she could not talk about the Union
while on the job constituted further discriminatory en-
forcement of the Respondent's no-solicitation rules. I
find therefore, that Demond 's admonitions to Murray
violated Section 8(a)(1) of the Act. Dutch Boy, Inc., 262
NLRB 4, 6 (1982).
7. The no-access rule and policy and their
enforcement
a. Facts
The Respondent 's 1978 employee handbook did not
contain a no-access rule. In the early autumn of 1981
Raymond Hill, who was the Respondent 's security offi-
cer, participated in management discussions regarding
off-duty employees' access to the hospital. I find from
Hill's testimony that at those meetings he received word
that off-duty employees were to have access to the hos-
pital's discharge area, dining room , lobby , and coffee-
shop.
The Respondent did not fully promulgate the new
rule. Patricia Grant, a 10-year employee was never ad-
vised of any rule or policy regarding the access of off-
duty employees to the hospital . Nurses aide Judith Ben-
jamin, employed by the Respondent for 22 years, was
not aware of any written hospital rule regarding off-duty
employee access to its premises . Indeed , prior to the
autumn of 1981 Benjamin , during off-duty hours , felt she
could go anywhere in the hospital , except the intensive
care unit . However, after the union campaign began, she
received advice from a fellow employee that during off-
duty hours she could only visit the coffeeshop, the cafe-
teria, and the discharge area . However, Benjamin contin-
ued her normal practice during off-duty hours.
As of 10 January 1983 , the date of her testimony, Lori
Barrell, an employee of the Respondent since 1976, was
not aware of any hospital rule or policy limiting off-duty
employees ' access to the hospital . Employee Sharon
Jackman, who actively solicited on the Union's behalf in
the discharge area during the autumn of 1981 , was not
aware of any rules regarding off-duty employees' access
to hospital premises until 1 February 1982 . Seven-year
employee Thomas Grant was unaware of any hospital
rule limiting access of off-duty employees to the hospital,
until sometime in February 1982 . However, before and
after February 1982 Grant freely visited the hospital
without management's interference, during off-duty peri-
ods to pick up paychecks and to visit patients, his wife,
who is a hospital employee , and other employees. I find
from the testimony of employees Roxanne Royce, Diana
McMillen, and Barbara Davis that they had the same ex-
perience as Thomas Grant and that prior to 1 February
1982 they were not aware of any rule regarding off-duty
employees ' access to the Respondent 's hospital.
I find from Rieseberg's testimony that when he
became administrator in November 1980 the Respondent
did not have any written no-access policy covering off-
duty employees . Thus, the policy manuals that the Re-
spondent promulgated in October 1981 marked the first
time that it had formalized a no-access policy for off-
duty employees , which is quoted below.
The complaint alleged and the answer admitted:
On or about October 1, 1981 Respondent promul-
gated, and until on or about December 1, 1981 Re-
spondent maintained and enforced the following no-
access rule:
Off-Duty Employees-Employees must leave the
Hospital building(s) promptly when their sched-
uled work period ends.
The Respondent, under Administrator Rieseberg's di-
rection and approval , included the quoted no-access rule
in its 1981 departmental manuals . The Respondent com-
pleted the assembly of its manuals in the autumn of 1981.
However , the rules and regulations, which included the
quoted no-access rule , became effective on 17 August
1981.
As previously found in connection with the no -solicita-
tion policies , the departmental manuals included not only
statements of policies applicable to the work of the par-
ticular department , but also administrative and personnel
policies of general application throughout the hospital. It
will be recalled that Administrator Rieseberg required
departmental heads to introduce the new departmental
policy manuals to their respective staffs at meetings and
make it available to the employees in their departments.
David LaPlante followed Rieseberg's instructions. He
explained the administrative policies and the departmen-
tal policy to his staff at a meeting . He told the employees
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the manual was available to them in a bookcase near
LaPlante's office, and invited them to "spend some time
with it and look through it." LaPlante admitted that he
did not read the personnel section of the manual to his
employees. Instead, he went through the table of con-
tents and told his listeners what policies were included.
I find from Personnel Assistant Jacques' testimony that
all of the Respondent's departmental supervisors con-
ducted meetings with their staffs similar to those that La-
Plante conducted. However, the extent to which a super-
visor familiarized his or her subordinates with the poli-
cies contained in the new manual was a matter of his or
her discretion.
In the fall of 1981 Jacques shared responsibility with
the departmental supervisors for the dissemination of the
personnel, administrative, and operational policies con-
tained in the new manuals . As found above, in connec-
tion with the no-solicitation policies Jacques conducted
in-service meetings with employees at which she sought
to familiarize employees with the new policies in the
1981 manuals . After the October 1981 in-service meet-
ings , Jacques did not ascertain the extent to which em-
ployees had in fact familiarized themselves with the new
policies. Further, the record does not show that attend-
ance at the in-service meetings was mandatory. Jacques
requested each departmental head to see that all his or
her respective employees attended. However, she did not
know whether each supervisor made attendance at his or
her in-service meetings mandatory. Jacques conceded
that she did not take attendance at her meetings and did
not know whether any of the departmental supervisors
did so. As found above, in discussing the no-solicitation
policies, Jacques did not read all of the new policies to
the employees at her in-service meetings.35
I find from Assistant Director of Nursing Demond's
testimony that the head nurses directed their subordi-
nates to familiarize themselves with the contents of the
new manuals and told them that they were responsible
for knowing its contents. The nursing manual, consisting
of at least 500 pages, included an administrative section,
a personnel policy section, and a nursing procedure sec-
tion. This configuration was consistent with those of the
manuals that the Respondent issued to its other depart-
ments.
About 7:30 or 8 a.m. on 25 November off-duty em-
ployees Dianne Allen and Lori Barrell were in the Re-
spondent's discharge area soliciting employee participa-
tion in union activities. Director of Support Services
Hofstetter, accompanied by guard Waidler, approached
and asked Allen and Barrell what they were doing. The
two replied that they were advising their fellow employ-
ees regarding union activities scheduled to take place
that day. At this, Hofstetter asked Allen and Barrell to
leave. After further conversation, in which Hofstetter in-
11 I find from the testimony of employees Laura Vitale-DeRosa,
Simone Murray, June Bonfigilo, Roxanne Royce, and Patricia Grant, re-
spectively, that Jacques conducted one or more in-service meetings at
which each of the named witnesses were present , and that Jacques did
not mention the new personnel rules contained in the Respondent's new
manuals, which included the no-access rule quoted above
sisted that they comply with his order, the two employ-
ees left. 36
On the afternoon of the same day, a group of six to
eight off-duty employees, including Lori Barrell, Judith
Pixley, Carolyn Pixley, and Simone Murray, were en-
gaged in distribution and solicitation on the Union's
behalf in the discharge area during a shift change. Hof-
stetter approached the employees and directed them to
leave the premises. When they refused, he departed and
returned 10 or 15 minutes later accompanied by Assistant
Director of Nursing Patricia Demond. Hofstetter re-
newed his direction that they leave giving as the reason
that they could only conduct their off-duty solicitation in
the lobby, coffeeshop, and cafeteria.37
He advised them that they were violating the hospi-
tal's solicitation policies. During the second encounter
with the off-duty employees in the discharge area,
Demond, at Hofstetter's instructions, listed the names of
the off-duty employees present and noted that Hofstetter
had instructed them regarding the Respondent's no-
access policy for off-duty employees.
Hofstetter's conduct on the morning of 25 November
was in sharp contrast with the Respondent's treatment of
off-duty employees in the discharge area on other occa-
sions . I find from Lori Barrell's unchallenged testimony
that on the morning of 25 November Hofstetter told em-
ployees Murray, Barrell, and Allen that they could be in
the discharge area for the purpose of picking up pay-
checks. I also find from the testimony of Lori Barrell,
Patricia Demond, and Raymond Hill that as a matter of
policy, and at all times material, the Respondent permit-
ted off-duty employees to remain in its discharge area for
transportation after work.
Hofstetter admitted that after the incident on 25 No-
vember 1981 the Respondent realized that the discharge
area "was a grey area" and "had been used for things
like people waiting for cars and stuff like that, waiting
for rides, and that area would also be considered a public
area, an area where solicitation could take place with a
union." Hofstetter also admitted that before, during, and
after the Union's campaign, the Respondent permitted
off-duty employees to return to the hospital for a variety
36 I base my findings regarding the incident involving Hofstetter,
Allen, and Barrell on the uncontradicted testimony of the two employees
97 Hofstetter testified that in his initial encounter with the off-duty em-
ployees on the afternoon of 25 November, he told them "Well, based on
the hospital policy, you can only be in the cafeteria, coffee shop, and
lobby " Patricia Demond testified in agreement with Hofstetter Murray
testified that Hofstetter told the employees that they "could not solicit in
the hospital " Employee Barrell testified that when Hofstetter returned
with Demond, he told the employees that he would not ask them to
leave the Hospital's premises, because "[they] weren't in a patient care
area."
As set forth above, Hofstetter did not generally impress me as being a
frank witness Murray, who was generally a reliable witness, denied that
Hofstetter mentioned anything about four areas where the employees
could engage in solicitation She gave her answer in a hasty manner
Therefore, I find that she may not have provided a careful and accurate
recollection of Hofstetter's remarks Although employee Darrell generally
impressed me as being a candid witness, her account in this instance came
across with some uncertainty as to Hofstetter's words Demond testified
with more certainty about this incident Therefore, I credit Hofstetter to
the extent that Demond corroborated him on this issue of fact
SPRINGFIELD HOSPITAL 667
of reasons unrelated to union activity, contrary to the
rule quoted above.
The consolidated, amended complaint alleges, and the
amended answer admits, that the Respondent modified
the no-access policy as follows:
Since on or about December 1, 1981 Respondent
has promulgated maintained, and enforced a no-
access policy that prohibits off-duty employees from
being present in all areas of the Hospital with the
exception of the cafeteria, the coffee shop, the dis-
charge area and the lobby.
The Respondent's security guards, under the direction of
the Respondent's management , began to enforce the new,
policy about 1 December 1981 and continued to do so
thereafter.
Guard Harry Waidler enforced the new policy by
asking off-duty employees in the hospital what their pur-
pose was for being there. If Waidler concluded that the
employees' purpose "was legitimate" he permitted them
to go about their business. If the employee stated that the
purpose of the visit was union solicitation, Waidler
would tell them of the policy. In doing so, he advised
them of the specific areas in which the Respondent per-
mitted union solicitation by off-duty employees.38
About 1 December 1981 Peter Hofstetter advised some
of the Respondent's employees of the new no-access
policy. I find from Hofstetter's testimony, however, that
the Respondent did not reduce the new policy to writ-
ing. Further, Hofstetter conceded that he did not advise
every employee personally about the new policy. Nor is
there any showing that Respondent promulgated the new
policy to its employees or that Susan Jacques made it a
topic at her in-service meetings . As late as 3 February
1982 Director of Nursing Ruth Lawrence was not aware
that the hospital's lobby was one of the four areas in
which off-duty employees could engage in union solicita-
tion.
On 1 February 1982 Lieutenant Francis Chadbourne
of the Springfield, Vermont police department arrived at
the hospital in response to a call from Eric Rieseberg
and asked Hofstetter for copies of the Respondent's so-
licitation and access rules. As found above, Hofstetter
handed to Chadbourne rules and regulations included in
the personnel sections of the new manuals . These rules
and regulations, which became effective 17 August 1981,
included the no-access rule quoted above.
On the same day that Lieutenant Chadbourne received
a copy of the no-access rule requiring off-duty employ-
ees to leave the hospital at the end of their scheduled
work periods, Personnel Assistant Susan Jacques was ad-
vising off-duty employees in the discharge area that the
National Labor Relations Board would protect them if
they refrained from going into patient care areas and re-
stricted their union activity to the lobby, coffeeshop, caf-
eteria, or discharge area. The source of Jacques' informa-
tion regarding the limitations on off-duty employees was
Administrator Rieseberg. According to Jacques, at the
time she spoke to the off-duty employees, the Respond-
ent did not have a clear policy limiting off-duty employ-
ees to the four areas she mentioned.
There was no showing that the Respondent ever an-
nounced to its employees that the no-access policy that
Guard Waidler began enforcing on 1 December 1981
had supplanted the no-access policy contained in the de-
partmental manuals . Nor was there any showing that the
Respondent issued any written notification to its supervi-
sors that the policy that Waidler was enforcing had sup-
planted the rule in the departmental manuals.
As was the case with the manual rule prohibiting off-
duty employees from remaining on the Respondent's
premises, the policy that Waidler and members of the
Respondent's management implemented on and after 1
December 1981 was not strictly enforced. I find from
Peter Hofstetter's testimony that despite the policy as al-
leged, after 1 December 1981 the Respondent's practice
throughout the union campaign was to allow off-duty
employees to visit its premises freely for a variety of pur-
poses other than union activity. These included checking
work schedules, obtaining prescriptions from the phar-
macy, picking up paychecks, attending showers or par-
ties, eating lunch, or simply visiting with colleagues or
spouses who were on duty as employees in patient care
areas or at other work stations. Supervisors observed off-
duty employees during such visits without taking excep-
tion to any of them.
A further incident of no-access policy enforcement oc-
curred in December 1981 or January 1982. Off-duty em-
ployees Roxanne Royce and Margaret Richmond had
stationed themselves in the discharge area, where they
were engaged in a conversation with employee Regina
Buxton. While the three employees conversed, Hofstetter
and a security guard approached. Hofstetter, who recog-
nized Royce and Richmond and knew that they were
active union supporters, directed them to leave the prem-
ises . There was no showing that Royce or Richmond
were interfering with patient care or other work as they
stood conversing with employee Buxton.
Prior to this conversation, Richmond and Royce had
stationed themselves in the discharge area to explain to
employees who were punching in or out at the timeclock
the Respondent's retention of a labor management con-
sultant and the presence of security guards on the Re-
spondent's premises . When Hofstetter requested that
Richmond and Royce leave, the two rejected his request
and remained in the discharge area . Richmond explained
to Hofstetter that they did not intend to leave and that
they intended to exercise their right to be there. No dis-
ciplinary action resulted from this encounter.39
On the afternoon of 8 January 1982 during a shift
change in the discharge area, off-duty employee Sharon
Jackman, a union activist, was engaged in distribution of
union literature and solicitation of employee support for
the Union. As she went about her union activity, Jack-
man observed guard Waidler standing immediately
beyond the double doors separating the discharge area
ss I base my findings regarding the encounter between Richmond,
Royce, and Hofstetter on Roxanne Royce's uncontradicted testimony. I
base my finding that Hofstetter was aware of Royce's and Richmond's
38 1 base my findings regarding Waidler's practices on his testimony. prounion sentiments on his testimony.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from a hallway. Waidler was observing Jackman's activi-
ty. About 3:30 p.m., Jackman terminated her union activ-
ity and went to the end of the hall, intending to take an
elevator to visit her aunt who was a patient in the hospi-
tal. As Jackman waited for the elevator, Waidler came
up and asked her what her business was in the hospital
and where she was going. Jackman responded that she
intended to visit her aunt, who was a patient, and that
she was under no obligation to answer his questions.40
Although Waidler had some doubt about the reliability
of Jackman's response, he permitted her to go on her
way. That same day, he reported the incident to either
Hofstetter or Hospital Administrator Rieseberg.
b. Analysis and conclusions
In GTE Lenkurt, Inc., 204 NLRB 921, 922 (1973), the
Board held that "where an employer' s no-access rule is
nondiscriminatory, i.e., it denies off-duty employees
access to the premises for any purpose and is not dispar-
ately applied against union activities, it is presumptively
valid absent a showing that no adequate alternative
means of communication are available." Thereafter, in
Tri-County Medical Center, 222 NLRB 1089 (1976), the
Board declared that the holding in GTE Lenkurt , supra,
"must be narrowly construed to prevent undue interfer-
ence with the rights of employees under Section 7 of the
Act freely to communicate their interest in union activity
to those who work on different shifts." The Board then
went on, in Tri-County, to conclude that a no-access rule
"is valid only if it ( 1) limits access solely with respect to
the interior of the plant and other working areas; (2) is
clearly disseminated to all employees; and (3) applies to
off-duty employees seeking access to the plant for any
purpose and not just to those employees engaging in
union activity."
Here, there was no showing that the Respondent
clearly disseminated to its employees either the no-access
rule, the subsequent no-access policy, or the intention to
replace the rule with the policy. Indeed, the record
shows that the Respondent' s management made little
effort to educate its employees about the rule, the policy,
or the displacement of the rule by the policy. It did not
distribute printed copies of its no-access rule or its policy
to its employees. Nor did it promulgate and distribute
any notice regarding the substitution of the policy for
the rule. Nor did the Respondent make any effort to
assure that the rule or the policy were read to the em-
ployees at in-service or other management meetings with
employees. In this regard, the Respondent failed to con-
form to the second requirement of Tri-County.
I also find that the Respondent failed to satisfy the
third Tri-County requirement. The record shows that
before the Union's campaign , during the campaign, and
until the time of the hearing before me, the Respondent
permitted off-duty employees to return to its building for
a variety of purposes other than union activity. There
was no showing that the Respondent enforced either the
rule or the policy against off-duty employees other than
those engaged in union activity.
ao I base my findings of fact on the testimony of both Jackman and
Waidler
As shown above, the Respondent invoked the rule and
later the policy on four occasions. On the morning and
afternoon of 25 November 1981 the Respondent enforced
its no-access rule against off-duty employees who were
then engaged in union activity when Peter Hofstetter di-
rected them to leave the hospital. On 8 January 1982 the
Respondent enforced its no-access policy against off-duty
employee Jackman, a known union activist, shortly after
guard Harry Waidler had observed her engaging in
union activity in the discharge area . The fourth incident
of discriminatory enforcement of the Respondent's no-
access policy occurred sometime in December 1981 or in
January 1982 when Hofstetter directed two off-duty em-
ployees who were known to him as union supporters to
leave the premises at a time when they were engaged in
union activity in the discharge area.
In sum , I find that the Respondent violated Section
8(a)(1) of the Act by maintaining an invalid no-access
rule and an invalid no-access policy. I also find that by
enforcing its rule twice on 25 November and its policy
on two occasions thereafter, the Respondent on each oc-
casion violated Section 8(a)(1) of the Act.
I find from Harry Waidler's testimony that he advised
off-duty employees on numerous occasions of the Re-
spondent's access policy after 1 December 1981. Howev-
er, he did so only when he observed an off-duty employ-
ee "who wasn't supposed to be there." In those in-
stances, he would check with management to determine
if the off-duty employee could continue on his or her
business. He would then explain the Hospital's no-access
policy. There is no showing that Waidler's practice suc-
ceeded in disseminating the Respondent's no-access
policy "clearly" and "to all employees." Tri-County Med-
ical Center, supra.
8. The arrest of four employees on 1 February 1982
a. Facts
In an effort to stimulate employee support for the elec-
tion scheduled for 4 February 1982,41 Richard Sanders,
the Union's organizer, and the prounion employees
planned to take their campaign into the hospital over the
weekend of 30 and 31 January. I find from Sander's testi-
mony that the plan was to mobilize as many off-duty
prounion employees as possible to visit the Respondent
over the weekend. Sanders and his employee allies had
heard that the hospital planned to have one-on-one meet-
ings between individual supervisors and on-duty employ-
ees during the weekend to present the Respondent's ar-
guments in opposition to the Union. The off-duty em-
ployees, while at the hospital, were to be alert for one-
on-one meetings and try to participate in them to rebut
management arguments. The off-duty employees would
also engage in solicitation of employees during nonwork-
time and in nonwork areas.
I find from the testimony of prounion supporters
Judith Pixley, Roxanne Royce, Barbara Davis, and Mar-
garet Richmond that prior to 30 January off-duty em-
41 Unless otherwise stated all dates in this section of the decision refer
to 1982
SPRINGFIELD HOSPITAL 669
ployees had visited the lobby, the cafeteria, the coffee-
shop , the discharge area , the locker room, and the con-
ference room where they had freely engaged in discus-
sions related to the Union 's campaign with employees
who were not on working time . I find from their testi-
mony and that of union activists Judith Bryant and
Simone Murray that the union supporters intended to,
and did, engage in similar activity during the weekend of
30 and 31 January.
On Friday , 29 January, Administrator Rieseberg con-
ducted a management meeting at the hospital . Noting
that the Board would conduct a representation election
on Thursday , 4 February 1982 , Rieseberg stated that the
coming weekend would see a remarkable increase in
union activity at the hospital and possibly a march on
the hospital . I find from Peter Hofstetter 's testimony that
Rieseberg stressed the importance of ensuring that hospi-
tal operations continued so that patients would continue
to receive the best possible care during the ensuing
weekend .42 During the meeting , management divided
itself into four teams , each assigned to a 4 -hour shift at
the hospital on 30 and 31 January . The four team leaders
were Peter Hofstetter , David LaPlante, Charles Vogt,
and Ruth Lawrence.43
The record shows that the Respondent's management
observed only a portion of the off-duty employees ' activ-
ity at the hospital during 30 and 31 January. According-
ly, in showing the background against which the alleged
arrests occurred on 1 February , I have limited my find-
ings to the following incidents that hospital supervisors
observed during the preceding weekend.
Charles Vogt, the Respondent's director of finance,
was at the hospital from 5 a.m. until 11 :30 a.m. or noon
on Saturday , 30 January , and from 5 a.m. until 10:30 or
11 a.m . on Sunday, 31 January. He patrolled the halls to
prevent disruption of the hospital's operations. During
both periods Vogt received no reports of any unusual in-
cidents, nor did his testimony show that he observed any
disruptive activity on either day.
I fmd from David LaPlante 's testimony that Rieseberg
instructed the supervisors to report disruptive incidents
to a key senior management person on a particular shift.
LaPlante occupied such a key position on both Saturday
and Sunday, I fmd from his testimony that during his
shifts there were two incidents that required his atten-
tion.
I fmd from Hofstetter 's testimony that each of the four
teams consisted of anywhere from five to eight supervi-
sors and that during the weekend of 30-31 January some
20 to 32 of the Respondent 's supervisors were present at
42 Rieseberg testified that he told the assemblage that it was important
for management to be present at the hospital over the weekend to pro-
vide support for the antiunion employees. However, Assistant Director of
Nursing Patricia Demond and David LaPlante , who was then the clinical
laboratory supervisor , corroborated Hofstetter's version of Rieseberg's
stated reason for reinforcing the normal complement of supervisors on
the weekend of 30 and 31 January . LaPlante and Demond appeared to be
more conscientious about giving their best recollection . I also noted my
findings below that on 1 February Rieseberg told the Springfield police
chief of his concern regarding the hospital operation . These factors per-
suaded me to credit Hofstetter's and LaPlante's versions of Rieseberg's
remark to the assembled supervisors on 29 January.
:9 I base my findings regarding the team system on the testimony of
Peter Hofstetter, Patricia Demond , Charles Vogt, and David LaPlante.
various times at the hospital . Each supervisor patrolled
the hospital 's corridor during his or her shift except for
some time spent in the hospital 's cafeteria . Hofstetter pa-
trolled the corridors and, as a key management person,
received reports from other members of his team. He re-
ceived reports that off-duty employees in groups of two's
and three's were present in the hospital . However, he re-
ceived no report that caused him to take any disciplinary
action against any off-duty employee.
I find from Director of Nursing Ruth Lawrence 's testi-
mony that she understood from instructions she received
at the supervisors ' meeting on 29 January that the in-
creased presence of supervisors at the hospital during the
coming weekend was to "assure a professional atmos-
phere without confrontational events ." Lawrence, who
was a team leader , was patrolling at the hospital on both
Saturday and Sunday . Her duty hours on Saturday were
from about 11 a.m . to 4 p.m. On Sunday she was at the
hospital from sometime before 4 p.m. until 9 p.m.
During her tours of duty, Lawrence observed off-duty
employees in street clothing constantly walking through
the halls . However, she was not able to identify any of
these individuals . Lawrence observed off-duty employees
walking through the halls in groups of two and three
near patient areas and up and down the stairways. She
did not know what these employees were doing at the
hospital aside from walking the corridors and stairways.
Although she received some complaints about the off-
duty employees from on-duty employees, Lawrence took
no corrective action . On Monday morning , 1 February,
at a meeting of supervisors with Rieseberg , Lawrence re-
ported her observations.44
I find from the testimony of Nurse Anna Beth Herold,
who was a supervisor , that she attended the supervisors'
meeting on Friday, 29 January, and was present at the
hospital on Saturday and Sunday as a member of Peter
Hofstetter's team . On Saturday, she patrolled the hospital
from approximately 11 a.m . until approximately 5 p.m.
On Sunday , she was present in the hospital for 4 hours in
the afternoon.
I fmd from Herold 's testimony that on Saturday or
Sunday she observed off-duty employees Margaret Rich-
mond, Lori Barrell, Sharon Jackman , Judith Bryant, and
Roxanne Royce . She saw Richmond, Bryant, and Royce
in the pediatric area . She saw Barrell and Jackman either
in the dinning room or walking through corridors. In
general, Herold observed groups of two or more off-
duty employees engaged in "seemingly aimless strolling
about in the hallways."
Assistant Director of Nursing Patricia Demond was at
the hospital on both Saturday, 30 January , and Sunday,
31 January . On Saturday she was on duty from approxi-
mately 5 p .m. until approximately 8:30 or 9 p.m. Her
team leader was LaPlante . On the following day, she
was on duty from 11 or 11:15 a.m . until 3 or 3:30 p.m. on
Hofstetter's team. On the morning of 1 February, she re-
ported her observations to either Hofstetter or LaPlante.
44 I base my findings as to Ruth Lawrence 's experience over the week-
end of 30 and 31 January and her report at the meeting on her testimony.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Demond understood that the purpose for the teams
was "to make sure that the hospital kept running as it
should." In making her rounds through the hospital,
Demond kept that objective in mind.
On Saturday she saw 15 to 20 off-duty employees cir-
culating through the hospital building in groups of 2 and
3. She perceived that there were always some off-duty
employees on each floor and in every corridor she vis-
ited.
On Sunday Demond observed the same type of activi-
ty. Both the first and the second floor, where Demond
observed the off-duty employees, contained patient care
areas . However, her testimony reflected that all the ac-
tivity she observed occurred in the corridor. Demond
admitted that she did not observe any off-duty employ-
ees engaged in solicitation for the Union on either day.
Demond testified on direct examination that the pres-
ence of off-duty employees impeded patient care. She
also asserted that the administration had lost control of
the hospital. In explaining her perception, she testified
that the off-duty employees in the halls impeded the
movement of patients and nurses.
However, on cross-examination , when asked if she had
personally witnessed any occurrence in which patients or
nurses suffered impediment because of these off-duty em-
ployees, Demond became evasive and asserted that em-
ployees had complained to her that it was difficult to
work with extra people in the halls. When pressed fur-
ther, Demond admitted that she had gone through the
corridors but could not provide any specific instances in
which she had observed such interference by off-duty
employees in patients' rooms or in treatment areas.
Demond also admitted that she had not observed any
off-duty employees in patients rooms or in treatment
areas.
On redirect examination , Demond identified one of the
complainants as licensed practical nurse Joanne Green-
wood. On cross-examination, Demond was uncertain as
to when Greenwood voiced her complaint that the
people in the hall made it "very difficult getting back
and forth in the hall to do her work." During the week-
end, Demond testified that she received another similar
complaint from a second unnamed on-duty employee
whom she could not identify.
On 1 February between 1:30 and 2 p.m., the Respond-
ent's in-service coordinator, Mary A. Robinson heard
..some noise" in the second floor corridor outside her
office.45 She saw off-duty employee Barbara Davis talk-
ing to a patient in a geriatric chair and saw five or six
off-duty employees. She heard Judith Bryant's voice and
saw her going through a stairway door. Robinson ob-
served Davis and the others for about 30 seconds and
then returned to work. She did not report this incident
to Demond. In her testimony, Demond did not include
this incident. Finally, there was no showing that Eric
Rieseberg was aware of this incident on 1 February
1982.
David LaPlante was one of the four team leaders on
duty on Saturday, 30 January, from about 7:30 a.m. until
about 2 p.m. and again on Sunday, 31 January, from ap-
as I base my findings regarding this incident on Robinson 's testimony
proximately 4:30 until 7:30 p.m. LaPlante was involved
in two incidents on 30 January.
The first occurred when he received a complaint from
Head Nurse Anne Miller of the special care unit46 that a
group of employees were blocking the entrance to ICU.
Miller requested assistance.
LaPlante proceeded to the intensive care unit. As he
approached, he noticed a group of four employees
dressed in street clothes, including off-duty employees
Roxanne Royce, Margaret Richmond, and two other
persons, who were presumably off-duty employees. On
seeing LaPlante, the four employees disappeared through
a door leading to a stairwell.
LaPlante entered the ICU. Head Nurse Miller told La-
Plante that she was concerned about moving equipment
in or out of the ICU. However, there was no showing
that Royce, Richmond, or any other employees had in
fact caused any blockage at the ICU entrance.
Anne Miller conceded that the four employees did not
interfere with any of the SCU's operations. Miller, who
during the weekend of 30 and 31 January visited various
parts of the hospital, also conceded that she observed no
disruption of patient care in any of the areas she visited
during those 2 days. Miller's only report to LaPlante
during that weekend concerned the four off-duty em-
ployees at the entrance to the ICU.
The second incident involving LaPlante occurred be-
tween 11 a.m. and noon on the same day. Raymond Hill,
the Respondent's plant engineer in charge of mainte-
nance, who also served as its security officer, safety offi-
cer, and fire marshal, received a complaint about noisy
people from Head Nurse Mary Schoener in pediatrics.
Head Nurse Schoener found the off-duty employees an-
noying because their very presence distracted her from
paperwork she was doing at the nurses' station. The off-
duty employees remained in the corridor near Schoener
for about 15 minutes. There was no showing in
Schoener's testimony that the off-duty employees other-
wise interfered with pediatrics operations. This was the
only incident that Schoener reported to her supervisor
during the weekend of 30 and 31 January.
At Schoener's request, Hill went to the corridor near
pediatrics where he saw a group of off-duty employees
milling around.47 Hill telephoned the complaint to his
team leader, LaPlante, who investigated the matter.
When LaPlante arrived in the vicinity of the pediatrics
department, he saw off-duty employees Richmond and
Royce standing in the middle of the hall. As he ap-
proached, they departed down a stairwell. There was no
showing that the two employees had interfered with any
pediatrics activity. Further, Head Nurse Mary
Schoener's testimony corroborated Royce and Murray's
testimony regarding this incident.
46 The Respondent 's special care unit (SCU) consists of an intensive
care unit (ICU) and a coronary care unit (CCU).
47 Hill testified that he saw about 10 noisy employees . However, his
testimony about the details of this incident revealed weak recall , and his
demeanor indicated some uncertainty . In contrast, employees Royce and
Murray seemed to be more certain of the details of this incident, includ-
ing their assertions that there were only six employees in the group and
that they were quiet
SPRINGFIELD HOSPITAL 671
I find from the testimony of Virginia Todd and
Simone Murray that on the evening of 31 January off-
duty employees Carolyn Pixley, Melvin Monfette,
Simone Murray, and Dianne Allen visited LPN Virginia
Todd as she worked in ICU. Their conversation at the
nurses' station near the entrance to ICU took 2 or 3 min-
utes. Murray and Allen spent only a few minutes talking
to Todd. None of the conversations related to the Union
or its organizing campaign.48
Pamela Potter, the nurse-in-charge of SCU on the
evening of Sunday, 31 January, conceded that Todd
completed her work satisfactorily that evening without
interruption. Potter reported the visits of the four off-
duty employees to her superior, Pamela Emery. Howev-
er, she did not recommend any disciplinary action
against Todd. There was no showing that Emery for-
warded this report to her team leader, LaPlante, or to
any other senior member of Respondent' s management.
Registered nurse Patty Jo Olney worked as a relief su-
pervisor at the hospital on 30 and 31 January. On both
days, she observed off-duty employees walking up and
down first floor corridors and in. the second floor pediat-
rics corridor near the nurses' station. She identified the
off-duty employees on the first floor as Virginia Todd,
Sylvia Flint, Judith Bryant, Roxanne Royce, and Judith
Pixley. The two employees she observed in pediatrics
were Dianne Allen and Cheryl Jackman, who were look-
ing out of a window. Olney also observed three or four
additional individuals near the second floor elevator door
and two more off-duty employees in the corridor near
the maternity unit.
On 31 January two off-duty employees conversed with
an Army Reserve licensed practical nurse (LPN) at the
maternity section's nurses' station near a door that sepa-
rated maternity from the rest of the floor. The LPN was
performing weekend training duty at the hospital. Olney
did not identify the participants in this conversation.
Olney did not report the incident to her supervisor and
there was no showing that she reported any of the other
incidents in which she observed off-duty employees
during the weekend of 30 and 31 January.49
Nurse Lorraine Cassel, who was on duty as a supervi-
sor on Sunday, 31 January, from 4 or 4:30 p.m. until
about 8 p.m., depicted an instance of interference with
the hospital's operations on that date. According to
Cassel, at 6 or 6:30 p.m. that evening, as she approached
the first floor nurses' station, she heard call bells and no-
ticed call lights signifying that three patients on the first
floor were calling for assistance. According to Cassel, at
that point she observed that on-duty employees Mark
Christ and Judith Bryant were conversing with off-duty
employees Simone Murray, Roxanne Royce, Cheryl
Jackman, and Sharon Jackman. According to Cassel, she
49 Pamela Potter's testimony regarding off-duty employee visits with
Virginia Todd differed substantially from the credited testimony of Vir-
ginia Todd and Simone Murray. However, unlike Todd and Murray,
who impressed me as straightforward witnesses , Potter resorted to con-
jecture when she attempted to place off-duty employees Richmond,
Royce, Murray, and Bryant in the ICU on the afternoon of 31 January. I
therefore rejected Potter's version to the extent it was inconsistent with
Todd's and Murray's testimony.
49 I base my finding regarding Olney 's observations of off-duty em-
ployees during the weekend of 30 and 31 January on her testimony.
proceeded to answer the requests for assistance without
asking whether Bryant or Christ had requested other on-
duty employees to answer the calls. Immediately after
she had answered the three calls, Cassel returned to the
nurses' station . By that time, Christ and Bryant had de-
parted. Cassel testified that she went to the nurses' office
where she reported the incident to Supervisor Pamela
Emery. Emery's testimony contained no reference to a
report of this incident by Cassel.
General Counsel's witnesses Cheryl Jackman, Sharon
Jackman, Roxanne Royce, Simone Murray, and Judith
Bryant denied that the incident that Cassel reported had
occurred. Judith Bryant testified that during the week-
end of 30 and 31 January the only contact she had with
on-duty employees on the first floor consisted of walking
past the nurses' station and saying "Hi." She also denied
that she failed to answer any buzzer while on duty that
weekend.
Three factors cast serious doubt on the reliability of
Cassel's testimony. The first was her failure to explain
satisfactorily why she did not direct Bryant and Christ to
break off their conversation and answer the calls. Fur-
ther, she provided little basis for her asserted fear that a
confrontation would result if she issued directions to
Bryant and Christ. Admittedly, Cassel had not experi-
enced any confrontation with union supporters prior to
the weekend of 30 and 31 January. Cassel testified that
there was tension in the hospital's atmosphere, but pro-
vided no substance to flesh out this assertion. Her failure
to provide more than conjecture as grounds for her as-
serted fear suggested that her excuse was of recent vin-
tage, adopted to assist the Respondent's defense. A fur-
ther factor casting doubt on Cassel's testimony was the
absence of any corroboration in Pamela Emery's testimo-
ny. Finally, on cross-examination Cassel appeared to be
evasive when the Union's counsel asked her about her
earlier testimony that she would have had a confronta-
tion if she had exercised her supervisory authority on
Bryant and Christ.
The infirmities in Cassel's testimony, together with my
impression that Carol Jackman, Sharon Jackman, Rox-
anne Royce, Simone Murray, and Judith Bryant were
more straightforward witnesses, persuaded me that the
incident that Cassel depicted in her testimony did not
occur. However, even if I had credited Cassel's testimo-
ny, the record does not show that Pamela Emery report-
ed the incident to her team leader or to Rieseberg.
On Sunday evening, 31 January, off-duty employee
Simone Murray together with four or five other off-duty
employees, including Roxanne Royce and Judith Pixley,
engaged in a conversation with X-ray technician Ora
Turner that lasted approximately 10 minutes in the X-ray
department's waiting area. A few moments after the con-
versation had ensued, X-ray Department Supervisor Tim
Henry arrived, sat down, and conversed with Turner
and her off-duty visitors. There is no showing that this
conversation interfered with the X-ray department's op-
eration.60
00 My findings regarding this incident are based on the testimony of
Murray, Royce, and Pixley.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hospital Administrator Eric Rieseberg testified that
during the weekend of 30 and 31 January he was at the
hospital "on numerous occasions," and "noticed a signifi-
cant change in the demeanor, a significant change in the
activities of a number of the prounion people that we
had been working with at the hospital; with them walk-
ing through what we felt to be patient care areas in
two's, three's and four's." However, Rieseberg's testimo-
ny is free of any description of specific incidents in
which prounion off-duty employees came in contact with
patients or interfered with patient care or otherwise af-
fected the hospital's operations during the weekend of 30
and 31 January.
I find from Ruth Lawrence's testimony that on
Monday morning, 1 February, the four team leaders,
Hofstetter, Lawrence, LaPlante, and Vogt, reported in
substance that during the previous weekend "there were
no unusual events of any great consequences." I also find
from Rieseberg's testimony that on Monday morning it
appeared to him that the activities of the off-duty em-
ployees that he had witnessed over the weekend had
ceased.
I find from their testimony that Union Organizer Rich-
ard Sanders and the leading union activists among the
Respondent's employees had planned to continue on 1
February with the activity they had carried on during
the weekend. Off-duty prounion employees were to con-
tinue to solicit support from on-duty employees in the
cafeteria, the coffeeshop, locker room, and the confer-
ence room area during the on-duty employees' rest peri-
ods. The off-duty prounion employees were also to con-
tinue making their presence known by walking through
the corridors and being available for one-on-one meet-
ings between individual supervisors and individual on-
duty employees. Among those who were to participate
in this union activity on 1 February were Simone
Murray, Judith Bryant, Roxanne Royce, RN Barbara
Davis, and X-ray technician Beverly Camire.
The incident that prompted Eric Rieseberg to request
the presence of local police at the hospital occurred in
the hospital's basement early in the afternoon of 1 Febru-
ary. It is undisputed that approximately 15 off-duty em-
ployees, including Murray, Bryant, and Royce , on learn-
ing that a meeting was in progress in the basement's
housekeeping area, congregated in its vicinity.
The Respondent's director of support services, Peter
Hofstetter, was conducting the meeting with housekeep-
ing employees and was discussing the forthcoming repre-
sentation election. I find from Housekeeping Supervisor
Steven Parker 's testimony that when the meeting began
the doors to the room were open. However, as the off-
duty employees began to assemble, the noise of their
conversation caused Hofstetter to ask Parker to close the
door. Thereafter, until Simone Murray knocked on the
door to seek entry, Parker heard only muffled voices
from outside the meeting room. I find from Hofstetter's
testimony that after Parker closed the door the noise
from the assembling off-duty employees did not interfere
with his conduct of the meeting'5 t
51 In light of Hofstetter's testimony I found it unnecessary to resolve
issues of credibility regarding the noise emanating from the off-duty em-
I find from Raymond Hill's testimony that he observed
Royce and Bryant as they passed his office on their way
to the housekeeping meeting's vicinity. Hill watched the
group outside the housekeeping area for about 20 sec-
onds before leaving to tell Rieseberg of their presence.52
Hill admitted that they were not noisy.
Simone Murray knocked on the meeting room door.
When Supervisor Parker opened the door, Murray and
Beverly Camire asked if they could join the meeting.
Hofstetter refused and directed Murray to close the
door.
At this juncture, Murray asked employees Glen Bobar
and Jeanette Bergeron , who were attending the meeting,
if they were okay and if they were being held against
their will. Both employees indicated that they were all
right and that they were not being held against their
will.53
After Hofstetter rejected Murray's request for entry to
the meeting, Murray, Royce, and the other off-duty em-
ployees remained in the vicinity of the housekeeping
area. Murray wanted to be available if the employees at
Hofstetter's meeting had any questions about the pending
representation election. Roxanne Royce also waited in
the housekeeping area for the meeting to end. However,
at Parker's request the employees moved away from the
immediate vicinity of the housekeeping area , while the
meeting was in progress, to a point in the corridor be-
tween the morgue and the housekeeping department.
Hofstetter continued with his meeting without further in-
cident.
Royce, Murray, and the other off-duty employees
stood against both walls of the corridor conversing or
merely standing quietly. After approximately 5 minutes,
Administrator Eric Rieseberg appeared in the corridor.
Rieseberg attempted unsuccessfully to clear the off-
duty employees out of the corridor. He asked the em-
ployees what they were doing and told them that they
were in an unauthorized area and that they had inter-
ployees assembled in the vicinity of the housekeeping area In any event,
I did not credit Raymond Hill 's or Eric Rieseberg's testimony to the
effect that the off-duty employees were noisy , hollering , and disruptive.
12 Hill testified that he went to Rieseberg 's office to report his obser-
vations of the employees in the housekeeping area. Rieseberg initially tes-
tified that Hill telephoned that information to him. As Rieseberg later
corroborated Hills' testimony, I have credited Hill in this regard.
as In general, I base my findings on Murray 's attempt to gain entry
into the housekeeping department meeting on her testimony and that of
Parker and Hofstetter. However , there were two issues of credibility
raised
Contrary to Parker, Hofstetter and Murray testified that Murray spoke
only to Glen Bobar. I have credited Parker , who testified that Murray
also spoke to Bergeron. I do so because Parker was situated right at the
entrance to the room at the time of the incident and thus was better situ-
ated than was Hofstetter to see and hear Murray with the door open
Further, as between Hofstetter, Murray , and Parker , the latter impressed
me as being more careful and certain about his testimony regarding this
incident
Further, there was a divergence between the two management wit-
nesses and Murray regarding her remarks when Parker opened the door
Here I have credited Parker and Hofstetter Murray's version of her re-
marks did not include a question about whether the employee she spoke
to was being held against his will . Yet I found it likely that she asked that
question in light of her testimony that she went to the housekeeping area
with the idea that "it might be a captive audience meeting ." With that
thought on her mind , I found it likely that Murray asked the question
attributed to her by Parker and Hofstetter
SPRINGFIELD HOSPITAL
rupted a housekeeping meeting and thus had directly in-
terrupted the Respondent's operation and its ability to
meet its patients' needs. He asked them to leave.54 When
his initial effort failed, Rieseberg summoned Raymond
Hill to the confrontation. Rieseberg conceded that prior
to his remarks, the assembled employees had been quiet.
Rieseberg explained to the employees that they were
outside the designated areas, which were the dining
room, the discharge area, the coffeeshop, and the front
lobby. Roxanne Royce responded that the employees
were there to organize a union and support their people.
Rieseberg responded that the employees did not have
any right to be in patient care areas interrupting hospital
operations. I find from Hill's and Rieseberg's testimony
that at that point in the exchange Royce accused Riese-
berg of lying. a s
This last exchange between Rieseberg and the off-duty
employees occurred near the morgue and the housekeep-
ing department, both of which were situated on the hos-
pital's basement floor. The remaining facilities on that
floor were Hill's office, the linen closet, the oxygen stor-
age room, the boiler room, the X-ray records storage
room, the cafeteria, the kitchen, a director's office, the
storage room, the men's locker room, the women's
locker room, a storeroom, the housekeeping storage
areas, and a workshop area. The entrance to the base-
ment floor nearest to housekeeping and the morgue was
the discharge area, one of the areas specifically excepted
from the Respondent's no-access policy.
Administrator Rieseberg began asking individual off-
duty employees to leave, declaring that they had no
right to be there. None of those he confronted complied
with his request.
Royce and Murray contradicted Rieseberg's testimony
that at this point Royce declared that the off-duty em-
ployees intended to conduct their union organizing "any-
where they pleased." Hofstetter also testified that he
heard similar assertions from unidentified members of the
group. However, Raymond Hill's testimony does not
show that Royce or any of the off-duty employees
voiced the intention to go anywhere they pleased.
I find it unlikely that on 1 February Royce or any of
her colleagues announced their intention to go anywhere
they wanted to in the hospital. On 30 and 31 January
Royce and the other off-duty employees had been care-
ful to comply with Richard Sanders' instruction that
54 At one point Rieseberg testified , in substance, that during this con-
frontation he had asked the off-duty employees to leave because they
were in an unauthorized area . However, at four other points in his testi-
mony, Rieseberg testified that he had asked the employees to leave. I
have credited this latter testimony.
56 I base my findings regarding Rieseberg's remarks to the employees
in the housekeeping area on his credible testimony and that of Raymond
Hill. Review of Murray's, Royce's, and Bryant's testimony shows they
had scant recollection of Rieseberg 's remarks when he confronted the
off-duty employees in the corridor near the housekeeping department on
1 February.
Royce did not have an opportunity to flatly deny calling Rieseberg a
"damn liar." Murray and Bryant denied hearing anyone call Rieseberg a
liar. However, I find it likely that Rieseberg's assertion that the employ-
ees were interfering with the hospital's operations provoked such an emo-
tional response from a leading union supporter . This reason and my im-
pression that Rieseberg gave his version of the encounter in a straightfor-
ward manner convinced me that Royce made this remark.
673
they refrain from interfering with the Respondent's oper-
ations. There was no reason for them suddenly to aban-
don their adherence to that practice on 1 February.
Indeed, the record shows that prior to their encounter
with Rieseberg in the housekeeping area Royce and the
other union supporters had exhibited the same pattern of
conduct that they had followed over the previous week-
end. I also observed that Murray and Royce were em-
phatic in denying that they or any of the off-duty em-
ployees had expressed the intent to conduct their cam-
paign wherever they wanted to in the hospital. These
factors plus Hill's testimony persuaded me that Rieseberg
and Hofstetter were embellishing the off-duty employees'
responses to Rieseberg's remarks. Accordingly, I have
not credited their assertions that Royce and other off-
duty employees declared their intention to conduct their
organizing wherever they wanted to in the hospital.
Shortly before Rieseberg ended his remarks to the off-
duty employees in the housekeeping area and returned to
his office, Hofstetter terminated his meeting. As the on-
duty employees exited from the meeting room, there
were two brief conversations between them and the off-
duty employees in the nearby corridor. Bryant greeted
housekeeping employee Bobar. Murray conversed with
housekeeping employee Bergeron. S 6 Neither of the con-
versations included any solicitations on the Union's
behalf. Nor were they accompanied by any distribution
for the Union.
I did not credit Rieseberg's testimony that the off-duty
employees standing in the corridor near the housekeep-
ing area were blocking the passageway. Aside from his
claim, there was no showing that the off-duty employees
interfered with any hospital activity. There was no evi-
dence that any wheelchair or other rolling equipment ex-
perienced difficulty passing through the corridor near
the housekeeping area while the off-duty employees
were present there on 1 February. Indeed, Rieseberg
conceded that he did not see any interference with the
passage of any employee, patient, or wheelchair. Nor did
I accept Rieseberg's view that the off-duty employees
engaged in "shouting" and "disruptive behavior." Hof-
stetter's credited testimony showed that the off-duty em-
ployees did not generate enough noise to interrupt his
meeting.
Rieseberg's credibility was seriously impaired by his
attitude toward the hearing before me. His testimony evi-
denced a serious lack of respect for these proceedings.
He showed this sentiment when asked to explain the con-
flict between his affidavit to the Springfield police, in
which he asserted that "[A]ll of the off-duty personnel
were shouting and preventing the housekeeping meeting
from being conducted," and his testimony before me that
he did not observe any interruption of that meeting.
When counsel for the General Counsel asked Rieseberg
to explain the contradiction, he became evasive, answer-
ing that the divergence was "a verbal technicality." Rie-
seberg gave further evidence of his disdain toward the
ss I base my findings regarding the end of Hofstetter 's meeting and the
two conversations on Murray's and Bryant's testimony.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing when he testified that housekeeping , mainte-
nance , and the morgue were patient care areas.
I fmd from Raymond Hill 's testimony that shortly
after most of the off-duty employees had dispersed and
Rieseberg had returned to his office, Hill observed
housekeeping employee Glen Bobar talking to three or
four off-duty employees, including Royce and Bryant, in
the housekeeping area. Hill did not overhear the conver-
sation . Hill immediately walked to the administrator's
office where he reported the conversation to Rieseberg.
Rieseberg dispatched Personnel Assistant Jacques to
the basement with instructions to order the off-duty em-
ployees to leave the housekeeping area. Jacques arrived
in the housekeeping area where she encountered Bobar
and several off-duty employees, including Royce.
Jacques told the employees that they were not to talk to
Bobar while he was on duty. While the discussion went
on, Bobar departed.
I find from Royce's testimony that Jacques issued
what Jacques called a second verbal warning to Royce
at a time when Royce was openly engaging in union ac-
tivity. Jacques told Royce that Rieseberg had previously
given her a first verbal warning. I also credited Royce's
denial that she told Jacques that she, had the right to be
anywhere in the hospital. s 7
In appraising Jacques ' reliability , I considered her de-
meanor and a substantial inconsistency between an affi-
davit she gave to the Springfield police and her testimo-
ny before me. Absent from her affidavit was any asser-
tion that Royce claimed the right to go anywhere in the
hospital. I also noticed on cross-examination by the
Charging Party 's counsel that Jacques shifted her testi-
mony regarding what she told the employees in the
housekeeping area . These factors convinced me that her
account of this incident was unreliable.
I find from Rieseberg's testimony that on receiving
Jacques' report of her encounter with the off-duty em-
ployees in the housekeeping area he first called the Re-
spondent's attorneys . Immediately thereafter, he tele-
phoned the Springfield police department. According to
Rieseberg his conversation with the chief of police, Peter
Joseph Herdt , "was a very short one." Rieseberg told
Herdt of his concern about the presence of approximate-
ly 15 people who were disturbing visitors and the "qual-
ity care of the patients."58 Rieseberg asserted that these
"people" were roaming in nondesignated areas of the
hospital and that one off-duty employee had distributed
leaflets in the intensive care unit . Rieseberg claimed that
this conduct was disruptive to the "quality care of the
hospital ." Reiseberg explained to Herdt that off-duty em-
ployees were authorized to be in the cafeteria, the cof-
feeshop , "and a dock type area ." Rieseberg insisted that
he could not operate the hospital under these conditions
61 Jacques testified that she voiced a warning to all the off-duty em-
ployees present, and that Royce claimed the right to go anywhere in the
hospital In light of Royce's conduct showing that she appreciated that
her off-duty activities were to be limited to nonpatient care areas, and my
impression that she was more candid than Jacques , I have credited Royce
when her testimony differed from Jacques' testimony . I fmd it unlikely
that Royce would have claimed the right to go anywhere in the hospital
se Where Rieseberg and Chief Herdt disagreed as to the content of this
conversation, I have credited Herdt, who impressed me as being the
more careful and candid witness
and requested the presence of police. When Herdt asked
what it was that Rieseberg wanted the police to do, Rie-
seberg replied that he wanted the off-duty employees to
be "evacuated immediately," and, if necessary, that they
be arrested. The conversation ended and Chief Herdt
dispatched Lieutenant Francis E. Chadbourne and inves-
tigator Joseph Estey to the hospital with instructions to
evaluate the situation and report back to Herdt.
Chadbourne and Estey proceeded to the hospital
where they were greeted initially by Peter Hofstetter. I
find from Lieutenant Chadbourne's testimony that Hof-
stetter told Chadbourne that there was a group of 12 to
14 people that had been roaming the hospital and not in
"the areas that they were suppose to be in." I also find
from Chadbourne's testimony that Hofstetter explained
that the hospital had asked the off-duty employees to re-
frain from this conduct and that they had refused to heed
this request and the hospital's further request that they
leave.
Off-duty employees Simone Murray, Diane Allen,
Judith Bryant, and Roxanne Royce were in the lobby
when Lieutenant Chadbourne approached them and re-
quested that they leave the premises . The four off-duty
employees refused.59
After the four employees refused to leave the hospital,
Chadbourne and Hofstetter proceeded to the latter's
office where Chadbourne telephoned State's Attorney
Michael Sheehan . Chadbourne reported the details of his
first confrontation with the off-duty employees in the
hospital . He advised Sheehan of the Respondent's com-
plaint that the off-duty employees were roaming through
the hospital despite the Respondent's request that they
refrain from such conduct and stay in designated areas.
Sheehan advised Chadbourne to ask the off-duty employ-
ees to leave the premises and, if they did not comply, to
issue citations to them for trespassing.60
59 I base my findings regarding Lieutenant Chadbourne's first confron-
tation with the off-duty employees on his testimony and the testimony of
the four employees involved. Hofstetter 's testimony showed that he was
present at this confrontation in the lobby His testimony regarding Chad-
bourne 's request was conflicting . First, Hofstetter testified that Chad-
bourne had asked the employees to leave the lobby area Later, Hofstet-
ter testified that Chadbourne explained that the police had been called to
persuade the off-duty employees to "stay out of the patient care areas, in
some designated area " Hofstetter also testified that in the lobby he had
advised the employees that the hospital 's only interest was to obtain the
off-duty employees' agreement to stay out of patient care areas and re-
strict themselves to four designated areas, including the lobby However,
Hofstetter's pretrial affidavit did not corroborate this last recollection
These variations in Hofstetter's testimony regarding his remarks and
Chadbourne's first encounter with the off-duty employees on 1 February
caused me to look to Lieutenant Chadbourne and the four employees,
who gave more consistent testimony in a candid manner, for my findings
of fact in this instance
80 In his testimony , Chadbourne insisted that he and Sheehan had dis-
cussed the four designated areas, the lobby, the discharge area, the cof-
feeshop and the cafeteria, and that Sheehan referred to those areas in his
instructions to Chadbourne . Chadbourne also testified that following
Sheehan's instructions he told the off-duty employees that they had the
option of confining their activity to the four designated areas if they
wished to remain on the premises However , I find from Estey's testimo-
ny that Chadbourne stated that he intended to give the off-duty employ-
ees one more opportunity to leave the premises and, if they refused to
leave, he would issue citations, after which he would give them an addi-
tional half hour to comply with his order. According to Estey, Chad-
Continued
SPRINGFIELD HOSPITAL
I find from Sheehan's and Chadbourne's testimony that
their second telephone conversation occurred at approxi-
mately 3:40 p.m. I also find from Sheehan's testimony
that he discussed the four designated areas with Chad-
bourne in that conversation.
It is undisputed that Chadbourne immediately dis-
patched officer Estey to police headquarters to obtain a
book of citation forms. Estey returned in about 20 min-
utes.
I fmd from Chadbourne's and Rieseberg's testimony
that soon after Chadbourne had completed his call to
Sheehan, Rieseberg attempted to set up a conference
with the off-duty employees either as a group or as indi-
viduals with the objective of persuading them to leave
the hospital "without any further action." He dispatched
Hofstetter and Demond to contact the off-duty employ-
ees. Chadbourne accompanied Rieseberg to the hospital's
conference room where they waited for the off-duty em-
ployees' response to Rieseberg's overture. a 1
Rieseberg's effort to set up a meeting in the conference
room was unsuccessful. Similarly, his second effort at a
meeting with off-duty employees in the lobby failed.
After waiting in vain for 15 or 20 minutes, Chad-
bourne, Estey, Hofstetter, and Demond proceeded to the
discharge area where they found a group of five off-duty
employees consisting of Barbara Davis, Simone Murray,
Roxanne Royce, Judith Bryant, and Beverly Camire.
Chadbourne told the employees that they could be in the
coffeeshop, the cafeteria, the lobby, and the discharge
area . He added, however, that because they had been in
patient care areas and had been disruptive and disorder-
ly, he was asking them to leave. Although Davis called
Chadbourne's attention to the fact that the five employ-
ees were standing in the discharge area, one of the four
areas he had mentioned, Chadbourne insisted that the
employees leave the hospital.62
Chadbourne concluded his remarks with a warning.
He told the five off-duty employees that if they refused
to leave the hospital after service of the citations, he
would arrest them. I also find from Davis' testimony that
Chadbourne explained that if arrested they would be
bourne intended to place noncomplying employees under custodial arrest
and remove them from the hospital . I find from Sheehan's testimony that
he did not learn of the designated areas until after his first telephone con-
versation with Lieutenant Chadbourne, and that in his remarks to Chad-
bourne in their first conversation on 1 February, Sheehan made no refer-
ence to limiting the access of the off-duty employees to four areas. Ac-
cordingly , I have rejected Chadbourne's assertions that he and Sheehan
discussed the four areas and that he gave the off-duty employees the
option of remaining in those areas.
81 Rieseberg testified that when Chadbourne advised him of Sheehan's
initial advice on how to treat the off-duty employees, he responded in
substance that everything possible should be done to avoid citation and
arrest, and that it was not the Respondent 's desire to achieve either of
those results . In rejecting Rieseberg's version , I noted first that he had
invited the police to the hospital with the suggestion that they resort to
arrests if necessary . I also considered that he was not a candid witness
when testifying about 1 February. In contrast, Chadbourne was a consci-
entious witness , trying to provide his best recollection.
!S I base my findings as to this critical confrontation in the discharge
area on the testimony of Davis, Royce, and Murray. According to Chad-
bourne, he told the employees to restrain themselves to the four designat-
ed areas and that if they did not do so, he would issue a citation to the
offenders for engaging in unlawful trespassing . Although Chadbourne im-
pressed me as being an objective witness, he appeared uncertain about
the details of what he had said to the employees.
675
handcuffed, with their hands behind their backs, taken to
Burlington , Vermont, on a bus where they would be
searched, and finally arraigned at White River Junction
on the following morning.
On hearing Chadbourne' s warning, the five employees
requested time to consider the situation. Chadbourne
granted 10 minutes during which the five employees
consulted with Richard Sanders, who assured them that
they could lawfully continue to be in the hospital as long
as they were not disruptive.
The five employees returned to the discharge area
where Lieutenant Chadbourne and officer Estey reap-
peared. Chadbourne asked the employees for their deci-
sion . Their response was that they were going to remain
in the hospital and conduct themselves as they had been
doing. Davis conveyed Sanders' request that Chadbourne
come out to the parking lot and confer with the union
organizer. Chadbourne instructed Estey to issue the cita-
tions and left to confer with Sanders.
Estey issued citations to each of the five off-duty em-
ployees. In each citation, Estey alleged that the employ-
ee had engaged in unlawful trespass and ordered her to
appear before the Windsor District Court at White River
Junction, Vermont. Contrary to Chadbourne's and
Estey's testimony, I fmd that Chadbourne did not offer
to permit the five off-duty employees to remain in the
hospital if they agreed to restrict themselves to the four
designated areas. 63
I did not credit Hofstetter's testimony that the five off-
duty employees said that they intended to go where they
wanted to in the hospital. The absence of this assertion
from the affidavit he gave to a Board agent in March
1982 and his failure to explain satisfactorily its absence
cast doubt on his testimony at the hearing.
Instead, I credit Simone Murray's denial that any of
the off-duty employees voiced such an intention during
any of the confrontations leading up to the service of the
citations.84
It is undisputed that Chadbourne finally told Davis,
Camire, Royce, Murray, and Bryant that they had 30
minutes to leave the hospital. At this juncture, Chad-
bourne and Estey left for their headquarters.
It is also undisputed that after the police officers de-
parted the five off-duty employees left the discharge area
88 On cross-examination , Estey cast doubt on his earlier corroboration
of Chadbourne's testimony . Estey admitted Chadbourne told Hofstetter
that he intended to ask the five off-duty employees to leave the hospital
and if they refused he would issue citations to them . Demond and Hof-
stetter, who were at the confrontation, gave conflicting versions of Chad-
bourne's remarks to the five off-duty employees. Although Hofstetter's
testimony at one point corroborated Chadbourne and Estey , at an earlier
point he testified that Chadbourne asked the employees to leave and that
Hofstetter gave them the alternative. Demond first testified that she
could not recall what Chadbourne had said. Later, she contradicted him.
In light of these conflicting accounts and my impression that Davis,
Royce, and Murray were giving their best recollection in a straightfor-
ward manner, I have credited their version of Chadbourne's remarks.
64 Nor did I credit Hofstetter 's testimony that Judith Bryant greeted
the issuance of the citations with levity. The record shows that Bryant
cried when she was arrested . Further, at the hearing she found it difficult
to testify about her arrest without crying. These factors together with my
impression that Hofstetter was attempting to embellish his testimony to
portray Bryant and her colleagues as mutinous employees persuaded me
to reject his testimony in the face of Bryant's denial.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and each ultimately found her way to the cafeteria. At
the request of her supervisor, Beverly Camire reported
for work in the X-ray department. The remaining four
off-duty employees continued their conversation and de-
cided to have supper in the cafeteria.
It is also undisputed that before meeting in the cafete-
ria the four went elsewhere. Murray and Davis went to
the lower parking lot and returned to the discharge area
briefly. Bryant also went to the lower parking lot and
then to the lobby. Royce went to the lobby and the dis-
charge area. Beverly Camire, who had reported to the
X-ray department and was on duty, also found her way
to the cafeteria. Thus, about 4:30 p.m. when Chadbourne
came to the cafeteria, he found the same five employees
who had received citations in the discharge area sitting
in the cafeteria.
In addition to Davis, Camire, Royce, Murray, and
Bryant, there were at least 20 employees present in the
cafeteria. After locating the five cited employees, Chad-
bourne announced that they were under arrest. Howev-
er, when Chadbourne learned that Camire was on duty,
he released her. When Royce asked what the charge
was, Chadbourne said, "Unlawful trespassing."
Four officers assisted Chadbourne. They searched and
handcuffed the four employees, and led them out of the
hospital into police cars. Several employees and supervi-
sors witnessed the arrests in the cafeteria and on the way
to the waiting automobiles. Among the supervisors were
Peter Hofstetter and Patricia Demond. No member of
the hospital' s management intervened to stop the arrests.
The police took Bryant, Davis, Murray, and Royce to
the Springfield, Vermont police station, where they
waited with their hands cuffed behind their backs for ap-
proximately 40 minutes. Thereafter, the Springfield
police took the four handcuffed employees to the Wood-
stock, Vermont correctional center, where they remained
for approximately one 1-1/2 hours until released on bail
about 8 p.m. No prosecutions followed, nor did Re-
spondent impose any punishment on them.65
b. Analysis and conclusions
I find that on 1 February Administrator Rieseberg
called on the Springfield police department to assist in
enforcing the hospital's no-access policy against his off-
duty employees. In his desire to bring the police to the
hospital, Rieseberg created the impression that the hospi-
tal could no longer provide care to its patients because
the off-duty employees were "roving in non-designated
areas." Lieutenant Chadbourne received the same mes-
sage from the Respondent's management when he ar-
rived at the hospital on Chief Herdt's orders. In an effort
to remedy the Respondent's complaint, Chadbourne told
the off-duty employees that because of their refusal to
stay in the designated areas, he was ordering them to
leave the hospital.
The Respondent's attempt to show that the off-duty
employees' conduct on the weekend preceding 1 Febru-
ary and on 1 February warranted Rieseberg's call for
police assistance fell short of its goal. Rieseberg's report
85 My findings regarding the arrests were based on the testimony of
Simone , Murray, Barbara Davis, and Lieutenant Francis E. Chadbourne
to Chief Herdt that the off-duty employees had disturbed
quality health care , patients, and visitors was unsupport-
ed in the record before me. There was no showing that
the hospital's management had any ground for claiming
that the off-duty employees had interfered with any pa-
tient care or that they had disturbed patients or visitors
either during the weekend or on Monday, 1 February.
Rieseberg 's further claim that an off-duty prounion em-
ployee had handed out a leaflet in the intensive care unit
was without evidentiary support. Indeed, at the meeting
Rieseberg held with his supervisors on the morning of 1
February, he heard that "really nothing" had taken place
during the just concluded weekend. Finally, his confron-
tation with the off-duty employees in the hospital 's base-
ment had no impact on the hospital's operations. Nor did
it interfere with Hofstetter's meeting.
Further, there was no showing that the off-duty em-
ployees were engaged in any misconduct that might de-
prive them of the Act's protection either at the time of
the five citations or later when the four arrests occurred.
Indeed , the police issued the citations in the discharge
area , one of the four designated locations at which the
prounion off-duty employees had previously often en-
gaged in solicitation on the Union's behalf. The subse-
quent arrest occurred in the cafeteria, again one of the
four designated areas in which off-duty employees had
previously freely engaged in union activity.
By causing the police to come on its premises to en-
force its no-access policy, I find that the Respondent was
responsible for the citations of employees Bryant,
Camire, Davis, Murray, and Royce and for the arrest of
employees Bryant, Davis, Murray, and Royce. The cita-
tions and arrests were likely to interfere with, restrain,
and coerce the Respondent's employees in the exercise of
their Section 7 right to engage in union activity, and thus
violated Section 8(a)(1) of the Act. Baptist Memorial Hos-
pital, 229 NLRB 45, 46 (1977).
The Respondent attempted to show that the off-duty
employees invited and expected the arrest of 1 February.
According to the Respondent's witnesses Flora Young
and Margaret Richmond, employees Royce, Davis, and
other off-duty employees welcomed the prospect of
being arrested . LPN Kathryn Thomas testified that after
the election she overheard Judith Bryant respond to em-
ployee Andrea Gendron's remarks about the arrests and
the Union 's success in one of the elections by saying:
"We knew that if we didn't do something, we would
never win the election."
However, I did not credit the foregoing testimony of
Young, Richmond, or Thomas. The shock and emotion
that Davis, Bryant, and Royce exhibited when the arrests
occurred, Bryant's display of emotion as she testified
about the arrests of off-duty employees, and their discus-
sions with Union Organizer Richard Sanders prior to the
arrests persuaded me that Young, Richmond, and
Thomas were not reliable witnesses in their portrayal of
the off-duty employees as being anxious to incur arrest.
Richmond's testimony on cross-examination showed that
the off-duty employees considered the possibility of
arrest unlikely and that the Union never suggested that
the employees seek arrest. Bryant and Gendron, who im-
SPRINGFIELD HOSPITAL 677
pressed me as being more straightforward witnesses than
Thomas, denied that Bryant made the remark attributed
to her by Thomas. Further doubt as to Thomas' reliabil-
ity arose from her failure to include this assertedly
shocking incident in her pretrial affidavit or report it to
the Respondent promptly.
According to Howard Richmond 's testimony , offered
by the Respondent, Sanders told the employees that "if
anyone were or was arrested it would probably be
[Sanders] for trespassing ." Absent from the record was
any indication that Sanders encouraged any of the Re-
spondent's employees to provoke arrests on or near the
Respondent 's premises.
In sum , I find that neither the Union nor the off-duty
employees sought or welcomed the citations or the ar-
rests that occurred on 1 February. In any event, I find
that the Respondent was singularly responsible for the
citations and arrests that occurred on that date in its caf-
eteria.
I also find that Susan Jacques enforced the Respond-
ent's no-access rule when she gave a verbal warning to
off-duty employee Royce on 1 February in the hospital's
housekeeping area. At that time, Jacques was aware that
Royce was actively supporting the Union' s campaign. As
shown above, the Respondent 's no-access policy was in-
valid under Tri-County Medical Center, 222 NLRB 1089
(1976). Accordingly, I further find that by this attempt to
enforce its invalid no-access rule against a union activist,
the Respondent violated Section 8(a)(1) and (3) of the
Act. Glassmaster Plastics Co., 203 NLRB 944, 949 (1973).
9. Charles Vogt's warning
Nurses aide Judith Benjamin was in the cafeteria on
the afternoon of 1 February when Lieutenant Chad-
bourne arrested off-duty employees Bryant , Davis,
Murray, and Royce . On witnessing this event , Benjamin,
whose shift had ended early in the afternoon , went to the
discharge area intending to leave the hospital . When she
arrived in the discharge area, Benjamin encountered em-
ployee Thomas Grant and Director of Finance Charles
Vogt. When Benjamin expressed her intention to wait
there, Grant warned her not to do so because she might
be arrested . When Benjamin expressed disagreement,
Grant asked Vogt if Benjamin could be arrested if she
remained in the discharge area . Vogt answered that she
could.66
Coming soon after the four arrests of prounion off-
duty employees, of which Benjamin and Grant were
aware , Vogt's remark was likely to suggest to them that
the Respondent would cause a similar fate to befall other
off-duty employees who might engage in solicitation on
the Union 's behalf in the discharge area. I find that
Vogt's remark was an unlawful restraint on the employ-
ees' rights under Section 7 of the Act, and therefore vio-
lated Section 8(a)(1) of the Act. Drug Research, 233
NLRB 253, 263 (1977).
10. The election day no-access policy
I find from Peter Hofstetter's testimony that on 4 Feb-
ruary 1982, the date of the representation elections at the
hospital , the Respondent instituted a no-access policy
limiting off-duty employees to its cafeteria . Hofstetter
also admitted that he advised the Bums security guards
of this new policy.
However , the Respondent did not enforce its election
day no-access policy uniformly. The record shows three
undisputed attempts by the Respondent to enforce its
new policy on 4 February . At approximately 1 p.m. that
day, the Respondent 's clerical laboratory supervisor,
David LaPlante , told off-duty employee Thomas Grant
that if he intended to remain at the hospital , he should
go to either the cafeteria or to the coffeeshop . Later that
same day, at approximately 3:20 p.m., guard Harry
Waidler found off-duty employee Grant in the laboratory
and advised him that he was prohibited from being in the
hospital that day . Finally , I find from employee Lori
Barrell 's testimony that at approximately 4:45 p.m., when
she was off duty, Waidler told her that she was prohibit-
ed from entering the hospital. When Barrell insisted on
going to the emergency room to make a telephone call,
Waidler followed and stayed with her while she com-
pleted the call.
I do not accept the General Counsel 's contention that
Waidler and LaPlante violated the Act by enforcing the
Respondent 's no-access policy of December 1981. In-
stead , I find from Hofstetter's testimony that the Re-
spondent was attempting to promulgate and enforce a
new no-access policy that was to be effective only for 4
February 1982, the day of the Board-held elections at the
hospital.
Where, as here, the facts constituting unfair labor
practices were not alleged in the complaint but have
been fully litigated , Board doctrine permits me to fmd a
violation of the Act and provide an appropriate remedy.
Caruso & Ciresi, Inc., 269 NLRB 265 fn . 2 (1984). The
Respondent did not show that it thoroughly disseminated
its new no-access policy of 4 February 1982 to its em-
ployees. Also, in light of the Respondent 's union animus,
the timing of the new rule, its limitation to election day,
and the departure from the Respondent 's practice of per-
mitting off-duty employees to return to the hospital to
pick up pay and for other personal reasons, I find that
the purpose of the new rule was to thwart the union ac-
tivity of off-duty employees . Therefore, by promulgat-
ing, maintaining, and enforcing its new no -access policy
on 4 February 1982 against employees Grant and Barrell,
the Respondent again violated Section 8(a)(1) of the Act.
Hudson Oxygen Therapy Sales Co., 264 NLRB 61, 73
(1982); Tri-County Medical Center, supra.
00 In contrast to Judith Benjamin , who seemed more certain of her tes-
timony, employee Thomas Grant responded hesitantly to leading ques-
tions as he provided a version of the incident that differed substantially
from Benjamin 's. Vogt gave two conflicting versions of the conversation,
thereby impairing the reliability of his testimony regarding this incident.
As Benjamin seemed certain of her testimony , which she gave in a forth-
right manner , I credited her version.
11. The employment of deputy sheriffs
The Respondent admittedly requested and obtained
the presence of off-duty Windsor County deputy sheriffs
at the hospital on 3 and 4 February 1982. The off-duty
deputies wore their normal uniform , including sidearms.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the Respondent paid them for their time at the
hospital.
On both days deputies were stationed on the hospital
grounds in two police cruisers. Deputies were also
present in the hospital's basement area and on the ground
floor. An employee observed two deputies in the cafete-
ria. On the day of the election, employee Barbara Davis
saw as many as three deputies on the ground floor.
On 4 February 1982 Peter Hofstetter notified the dep-
uties that there would be an election at the hospital that
same day and instructed them to restrict access to the
hospital. The deputies were to deny entry to off-duty
employees unless they were coming to vote and to non-
employees other than delivery truckdrivers and persons
visiting patients.
I find from employee Simone Murray's testimony that
on 3 February 1982 the Windsor County deputies were
visible on the Respondent's grounds during her entire
shift, from 7 a.m. until 3:30 p.m. On 4 February Murray
arrived at the hospital about 6:30 a.m. with her husband,
her brother Michael, and employees Glenn Bobar and
Judith Bryant. As Murray and her companions entered
the basement, a deputy stopped them and refused entry
to Murray's husband because he was not a hospital em-
ployee.
Later that same day two deputies detained Murray and
employee Sherrill Pelton briefly before letting them pro-
ceed to the voting area. There was no evidence of any
other contact between the deputies and hospital employ-
ees on 3 and 4 February.
The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by causing armed police to be
present in various areas of the hospital on 3 and 4 Febru-
ary 1982 and by causing the same police to stop and
question employees as they came to the hospital to work.
I find, however, that the facts do not establish the al-
leged violations.
Although I have little doubt that the Respondent invit-
ed the deputy sheriffs to the hospital on 3 and 4 Febru-
ary 1982 as part of its antiunion campaign, there was no
showing that the deputies interfered with the employees'
rights under Section 7 of the Act. There was no showing
that the Windsor County deputies did or said anything
likely to interfere with, restrain , or coerce the Respond-
ent's employees in the exercise of their rights to support
the Union.
The record shows only two incidents involving depu-
ties and the Respondent's employees. In the first encoun-
ter, a deputy barred a nonemployee from entering the
hospital while he was in the company of employees on
their way to work. There was no showing that the
deputy questioned any of the employees about their
union activity or sentiment or interfered with their right
to vote. Instead, the deputy attempted to identify em-
ployees who were entitled to enter on the hospital prem-
ises to go to work and nonemployees who had no legiti-
mate business in the hospital.
In the second incident, as in the first, I find no inter-
ference with the employees' rights under Section 7 of the
Act. Again, there was no questioning of employees re-
garding their union activity or their sentiment toward
the Union. Nor was there any showing that deputies
interfered with the employees' access to the Board-held
election.
Finally, the presence of the deputies in official uni-
forms and carrying sidearms, although unusual at the
hospital, did not create a coercive atmosphere. Poray,
Inc., 160 NLRB 697, 705 (1966). Accordingly, I shall
recommend dismissal of the allegations that Respondent
violated the Act by causing police to be present at the
hospital and by causing those same police to stop and
question employees.
B. The Alleged Discrimination Against Lori Barrell
and Thomas Grant
1. Lori Barrell
a. Facts
The Respondent employed Lori Barrell as a part-time
nurses aide from 1976 to March 1977. Beginning in
March 1977 and until August 1981, the Respondent em-
ployed Barrell as a full-time licensed practical nurse
(LPN). From August 1981 until the present, Barrell
worked part-time at the hospital as an LPN. Barrell
changed from full-time to part-time in August 1981 to
accommodate her return to school to become a regis-
tered nurse.
By her letter of 7 August 1981 Ruth Lawrence, the
Respondent's director of nursing, advised Barrell that the
hospital was placing her on part-time status and that she
would be scheduled "as needed." Lawrence also de-
clared that, Barrell's schedule permitting, the hospital
might schedule her "on a regular basis, to work in with
[her] class-time."
Barrell began attending nursing school on a full-time
basis in August 1981. She was able to work every other
Saturday and every Sunday at the hospital. In addition,
Barrell worked at the hospital during holidays and on
vacations from school. The hospital regularly posted a 4-
week schedule 1 week prior to commencement of the
schedule. Barrell continued to work on this part-time
basis until late November 1981.
The Respondent scheduled Barrell to work from Sat-
urday, 21 November, through and including Thursday,
26 November, and again on Sunday, 29 November 1981.
Her supervisors during that period were Nursing Super-
visor Pamela Emery and Ruth Lawrence.
On 23 November 1981 Lori Barrell worked in the hos-
pital's emergency department from 3 to 11 p.m. with reg-
istered nurse Sherrilyn Sytsma. At 5 p.m. that day Lori
Barrell began a supper break that, under hospital policy,
was scheduled to be 30 minutes in duration. Instead of
going to the cafeteria or to the coffeeshop, Barrell, clad
in her uniform, joined a mixed group of 20 to 25 off-duty
employees, in street attire, and nonemployees. This
group had arrived at the hospital, as she had expected, to
present petitions to the hospital trustees protesting their
retention of the law firm of Skoler, Abbott & Hayes and
a management consulting firm , Modern Management
Methods, Inc, and to discuss the recent resignation of
fellow employee Kathy Dykeman from her job at the
hospital. Barrell intended to support both objectives, but
was primarily concerned about the Respondent's treat-
SPRINGFIELD HOSPITAL 679
ment of Dykeman. I find from Simone Murray 's testimo-
ny that the employees in the group believed that the Re-
spondent had falsely accused Dykeman of misconduct,
thereby causing her to resign her employment at the hos-
pital.
The group, which included Sue Osborn, Barbara
Davis, Simone Murray, and Margaret Richmond among
14 off-duty employees, had entered the hospital through
the outpatient area on the ground floor , expecting to find
the Respondent's trustees in the conference room. Find-
ing the conference room empty, the group proceeded up
the stairway that leads to a point on the first floor across
the corridor from Rieseberg 's office and adjacent to the
coffeeshop.67
The petitions that the group sought to present to the
Respondent referred to the law firm as "notorious union-
busters, known for trampling on workers ' rights and pro-
voking strikes." A second petition referred to the law
firm and 3M as "these outsiders who are known for
trampling on workers' rights." Both petitions carried the
name of United Electrical, Radio & Machine Workers of
America (UE), Local 218 on top.68
Barrell reached the top of the stairs, near Rieseberg's
office, where she heard a discussion that had begun be-
tween Rieseberg and the group regarding Skoler , Abbott
& Hayes . Union Organizers Sanders and David Pudlin
were present as was Ruth Lawrence. Lawrence took
pencil and paper and began to write . When Union Orga-
nizer Pudlin suggested that what she was doing was un-
lawful surveillance , Lawrence responded in substance
that she was looking for employees who had called in
sick that night.
After Rieseberg asked the two union organizers to
leave, employee Margaret Richmond spoke up on behalf
of the employees' group . She said she wanted to discuss
Dykeman's resignation . Rieseberg refused to discuss the
matter until Pudlin and Sanders had left. After the two
union organizers left, Rieseberg persisted in his refusal to
talk to the employees . Presently , Lieutenant Chadbourne
of the Springfield police arrived and dispersed the group.
At this point, approximately 15 minutes of Barrell's
supper break had elapsed.
Barrell returned to the emergency room , obtained
some money , and told nurse Sytsma that she would
return in a few minutes. Barrell went to the cafeteria,
had her supper, and arrived back in the emergency room
at 5:30 p.m., at which time Sytsma left for supper.°°
I did not credit RN Pamela Potter's testimony that she
observed Barrell in the cafeteria at 5:55 p.m. Her selec-
tive memory singled out Lori Barrell for special atten-
tion on 23 November 1981. Potter could not recall
67 I find from Eric Rieseberg's testimony that one of the purposes for
which the Respondent retained Modern Management Methods, Inc.
(3M), was to assist it in opposing the Union 's organizing campaign. I fur-
ther find that Skoler , Abbott & Hayes was also counseling the Respond-
ent in reference to the Union's organizing effort.
08 The parties stipulated, and I find, that United Electrical , Radio &
Machine Workers of America (UE), Local 218, is a labor organization
within the meaning of the Act.
69 1 base my findings regarding the last 15 minutes of Barrell's supper
break on 23 November 1981 on her testimony and that of Sytsma. I also
credited Supervisor Emery's testimony that Barrell arrived in the cafete-
ria about 5 :20 p.m.
whether she was working with anyone else in the special
care unit that day . Nor could she identify anyone but
Barrell in the cafeteria between 5 :25 or 5 :35 p.m. and
5:55 p .m. that evening . There were three other persons
at her table, but Potter could not name any of them. Al-
though Sytsma was in the cafeteria from about 5:30 p.m.
until about 6 p.m., Potter did not remember seeing her
there.
In assessing Potter's testimony here , I have taken into
account her bias against prounion activists and her earli-
er unpersuasive attempt to place prounion employees
Murray, Royce , and Bryant outside the intensive care
unit on 31 January 1982 . These factors together with
Potter's knowledge on 23 November 1981 that Barrell
was prounion caused me to regard Potter's testimony as
unreliable.
RN Sherrilyn Sytsma, who worked with Barrell on 23
November 1981 , and Barrell impressed me as more
candid witnesses than was Potter . I have therefore cred-
ited Sytsma and Barrell.
After Barrell returned to the emergency room, Ruth
Lawrence twice attempted to talk to her. Barrell was
busy tending to patients when she learned of Lawrence's
unsuccessful attempts . Barrell unsuccessfully attempted
to contact Lawrence twice . However, Lawrence was un-
available because she was busy . At approximately 8:45
that same evening , Lawrence made contact with Barrell,
who was caring for a patient in pediatrics.
The two met in the emergency room . Lawrence, who
was accompanied by the evening supervisor, Pamela
Emery , addressed her remarks to Barrell 's participation
with the group that had met with Administrator Riese-
berg earlier that evening . Lawrence expressed displeas-
ure with Barrell 's conduct70 characterizing it as "unpro-
fessional" and adding "that the hospital didn 't need per
diem employees acting that way." Barrell asserted that at
the time she was with the group near Rieseberg 's office
she was on her supper break and , thus, on her own time.
Ruth Lawrence remarked that the hallway was not an
appropriate location in which to spend a supper break.
As the discussion proceeded , Lawrence stated that she
had reviewed the work schedule for the next week, that
it appeared that the hospital was adequately staffed, and
that Barrell's services were therefore unnecessary. Bar-
rell had been scheduled to work on 24, 25, 26, and 29
November . At Barrell's request , Lawrence agreed to put
in writing Barrell 's removal from the schedule and the
reason therefor. When Barrell asked if she was terminat-
ed, Lawrence replied, "I suppose we could terminate
you, but I don't want to do that ." Later that night, Law-
rence gave Barrell a memorandum addressed to "Dear
Lori," stating:
I am removing you from the schedule for Tues.
Nov. 24, Wed. Nov. 25, Thursday, Nov. 26 and
70 I base my findings regarding Barrell 's meeting with Lawrence on
Barrell's testimony . Lawrence 's testimony regarding the conversation re-
flected a sparse memory Unlike Barrell, who testified in a serious and
sincere manner, Lawrence's demeanor on cross-examination was at times
sardonic , which suggested disdain toward the hearing. For these reasons,
I regarded Lawrence's testimony regarding the alleged discrimination
against Barrell as unreliable.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunday, Nov. 29 as there seems to be sufficient
staffing without you.
The Respondent removed Barrell from the schedule. She
did not work any of the 4 days listed in Ruth Law-
rence's memorandum.
Lori Barrell reported for work again on Sunday, 6 De-
cember 1981. When she arrived at the hospital, Barrell
noticed that the December work schedule did not in-
clude her. I find from Barrell's testimony that she sought
an explanation from Supervisor Pamela Emery, who re-
plied that the Respondent had hired Barb Wakefield tem-
porarily, for 6 weeks, and that Wakefield would work
some 3 to 11:30 p.m. shifts and some 11 to 7 a.m. shifts.
Barrell complained about being replaced. Emery ex-
plained that Barrell was a per diem employee and there-
fore the hospital scheduled her to work only when
needed. Barrell sought further explanation, asking to see
the hospital's policy on per diem employees. Emery did
not know where the policy could be found. I find from
Emery's testimony that she told Barrell that the Re-
spondent was awaiting advice of its counsel before de-
ciding whether to put her back on the schedule.' 1
Barrell asked Emery if she wanted her to work on
Christmas Eve or on Christmas Day. Emery answered
no, adding that the hospital was adequately staffed.
On 12 December 1981 at Supervisor Anna Beth Her-
old's request, Barrell reported to the hospital for work.
That same evening, Supervisor Emery restored Barrell
to a regular work schedule, including Christmas and
New Years' Day.
I find from Barrell 's testimony that in the course of
their discussion Emery conceded that Barrell's removal
from the work schedule was attributable to her participa-
tion in the confrontation of the employees and nonem-
ployees with Rieseberg on 23 November 1981. In re-
sponse to Barrell's questioning about whether she was re-
moved from the schedule because of her part in that con-
frontation, Emery answered: "[Y]es I think you were."
Emery then added that Ruth Lawrence "was very upset
with you for walking in with them with your uniform
on." I also find from Barrell's testimony that in the ensu-
ing discussion regarding Barrell's restoration to the work
schedule, Emery again explained that between 6 and 12
December 1981, when Barrell was not on the work
schedule, Lawrence and Rieseberg were consulting with
the Respondent's attorneys "about the situation."
A final reference to Barrell's removal from the work
schedule in November occurred during a conversation
with Ruth Lawrence on Saturday, 30 January 1982, in
the hospital coffeeshop. I find from Barrell's testimony
that in the course of the conversation, which involved
employees Cheryl Jackman, Judith Bryant, and Barrell,
' 1 All that Emery could recall of her remarks to Barrell on 6 Decem-
ber was that the Respondent was withholding further work from Barrell
pending advice of counsel and that "we were caught in the middle of
what should be done as far as putting [Barrell] on the schedule or not "
However , Emery 's testimony did not negate the possibility that she said
more in response to Barrell's questions As Barrell's account seemed rea-
sonable and logical, and as she impressed me as being a candid witness, I
have credited her recollection where it supplemented Emery's testimony
Lawrence explained that she had removed Barrell from
the schedule because she was "mad" at her.
b. Analysis and conclusions
The General Counsel and the Charging Party contend-
ed that the Respondent reduced Lori Barrell's working
hours because of her participation in the confrontation
near Administrator Rieseberg's office on 23 November
1981, and thereby violated Section 8(a)(3) and (1) of the
Act. The Respondent contended first that the Act did
not protect Barrell's participation in the confrontation on
the grounds that the matter the group complained of had
no connection with wages, hours, and terms and condi-
tions of employment, and that Barrell and the group en-
gaged in misconduct. The Respondent also argues that
the record shows that it suspended Barrell because of her
unauthorized absence from her assigned work area (R.
Br. 84). As explained below, I find that Barrell 's loss of 4
days' work at the Respondent's hands was violative of
Section 8(a)(3) and (1) of the Act, as alleged.
Before considering the Respondent's motivation I must
turn my attention to determining whether Barrell's activ-
ity during her supper break on 23 November 1981 was
protected under the Act. In Union Carbide Corp., 259
NLRB 974, 977 (1981), enfd. in relevant part 714 F.2d
657 (6th Cir. 1983), the Board adopted Administrative
Law Judge Hutton Brandon's holding that a taxpayer's
petition protesting Union Carbide' s "antiunion activity,"
which was promulgated by a union during its organizing
campaign and distributed with the assistance of a coali-
tion of other unions, "was clearly a concerted and a
union activity." The petition, captioned "Taxpayers' Pe-
tition," contained the following language:
We, the undersigned object to Union Carbide cor-
poration's use of our tax dollars for anti-union ac-
tivities. The United States Government is officially
in favor of collective bargaining . We therefore call
upon congress and the president to investigate and
stop the improper use of our taxes.
Judge Brandon rejected the employer's contention that
distribution of the petition constituted political activity.
Instead, he concluded (Ibid.):
[T]he petition, whether the premise on which it was
based was ill founded or not, was directly related to
employee working conditions as affected by their
right to organize. It therefore constituted a distribu-
tion of material "pertinent to a matter which is en-
compassed by Section 7 of the Act." McDonnell
Douglas Corp., 210 NLRB 280 (1973).
Accord: Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
Looking to the teachings of Union Carbide, supra, I
find that the presentation of the two petitions in which
Lori Barrell and her fellow employees participated was a
concerted and union activity. Here, as in Union Carbide,
the petitions contained material "directly related to em-
ployee working conditions as affected by their right to
organize ." Union Carbide, 259 NLRB at 977. The peti-
tions, which Barrel] and her fellow employees supported,
SPRINGFIELD HOSPITAL
sought to persuade the Respondent to terminate its rela-
tionship with a consultant and a law firm that they and
the Union perceived as threats to their effort to achieve
better wages and working conditions through collective
bargaining . Thus , the two petitions directed attention to
a matter expressly addressed in Section 7 of the Act.72
The Board has also recognized that employees' con-
cern about the treatment of a fellow employee at the
hands of their employer is a proper subject for concerted
action protected by the Act. Auto-Truck Federal Credit
Union , 232 NLRB 1024 , 1028-1029 (1977); Youngstown
Osteopathic Hospital Assn., 224 NLRB 574, 574-575
(1976). Accordingly, I find in this case that Lori Barrell
and her fellow employees were engaged in concerted
and union activity when they supported the petitions that
the Union 's organizers sought to present to the Respond-
ent and when they sought to discuss with Rieseberg the
cause of Kathy Dykeman' s resignation.
The Respondent contended that Lori Barrell and her
colleagues lost the Act's protection on the ground that
the petitions they supported contained misrepresentations
that "were deliberate and maliciously false ." (R. Br. 96.)
In support of this contention , the Respondent invited at-
tention to references in one petition to Modern Manage-
ment Methods, Inc. and Skoler, Abbott & Hayes as 'out-
siders . . . known for trampling on workers ' rights," and
to references in the second petition to Skoler , Abbott &
Hayes as "union-busters," and "notorious union -busters,
known for trampling on workers ' rights and provoking
strikes."
The Court in Linn v. Plant Guards Local 114, 383 U.S.
53, 61 (1966), stated , with approval , the Board 's policy
regarding a union 's false statements about an employer
during an organizing campaign as follows:
In sum , although the Board tolerates intemperate,
abusive and inaccurate statements made by the
union during attempts to organize employees, it
does not interpret the Act as giving either party li-
cense to injure the other intentionally by circulating
defamatory or insulting material known to be false.
In such case the one issuing such material forfeits
his protection under the Act. Walls Manufacturing
Co., 137 NLRB 1317, 1319 (1962).
Applying the above-quoted principle to mistatements
about an employer's labor relations , the Board in Texaco,
Inc., 189 NLRB 343, 347 (1971), declared:
It is well settled that misstatements made in the
course of concerted activity which denounce an
employer for his conduct in labor relations , or in af-
fairs germane to the employment relationship, only
forfeit the statutory protection when it is evident
that the statements are deliberately or maliciously
false.
72 Sec . 7 of the Act provides in pertinent part:
Employees shall have the right to self-organization, to form, join, or
assist labor organizations , to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection.
681
Here, the Respondent is not complaining of disparage-
ment of its conduct in labor relations or any other injury
to it . The petitions in question did not contain any refer-
ence to the Respondent 's labor relations policy or its
labor relations practices . Instead, the petitions demanded
that the Respondent sever its relationships with the law
firm and the labor relations consultant that were guiding
its antiunion campaign.
Nor did the petitions misrepresent the Respondent's re-
lationships with the two firms guiding its antiunion cam-
paign . Eric Rieseberg admitted that the Respondent
hired Modern Management Methods, Inc. to assist it in
its campaign to defeat the Union's organizing effort. It is
also evident from the record that the Respondent re-
tained Skoler , Abbott & Hayes to provide legal advice
and represent it in these proceedings . The petitions
aimed their criticisms at those two firms and requested
that the Respondent terminate their services . From my
reading of Texaco, supra, both petitions were entitled to
the Act's protection.
However , assuming that deliberately or maliciously
false accusations directed against Skoler, Abbott &
Hayes or Modem Management Methods, Inc. would
have injured the Respondent's reputation and thus de-
prive the petitions of the Act's protection, I am not per-
suaded that the petitions contained any falsehoods. The
petitions' use of the words "union-busters" and "notori-
ous union busters" 7 3 either alone or together with the
phrase "known for trampling on workers' rights and pro-
voking strikes" should not be construed as representa-
tions of fact, but rather as "part of the conventional give-
and-take in our economic and political controversies like
`unfair' or 'fascist"' Cafeteria Employees Local 302 v. An-
gelos, 320 U.S. 293, 295 (1943). Such rhetorical hyperbole
represents nothing more than the expression of the col-
lective opinion of the Union, UE Local 218, and those
who signed or otherwise supported the petitions . The ex-
pression of such an opinion, "even in the most pejorative
terms, is protected under federal labor law ." Letter Carri-
ers Old Dominion Branch 496 v. Austin , 418 U.S. 264, 284
(1974). Accord: RAI Research Corp., 257 NLRB 918, 930
(1981); National Steel Corp., 236 NLRB 1033, 1036
(1978).
Finally, assuming that the accusations contained in the
petitions were untrue and somehow injured the Respond-
ent's image in its conduct of the antiunion campaign, the
petitions remain protected by the Act. There has been no
showing that the Union or UE Local 218 knew that the
accusations against Skoler , Abbott & Hayes or Modem
Management Methods, Inc. were "deliberately or mali-
ciously false." Texaco, Inc., supra . See also Letters Carri-
ers Old Dominion Branch 496, supra, 418 U. S. at 284, and
National Steel, supra at 1036 . Nor was there any merit to
the Respondent's contention that the two petitions violat-
7 s In common usage, the term "union-buster" connotes one who has a
demonstrated aptitude for defeating a union's organizing campaign or for
causing a union to lose its status as the collective-bargaining representa-
tive of an employer's employees . The term does not necessarily connote
unlawful conduct.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed Section 8(b)(4)(ii)(B) and (1)(B) of the Act.74 There
was no showing that the Union or UE Local 218 en-
gaged in conduct that amounted to violations of those
sections of the Act.
The Respondent also contended that the Act did not
protect Lori Barrell 's participation in the presentation of
the two petitions and the attempt to discuss Kathy Dyke-
man's resignation on the ground that the group of non-
employees and off-duty employees she joined were tres-
passing and engaging in disruptive conduct. I find, how-
ever, that the Respondent's contention was unsubstantiat-
ed.
The Board set out the following standard in Phase,
Inc., 263 NLRB 1168, 1169 (1982), which I have applied
in determining whether the group's conduct deprived
Barrell of the Act's protection.
While the Board, in determining whether health
care employees have engaged in unprotected con-
duct, has considered whether any harm to the insti-
tution's patients was caused by the employees' con-
certed activity, nevertheless, it has applied the same
standards of conduct to health care institutions as it
does to other enterprises. Thus, conduct such as a
concerted work stoppage in protest over employee
grievances, even if engaged in by health care insti-
tution employees, is protected unless it is unlawful,
violent, in breach of contract, or otherwise indefen-
sible.
Initially, I find no merit to the Respondent's claim that
the off-duty employees and the nonemployees were tres-
passing . As shown earlier in the decision, the Respondent
permitted off-duty employees to return to the hospital
for a variety of reasons prior to and after 23 November
1981. 1 have also found above that this practice persisted
in the face of the Respondent' s no-access rule, which
was in effect on 23 November 1981. In light of the Re-
spondent's practice and my finding, above, that the no-
access rule was violative of Section 8(a)(l) of the Act, I
find that Simone Murray, Barbara Davis, and the other
off-duty employees with whom Barrell joined were not
trespassing when they went to Eric Rieseberg's office on
23 November 1981. Further, even if Union Organizer
Richard Sanders and the other nonemployee members of
the group were trespassers, that fact would not deprive
Barrell and the off-duty employees of the Act's protec-
tion.
However, there has been no showing that the towns-
people and Sanders were trespassing . Absent from the
record was any evidence of any hospital policy or rule
prohibiting nonemployee visitors from walking through
nonpatient care areas to the administrator's office. In-
" Sec 8(b)(4)(u)(B) of the Act provides , in relevant part, that it shall
be an unfair labor practice for a labor organization or its agents
(u) to threaten , coerce, or restrain any person engaged in commerce
where an object thereof is . (B) forcing or requiring any
person . to cease doing business with any other person
Sec. 8(bXl)(B) of the Act provides , in relevant part, that it shall be an
unfair labor practice for a labor organization or its agents
(1) to restrain or coerce (B) an employer in the selection of his
representatives for the purposes of collective bargaining or the ad-
justment of grievances
stead, the record shows that the Respondent at least tol-
erated one earlier visit by members of the community in
connection with the Union's campaign. Thus, I find from
Hofstetter's testimony that he met a group from the com-
munity in the hospital's lobby on 29 October 1981. On
that occasion, the group supported the Union's organiz-
ing campaign and protested the retention of Skoler,
Abbott & Hayes. Hofstetter did not warn the group that
they were trespassing. Nor did he apprise them of any
no-access rule or policy limiting nonemployee visits to
the hospital.
I disagree with the Respondent that the record shows
that the group that confronted Rieseberg on 23 Novem-
ber 1981 was disruptive. There was no showing that the
group went into patient care areas. Instead, I find that
off-duty employee Simone Murray, in an effort to pre-
vent any disturbance in the patient care area closest to
the confrontation with Rieseberg, closed the double fire
doors separating the patient care area from the confron-
tation.
Rieseberg's testimony that he "considered [the group's]
actions disorderly" and that the incident caused a dis-
turbance that would impose "a significant impact on pa-
tient care" was not persuasive. His testimony was not ac-
companied by any showing that such an impact actually
occurred. Further, the locus of the confrontation was in
front of Rieseberg's office, which is across the corridor
from the coffeeshop. The pharmacy, the medical records
room, and some offices open into the same corridor. The
nearest patient care area was 20-25 feet away and shield-
ed by the double fire doors, which Simone Murray had
closed.
There was no showing that the confrontation dis-
turbed patient care or other hospital operations. Riese-
berg conceded that he received no report showing that
the group of employees and visitors had disturbed patient
care. He admitted that the medical records room usually
closed at 5 p.m., and that he did not notice whether the
office was open when the confrontation occurred about
5:15 p.m. Absent from Rieseberg's testimony was any as-
sertion that he observed disruption of the Respondent's
operations due to the group's presence or the confronta-
tion. Instead, he offered the opinion that the group by its
size and conduct "could certainly cause a potential of
some negative situation." Although Rieseberg, Hofstet-
ter, Springfield's Police Chief Herdt, and Lieutenant
Chadbourne testified in substance that the group was
noisy, there was no showing that the noise reached any
patient care area, or that it impaired the Respondent's
operations.
Finally, when asked to leave the hospital, neither
Sanders nor the group created any disturbance. Sanders
and Pudlin departed peaceably on Rieseberg's request.75
45 Rieseberg and Hofstetter testified that Sanders did not leave until
after the police had arrived However, Lieutenant Chadbourne, a more
candid witness, testified that he did not see Sanders at the hospital when
he arrived His testimony corroborated the credited testimony of Simone
Murray, Lori Barrel), Barbara Davis, and Sanders, who all agreed that
Sanders had departed before the arrival of the police. In general, Murray,
Darrell , Davis, and Sanders impressed me as more candid witnesses than
was either Rieseberg or Hofstetter regarding the incident of 23 Novem-
ber 1981
SPRINGFIELD HOSPITAL 683
The group left without incident when Lieutenant Chad-
bourne of the Springfield police department asked them-
to disperse . As there was no showing that the group of
off-duty employees and nonemployees that Barrell joined
disrupted patient care , disturbed patients, endangered
their health and safety , or otherwise interfered with the
hospital 's operations, I find that Barrell 's conduct was
entitled to the Act's protection . Masonic & Eastern Star
Home, 206 NLRB 789, 791 (1973).
As found above , Barrell had been employed by the
Respondent as a licensed practical nurse for over 4 years
when she resumed her education to become a registered
nurse . In August 1981 she requested and received from
the Respondent a change of schedule from full-time to
part-time employment . In her letter of 7 August 1981
granting Barrell 's request, Director of Nursing Ruth
Lawrence evidenced high regard for Barrell by suggest-
ing that she arrange for a regular work schedule "to
work in with [her] class time" and by expressing "best
wishes for success in pursuing [her] degree."
However, Ruth Lawrence's benevolence changed
quickly to hostility on the evening of 23 November 1981
after she observed Barrell in the company of the off-duty
employees and nonemployees near Rieseberg 's office.
Barrell then appeared to be supporting the two petitions
and the protest against Kathy Dykeman's treatment at
the Respondent 's hands . That same evening, after sharply
rebuking Barrell for participating in the confrontation
with Rieseberg, Lawrence removed her , without prior
warning, from the work schedule for the remainder of
the week, which resulted in Barrell's loss of 4 days' em-
ployment.
The timing of Barrell 's removal from the schedule so
soon after Lawrence had expressed hostility toward Bar-
rell strongly suggested that Lawrence was punishing
Barrell because of her union and protected concerted ac-
tivity. "It stretches credulity too far to believe that there
was only a coincidental connection between" Lawrence's
identification of Barrell with the group confronting Ad-
ministrator Rieseberg early on the evening of 23 Novem-
ber 1981 and Lawrence 's abrupt removal of Barrell from
the work schedule later that same evening. Angwell Cur-
tain Ca v. NLRB, 192 F .2d 899 , 903 (7th Cir. 1951).
Accord : Jacobo Marti & Sons, 264 NLRB 30, 34 (1982).
Less than 3 weeks later , Emery provided further evi-
dence of Lawrence's unlawful motive . On that occasion
Emery, referring to 23 November, admitted that Ruth
Lawrence "was very upset with [Barrell] for walking in
with [the group] with [her] uniform on," and suggested
that Lawrence had removed Barrell from the work
schedule for that reason.
Finally, Lawrence herself provided evidence of her
unlawful motive when at the end of January 1982 she ad-
mitted that anger caused her to remove Barrell from the
work schedule on 23 November 1981. In sum , there was
strong evidence to support the contention that Law-
rence, angered by Barrell's apparent support of the
group that confronted Rieseberg , reacted by removing
her from the work schedule for 23 , 25, 26, and 29 No-
vember 1981.
The Respondent sought to defend Barrell 's removal
from the work schedule by showing that it was done for
reasons unrelated to union or protected activity. Howev-
er, as the Respondent 's explanation did not withstand
scrutiny , I have rejected it.
At the outset, the Respondent's reasons were rendered
suspect because of their inconsistency , A. J. Krajewski
Mfg. Co. v. NLRB, 413 F.2d 673, 676 (1st Cir. 1969);
Russ Togs, Inc., 253 NLRB 767, fn. 2 (1980). Thus, on 23
November Ruth Lawrence told Barrell orally and in
writing that she was removed from the schedule because
the hospital was adequately staffed without her. Before
me, Ruth Lawrence testified that she reduced Barrell's
hours because of a low patient census and because she
had "taken two supper hours." and for being away from
her station . In its brief (R. Br. 87), the Respondent aban-
doned two of Ruth Lawrence's claimed reasons when it
asserted : "Obviously, Barrell was disciplined solely be-
cause of her repeated failure to be at her work station in
the Emergency Room while she was supposed to be
working ." Analysis of the asserted reasons for Barrell's
removal from the Respondent 's work schedule for 4 days
reveals their lack of substance.
The first proffered ground for removing Barrell from
the work schedule was unsubstantiated . The Respondent
presented no records or other evidence that might have
established the claimed reduction in patient population
during the period from 24 November through 29 No-
vember 1981 when Barrell had been scheduled to work
at the hospital.
Further doubt is cast on the claim of low patient
census by the credited testimony of nurse Dianne Allen,
which showed that after removing Barrell from the
schedule Lawrence approached Allen about working
during the Thanksgiving period on the second shift, the
very shift for which Barrell had been scheduled.76
Lawrence's testimony also suggested that the claim of
low patient census was an afterthought hastily devised to
legitimize her treatment of Lori Barrell . Thus, when
asked to explain the content of her written explanation to
Barrell, she testified first that she "didn 't have any
reason" and later that she had not intended to give Bar-
rell any reason at all. If in fact there had been a low pa-
tient census on 23 November, or if Lawrence was ex-
pecting a low census , it seems reasonable to expect that
she would have so stated in her note to Barrell . That she
neglected to do so suggested that she was not aware of a
low census or of the probability of a low census during
the last week of November 1981.
The Respondent showed that prior to 23 November
1981 it had removed one employee from its work sched-
ule because of a low patient census, and then only on the
employee's request . Lawrence, who has been the Re-
spondent's director of nursing since 1 January 1977,
Te Ruth Lawrence admitted that she spoke to Allen but only to inquire
if she "was going to be in town on Tuesday evening ." However, Dianne
Allen impressed me as being a careful witness who was sincerely trying
to present her full recollection . I have previously provided my general
appraisal of Lawrence's credibility . In comparing her demeanor with
Allen's, Lawrence 's evasiveness and her somewhat cavalier attitude while
testifying about the circumstances surrounding Lori Barrell's loss of 4
days' work cast serious doubt on Lawrence 's reliability . I have therefore
credited Allen's version of Lawrence's remarks to her about additional
working hours.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not remember having ever removed an employee
from the work schedule herself prior to 23 November
1981. Thus, assuming that the hospital was experiencing
a low patient census between 23 and 30 November 1981,
Barrell 's involuntary removal from the work schedule
during that period remained an unexplained departure
from the Respondent's usual practice of retaining em-
ployees on the work schedule even when the hospital's
patient population was low. Far from assisting the Re-
spondent's defense, this circumstance suggests that Law-
rence singled Barrell out for reprisal.
Turning to the second reason, I find again that the Re-
spondent has not satisfactorily explained why Ruth Law-
rence, either during her conversation with Barrell on the
night of 23 November 1981 or later that evening in wnt-
ing, did not complain to Barrell about taking a 1-hour
supper break.
In any event, there was no substance to Lawrence's
complaint that Barrell took a 1-hour supper break. I have
found that Barrell did not extend her supper break
beyond the 30 minutes that the Respondent allowed.
Aside from this 30-minute break and a short visit to a pa-
tient in the pediatrics department, there was no showing
that Barrell had absented herself from the emergency de-
partment during her shift on 23 November 1981.
Having considered and rejected the Respondent's de-
fense, I find that a preponderance of the evidence, on the
record as a whole, supported the allegations that Lori
Barrell suffered a loss of 4 days' employment because she
had taken part in protected and union activity on 23 No-
vember 1981. I further find, therefore, that by imposing
that reprisal on Barrell, the Respondent violated Section
8(a)(3) and (1) of the Act. See NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
2. Thomas Grant
a. Facts"
At the time of the hearing in this matter, Thomas
Grant had been in the Respondent's employ approxi-
mately 9 years. During the first 2 years of his employ-
ment at the hospital, Grant was a certified laboratory as-
sistant . During the remaining 7 years, his official classifi-
cation was that of medical laboratory technician. How-
ever, throughout his employment he has regularly en-
gaged in drawing blood from patients.
Grant draws blood from patients 10 to 30 times per
day. Prior to 13 August 1982 the Respondent had re-
ceived no complaints from patients regarding the manner
in which Grant performed this procedure, which is
known as venipuncture.
On 13 August 1982 the Respondent received a letter of
complaint from a patient regarding a blood clot that the
patient attributed to "Mr. Grant and other related hospi-
tal staff." According to a memorandum in Grant's per-
sonnel file, the patient complained that the hematoma or
blood clot that she suffered on her arm "was directly at-
tributable to a 'lack of professionalism."' Grant' s immedi-
ate supervisor , Laboratory Department Supervisor Mark
7' The essential facts concerning the alleged discrimination against
Grant are undisputed
S. Peniuk, received the complaint and in the same memo-
randum reported that he had conferred with Grant on 23
August 1982.
Peniuk's memorandum also contained the following
summary of his conversation with Grant:
Mr. Grant assured me that although he could not
recall this particular patient, he had never treated
any patient in an unprofessional manner. He also as-
sured me that his approach in dealing with patients
was in fact highly professional and that he had re-
ceived compliments about his venipuncture tech-
nique from patients in the past. I indicated to Tom
that I had performed a follow-up investigation and
that there was no clearly established proof of un-
professionalism, since hematomas were not an un-
common occurrence in venipuncture patients. How-
ever, at this time, I did make the following recom-
mendations:
1. Tom should continue to maintain his profes-
sional approach in dealing with patients to include
proper attire of lab coat and name pin.
2. Patients should be clearly instructed to apply
pressure to the site of venipuncture for a minimum
of five minutes after the technician is through and
the patients should understand this.
In summary, I feel the nature of patient's com-
plaint is minor, but that it serves as a reminder to
any laboratorian that professionalism must be con-
stantly maintained to preserve the medical-legal in-
tegrity of both the employee and the hospital.
On reading the memorandum, Grant protested. Peniuk
insisted that even though he might agree that Grant had
not engaged in unprofessional conduct, as alleged in the
letter, he intended to file the memorandum in Grant's
personnel file. Peniuk also refused to add a letter express-
ing agreement with Grant in Grant's personnel file. Fol-
lowing this conversation, Peniuk placed the memoran-
dum in Grant's personnel file.
Grant actively supported the Union's organizing cam-
paign. He engaged in solicitation in the hospital's parking
lot during shift changes, attended meetings, wore a union
button, and occasionally distributed union literature. Fur-
ther, Grant was a member of the Union's organizing
committee and attended union strategy meetings regard-
ing the conduct of the preelection campaign. Grant per-
sisted in his union activity until March 1983.
During the Union's organizing campaign, Grant re-
vealed his prounion sentiment to Supervisor Peniuk.
Indeed, Peniuk testified that he knew that Grant was a
union supporter, and that he had testified in the unfair
labor practice proceedings in these cases, which had con-
cluded on 23 March 1983. By 12 June 1983 Peniuk was
aware of Grant's prounion sentiment, his union activity,
and his participation as a witness in the unfair labor prac-
tice proceedings before me.
On 29 June 1983 Supervisor Peniuk, in the presence of
Personnel Director Sue Jacques, gave Thomas Grant a
copy of a patient questionnaire, an employee warning
SPRINGFIELD HOSPITAL 685
report, and a formal warning report . The patient ques-
tionnaire contained the following complaint:
One gentleman from lab simply came into room
said "Blood" was very abrupt , never looked at me,
never explained his procedure, just did what he had
[to] do. After seeing the friendly manner everyone
else [sic] , I was surprised.
The employee warning report reflected that the date
of the violation was the week of 12 June 1983, and that
the time of his alleged improper conduct was "7 a.m.
blood drawing."
The formal warning report, dated 28 June 1983, was
from Peniuk, and was to be placed in Grant's personnel
file. After calling attention to the attached patient com-
plaint, the formal warning report contained the follow-
ing:
The first complaint is a letter to Mr. Eric Riese-
berg , Executive Vice-President , received on August
8, 1982 . The follow up of this incident and its out-
come was documented as a verbal warning in com-
pliance with Personnel Policy #21, Group III Vio-
lations of Hospital Ethical Behavior.
The second complaint comes in the form of a pa-
tient questionnaire opinion of services at Springfield
Hospital and was submitted during the week of
June 12, 1983 . Although Mr. Grant is not specifical-
ly named, a follow up investigation conducted with
the patient included a physical description of Mr.
Grant.
Although no formal warning was issued follow-
ing the first complaint , specific verbal recommenda-
tions concerning professional behavior were made
to Tom. After the receipt of the second complaint
of the same nature , it is appropriate to issue a
formal written reprimand concerning Tom's profes-
sional behavior based on the issues at hand and in
conjunction with Personnel Policy #21.
In summary, I am requesting that immediate im-
provement be shown in the area relating to profes-
sional behavior, specifically interaction with patients
while performing venipuncture . Should subsequent
incidence [sic] of this nature occur or be supple-
mented by additional Personnel Policy #21 Group
III violations , a second written warning shall be
issued.
Before pursuing the followup investigation , Peniuk
conferred with his supervisor , Director of Ancillary
Services David LaPlante , about the questionnaire.
Peniuk suggested the need to take further action on the
complaint in view of the August 1982 complaint against
Grant . LaPlante approved Peniuk 's plan to contact the
complaining patient.
Peniuk telephoned the complaining patient, Rosemary
Scorse, seeking more details of her complaint . She de-
scribed the person who performed the offending blood
test as "a male technician , rather tall with dark hair,
glasses and possibly a mustache." She also recalled that
the technician did not have a name tag and did not iden-
tify himself. Scorse also complained that he neglected to
explain the venipuncture procedure. Instead , she report-
ed, he essentially "yanked" her arm down inserted a
needle into it, completed his task and departed . Scorse
described the employees conduct as "abrupt and rude."
From Scorse's description , Peniuk concluded that the
offending individual was Thomas Grant . Peniuk noted
that "there was only one male blood drawer within the
Laboratory Department , that it was Tom." Peniuk con-
cluded also that a respiratory therapist who could also
draw blood from patients was not involved . Scorse had
not had any respiratory therapy during her stay at the
hospital . This fact, together with her physical descrip-
tion , persuaded Peniuk that the offending individual was
Grant.
Peniuk was also satisfied from the evidence before him
that Grant had violated the Respondent's written proce-
dure, described as a protocol for venipuncture, which
became effective on 2 September 1981 . This protocol
was contained in a statement of hospital policy directed
to all laboratory technicians , which would have included
Thomas Grant . The protocol set forth in the Respond-
ent's statement of policy regarding "proper specimen col-
lection" was as follows:
B. Protocol on taking a Sample:
1. A technician should wash his hands whenever
possible before taking a blood sample.
2. The technician should introduce himself to the
patient.
3. The technician should confirm who that pa-
tient is both verbally and by looking at the wrist
band.
4. The technician should then indicate the pur-
pose of the visit in that he is going to take some
blood for some test ordered by (and then name the
attending physician).
5. After the sample had been procured, the tech-
nician should check the patient to be sure that he is
comfortable and all right.
On 28 June 1983 Peniuk prepared a formal warning
report for Thomas Grant . Before issuing the report,
Peniuk obtained LaPlante's approval.
On 29 June 1983 when Peniuk and Personnel Assistant
Susan Jacques confronted Grant with the questionnaire,
the formal warning report , and the employee warning
report , Peniuk permitted Grant to read the patient ques-
tionnaire . Grant's response was: "I never say blood or
whatever . . . . [Y]ou know I don't do this , you've
known me for you know for 10 years and I wouldn't do
this." However , Grant ultimately conceded that he did
not remember the incident.
When Grant suggested that someone else might have
mistreated the complaining patient , Peniuk asserted that
Grant matched the description that the patient had
given . At this, Grant responded : "I don't remember it
happening and, you know , I don 't talk that way and you
know I don't." Peniuk rejected Grant's request for a
confrontation with the accusing patient, on the ground
that it would violate "patient confidentiality." As he
handed the written warning to Grant , Peniuk explained
that in light of the 1982 complaint he was now issuing
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the written warning. Grant protested that he understood
from Peniuk's remarks in 1982 that the earlier complaint
"was nothing" Grant expressed surprise that Peniuk was
now calling the earlier memorandum "a verbal warning."
Peniuk insisted that the 1982 memorandum was a verbal
warning.
On 30 June 1983 Grant met with Supervisor Peniuk
and Doctor Charles Cunningham, the director of the
hospital's laboratory. On 1 July 1983 Grant met with
Cunningham, who told him that the complaint against
Grant was trivial, and questioned the discipline that
Peniuk had imposed. However, Cunningham did not in-
tervene.
Thereafter, Grant filed a request that the written
warning be taken from his personnel record. Grant
pointed out that the patient's complaint had not men-
tioned him by name, and that he had no recollection of
the incident described in the complaint, that in his esti-
mation he was "very proffesional [sic]" and his perform-
ance including patient contact was "excellent." Grant
pointed out that until August 1982 there had never been
any question of his professionalism. On 21 July 1983
Peter A. Hofstetter, the Respondent's acting administra-
tor, denied Grant's request for relief. In his letter, Hof-
stetter concurred in Peniuk's determination that Grant
was the lab technician referred to in Scorse's question-
naire and that a written warning was the appropriate dis-
ciplinary action.
Under the Respondent's disciplinary policy, which had
been in affect since 17 August 1981, both of Grant's
warnings were under "Group III Violations," which in-
cluded "Violations of Hospital ethics." The penalties for
violations of the Group III category listed in the Re-
spondent's policy were as follows:
1st Offense-Verbal warning
2nd Offense-Written warning with notation of
such action to be included in the employees' perma-
nent record.
3rd Offense-Second written warning with notation
of such action to be included in the employee's per-
manent record.
4th Offense-Termination of employment.
However, there was no showing that the Respondent
actively instructed Grant or any other technician in the
protocol's content. I find from Grant's testimony that
during his employment at the hospital he had never seen
any statement of the Respondent's policy regarding labo-
ratory procedures, including the taking of blood samples.
Grant conceded that he did not comply with part 2 or 4
of the five-step procedure. As a matter of practice, he
does not introduce himself to the patient . Nor does he
explain to the patient the purpose for the venipuncture
and the name of the physician on whose request he is
taking the sample. However, Peniuk did not mention the
protocol either in his memorandum of 28 June 1983 or in
the employee warning report that accompanied it. There
was no showing that he ever mentioned the protocol in
his remarks to Grant.
b. Analysis and conclusions
The complaint alleged that the Respondent violated
Section 8(a)(4), (3), and (1) of the Act by issuing a writ-
ten warning and a verbal warning to employee Thomas
Grant on 29 June 1983 because of his union activity and
because he testified in the hearing before me in Cases 1-
CA-19,299, 1-CA-19,635, 1-RC-17475, and 1-RC-
17476. For the reasons given below, I agree with the Re-
spondent's contention that Section 10(b) of the Act bars
a finding that the verbal warning of 23 August 1982, was
a violation of the Act. I also agree with Respondent's
contention that the General Counsel has failed to estab-
lish that the written warning that the Respondent issued
on 29 June 1983 to Grant was motivated by either
Grant's union activity or his participation as a witness in
the unfair labor practice hearing before me.
Before discussing the parties ' contentions regarding the
alleged unlawful verbal warning, I turn my attention to
the Respondent's claim that Section 10(b) of the Act pre-
cluded me from finding that the warning violated the
Act. The 6-month statute of limitations contained in Sec-
tion 10(b)of the Act reads in pertinent part:
Provided . . . no complaint shall issue based upon
any unfair labor practice occurring more than six
months prior to the filing of the charge with the
Board and the service of a copy thereof upon the
person against whom such charge is made.
In Machinists Local 1424 v. NLRB, 362 U.S. 411, 422
(1960) the Court held "that a finding of violation which
is inescapably grounded on events predating the limita-
tions period is directly at odds with the purposes of the
Sec. 10(b) proviso." The Board has also held that the
10(b) proviso "does not begin to run until the injured
party has become aware of the Respondent's unlawful
action ." Allied Products Corp., 230 NLRB 858, 859
(1977).
I find that the Respondent issued a verbal warning to
Grant on 23 August 1982, rather than on 29 June 1983,
as alleged in the complaint in Case 1-CA-21193. The
tenor of Peniuk' s memorandum of 23 August 1982 was
that of a mild reprimand for Grant's possible mishandling
of a patient during a venipuncture procedure. Compari-
son of that memorandum with the formal warning report
that Peniuk issued to Grant on 29 June 1983 revealed
that both had the same disciplinary purpose. Both were
addressed to Grant's personnel file. Both set forth an as-
serted patient complaint, described Peniuk's determina-
tion as to Grant's involvement, and suggested corrective
action by Grant to avoid further patient complaint. Fi-
nally, the retention of the August 1982 memo in Grant's
file was without any apparent intent to ever remove it,
suggesting that the Respondent considered its contents to
be a matter of lasting concern.
The record leaves little doubt that Grant understood
that the August 1982 memorandum contained a rebuke
and a reminder that he must perform his duties, and par-
ticularly venipuncture, in a professional manner. Grant
challenged the memorandum's implication that he might
have mishandled a patient. He also attempted to per-
SPRINGFIELD HOSPITAL
suade Peniuk to withhold that document from his per-
sonnel file . When this attempt failed , Grant sought to
neutralize it by seeking a written repudiation from
Peniuk, which was to be placed in Grant's personnel file.
Again, Peniuk refused Grant's request. If Grant had any
lingering doubt as to the import of the August 1982
memorandum, Peniuk's refusal to withhold it from
Grant's personnel file or to repudiate it by a letter to the
same file should have made plain to Grant that it was a
form of discipline . In any event, Grant's response to the
memorandum strongly suggested that he understood that
it was disciplinary.
Having found that the memorandum of 23 August
1982 was a verbal warning on the date it was issued, I
have rejected the General Counsel's and the Union's po-
sition that it did not achieve that status until 29 June
1983. Because the initial charge in the instance case was
filed on 15 July 1983 and the verbal warning complaint
was issued to Grant on 23 August 1982, I fmd the 6-
month period of limitation contained in Section 10(b) of
the Act precludes me from finding that the issuance of
the warning was unlawful , as alleged in Case 1-CA-
21193.
The General Counsel and the Union contend that the
Respondent issued the formal warning report to Thomas
Grant on 29 June 1983 because of his union activity and
because he was a witness in the prior hearing on unfair
labor practice allegations and objections in Cases 1-CA-
19299, 1-CA-19635, 1-RC-17475 , and 1 -RC-17476,
which concluded on 23 March 1983 . The Respondent
urged that the General Counsel had failed to establish
that Thomas Grant suffered the alleged discrimination
and sought dismissal of these allegations . For the reasons
stated below I agree with the Respondent.
Simply stated , the General Counsel failed to establish
elements vital to a prima facie case . First, I find an insuf-
ficient basis for inferring that union animus played any
part in Peniuk 's decision to issue the written formal
warning to Thomas Grant. Beyond doubt, Peniuk and
LaPlante were aware of Grant's active support for the
Union 's organizing campaign and that he testified exten-
sively in the the unfair labor practice proceedings against
the Respondent, which had concluded in March 1983. I
further find that Peniuk and LaPlante were aware of
these activities at all times material to the issuance of the
written formal warning to Grant. I have also found that
LaPlante had threatened Grant with reprisals if the
Union's campaign succeeded and because he attended a
Board hearing . However , there is no showing that
Peniuk , who alone , made the appraisals of Grant's per-
formance and issued the written warning , threatened
Grant because of his union activity or because of his par-
ticipation in Board hearings.
It also appears that whatever union animus had existed
among the Respondent's management during the Union's
campaign and the earlier hearing had dissipated by June
1983. There was no showing that the Respondent en-
gaged in any unfair labor practices between 5 February
1982 and 29 June 1983, the date on which Peniuk issued
the formal warning to Grant. Further, in excess of 3
months had passed since the earlier hearing had closed
687
without any confrontation between Grant and his superi-
ors regarding his participation in that hearing.
Second , the record does not persuade me that the Re-
spondent resorted to a pretext or singled Grant out for
special treatment . Peniuk was careful to follow up
Scorse's written complaint by pressing her for more in-
formation regarding the identity of the offending techni-
cian . After Scorse had provided a physical description of
the person who drew blood from her, Peniuk reasonably
determined that the offending individual was Thomas
Grant . He noted that Scorse did not undergo respiratory
therapy , and, thus, it was unlikely that a respiratory ther-
apist was involved . Further, Peniuk knew that the labo-
ratory department employed only one male blood
drawer , Thomas Grant.78
The confrontation with Grant on 29 June 1983 left un-
disturbed Peniuk's conclusion that Grant was the individ-
ual Scorse had described in her complaint . When Peniuk
asserted that Grant matched the physical description that
Scorse had provided , Grant did not challenge it. Instead,
he responded that he did not remember the incident,
adding in substance that he would not say "blood" when
he was about to perform venipuncture . This response
was not likely to persuade Peniuk that he had erred in
concluding that Scorse was complaining about Grant,
and that there was no merit to her complaint . Grant's re-
sponse was less than a denial . Instead , his answer re-
vealed that he had no specific recollection of how he
had performed the venipuncture under discussion. I fmd
that Peniuk was justified in adhering to his view that
Grant had violated "Hospital ethics" as set forth under
"Group III Violations" in the Respondent 's statement of
disciplinary policy.
Finally , there was no showing that Peniuk , during the
16 months he was supervisor of the Respondent's labora-
tory department, was ever confronted with patient com-
plaints similar to those involving Thomas Grant . Indeed,
in Peniuk's view , Grant's treatment of Scorse "was the
worse experience" of Peniuk 's 16 months at the hospital.
There was no showing that Peniuk 's assessment was ex-
aggerated.
Peniuk's response in 1982 to the only other patient
complaint involving venipuncture by one of his subordi-
nates did not cast doubt on Peniuk's assessment of
Scorse's complaint about Grant . In the earlier incident,
Peniuk concluded that technician Lynn Estey had ad-
hered to the Respondent's protocol for drawing blood,
but had ignored the patient's suggestion as to which arm
to draw blood from . In his followup investigation,
Peniuk learned that the complaining patient gave the
suggestion after Estey had already inserted the needle
into the other arm. As a result of Estey 's action , the pa-
tient experienced pain , which he reported to the hospital.
In assessing Estey's conduct , Peniuk determined, that dis-
78 The Union contended that Pemuk's failure to afford Grant an op-
portunity to defend himself against Scorse 's accusations was a deviation
from his practice of giving employees a chance to defend themselves
against accusations , and that such a deviation suggested an unlawful
motive However, even if Peniuk treated Grant differently in this request,
I find that the evidence did not establish that Peniuk 's motive was unlaw-
ful. Peniuk was convinced by the patient 's remarks that Grant was guilty
of the alleged infraction and that further inquiry was unnecessary.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciplinary action was not warranted by her failure to
accept the patients advice after the venipuncture had al-
ready begun . In reaching this conclusion , Peniuk took
into account that Estey had otherwise performed the
venipuncture in accordance with the Respondent's re-
quirements . As the circumstances in Estey 's case were
materially different from those arising from Scorse's
complaint, it offered no ground for finding that Peniuk
imposed disparate punishment on Grant.
In sum, I find that the General Counsel has not shown
by a preponderance of the evidence that on 29 June 1983
the Respondent imposed a formal warning report on
Thomas Grant either because of his union activity or be-
cause he testified in the Board proceedings in Cases 1-
CA-19299, 1-CA-19635, 1-RC-17475 , and 1 -RC-17476.
I shall therefore recommend that the complaint in Case
1-CA-21193 be dismissed in its entirety.
IV. THE OBJECTIONS IN CASES 1 -RC-17475 AND 1-
RC-17476
A. Petitioner 's Objections
The Regional Director 's supplemental decision recited
the following 16 objections that the Petitioner, New
England Health Care Employees Union , District 1199,
National Union of Hospital and Health Care Employees,
Retail , Wholesale & Department Store Union, AFL-
CIO, had timely filed following the elections in Cases 1-
RC-17475 and 1-RC-17476:
1. Promulgation of an unlawful written no solici-
tation and distribution rule and discriminatory appli-
cation of the rule;
2. Causing the arrest on February 1, 1982 of em-
ployees who supported the union . The employees
were lawfully present in the Hospital cafeteria at
the time of the arrests;
3. Causing armed police to be present in the Hos-
pital during the period immediately prior to, and in-
cluding , the elections . The presence of the police
immediately following the arrests referred to in
paragraph two heightened the atmosphere of coer-
cion and intimidation of employees following the
arrests;
4. Threatening the job security of employees who
supported the union;
5. Promising employees benefits and assistance
which infringed on the employees ' freedom of
choice in the representation elections;
6. Granting new benefits to employees;
7. Untimely filing of the Excelsior List;
8. Unlawful coercion , intimidation , assaults and
surveillance of union activities by private security
guards hired by the Hospital which interfered with,
restrained and coerced employees in the exercise of
their rights;
9. Systematic interrogation by Hospital supervi-
sors of employees about union activities in "one-on-
one" meetings which infringed on the employees'
freedom of choice in the representation elections;
said meetings were initiated by supervisors under
the direction of the Hospital 's management consult-
ants, Modern Management Methods;
10. Verbal polling of employees concerning union
representation by Hospital supervisors at the direc-
tion of the Hospital 's management consultants,
Modern Management Methods;
11. Distribution of written campaign literature
which contained material misrepresentations , implic-
it promises of benefits and threats of loss of existing
benefits if the union won the elections , and other-
wise interfered with the employees' protected
rights;
12. Coercion and intimidation directed at employ-
ees in the bargaining unit which infringed on the
employees ' freedom of choice in the representation
elections;
13. Unlawful "captive audience" speeches by the
Hospital administrator which interfered with the
employees ' free choice of a bargaining representa-
tive;
14. By unlawful threats , promises or coercion in-
fluenced the Chief Central Sterile Supply Techni-
cian , Elizabeth Larabee against voting in the elec-
tion despite the fact that the parties stipulated on
the record at the unit hearing that Ms. Larabee
could vote subject to challenge;
15. Employer solicitation of employees to oppose
the union and to dissuade other employees from
supporting unionization;
16. Other acts which interfered with the employ-
ees' free choice of bargaining representative.
On 18 June 1982 the Petitioner withdrew Objections 7,
10, and 15 with the Regional Director's approval. The
Regional Director determined that Objections 1 through
6, 8, 9, 12 , 13, and 16 involved conduct "identical to or
similar to that alleged as unfair labor practices in Case 1-
CA-19635 and consolidated them for hearing in the pro-
ceedings before me . I have found above that the Re-
spondent violated Section 8(a)(1) of the Act in several
instances as alleged in the complaint in Case 1-CA-
19635. The conduct I found to be unfair labor practices
were included in the objections consolidated for hearing
before me. I find that those unfair labor practices that
occurred during the critical period, between 16 October
1981, when the petition in Case 1-RC-17476 was filed,
and 4 February 1982, the date of the election, sufficiently
interfered with the employees' freedom to select a bar-
gaining representative to require setting aside the elec-
tion in Case 1-RC-17476. Leas & McVitty, Inc., 155
NLRB 389, 390-391 (1965); Dal-Tex Optical Co., 137
NLRB 1782, 1786-1787 (1962).
In these circumstances , I find it unnecessary to resolve
the issues raised by the Petitioner's Objections 11 and 14.
B. The Employer 's Objections
The Employer, Springfield Hospital , filed timely ob-
jections to the conduct of the election and conduct af-
fecting the results of the election in Case 1 -RC-17475.
The Employer alleged that the Petitioner , by the follow-
SPRINGFIELD HOSPITAL 689
ing conduct, impaired the employees' freedom of choice
in the election:
1. Engaging in a pattern of gross and material
misrepresentations;
2. Impliedly , or directly , threatening employees
because of their pro -employer sentiments;
3. Threatening an individual with bodily harm in
the presence of employees;
4. Engaging in unlawful picketing and other un-
lawful demonstrations;
5. Interfering with, restraining and coercing em-
ployees because of their anti -union sympathies;
6. Creating an atmosphere of fear and lawlessness
prior to the election;
7. The National Labor Relations Board agent
who conducted the election allowed union propa-
ganda to be worn by union observers during the
polling periods and did not seek to minimize elec-
tioneering by the union observers during said poll-
ing periods.
On 8 June 1982 the Employer , with the Regional Di-
rector's approval , withdrew its Objection 7. For the rea-
sons stated below , I find no merit in the Employer's re-
maining six objections.
The Employer contended in its first objection that the
election in Case 1 -RC-17475 should be set aside on the
ground that the Union , throughout its campaign, misrep-
resented Skoler, Abbott & Hayes and Modern Manage-
ment Methods, Inc. as "known violators of law" and ac-
cused the Employer of intentionally violating the Act. In
support of this contention , it referred to copies of union
propaganda and the tape of a radio interview with Union
Organizer Sanders on 2 February 1982 , 2 days before the
election . In the tape , Sanders accused the Employer of
retaining the law firm and Modern Management Meth-
ods, Inc., "to brutilize , to attack their employees in the
organizing drive" and to beat down employees . He went
on to liken the Employer's treatment of its employees to
the then current repression of Polish workers.
In Midland National Life Insurance Co., 263 NLRB
127, 133 ( 1982), the Board reembraced the policy articu-
lated earlier in Shopping Kart Food Market, 228 NLRB
1311 (1977), that it will not set aside representation elec-
tions because of misleading campaign statements absent
the use of forged documents or the alteration of an offi-
cial Board document in a manner suggesting that the
Board favors one of the parties . Thus, assuming that the
Union 's election propaganda amounted to misrepresenta-
tions as the Employer urges, under the Board's policy in
Midland, it did not provide ground for setting the elec-
tion aside . I shall therefore , overrule the Employer's first
objection.
The Employer presented the testimony of employees
Gail Bundy, Doris Lawrence, and Earl Joyce in support
of the contention in its second objection that Petitioner
threatened employees. I find their testimony unpersua-
sive.
Bundy initially testified that union organizer Richard
Sanders visited her at home in early January 1982 and
asked her to join the Union and that she refused. When
counsel pressed her to recall Sanders ' response, she an-
swered : "No, I don't remember everything now." Under
further questioning, she remembered that Sanders
warned that if she did not join the Union , she might lose
her dental plan at the hospital . She denied that Sanders
had threatened to "make it rough" on her if she persisted
in refusing to change her mind . It was only after she had
an opportunity to read her pretrial affidavit that she testi-
fied that Sanders threatened to "make it rough on us" if
she did not join the Union . Under cross-examination,
Bundy testified that 2 days after she provided the Em-
ployer's counsel with her affidavit she requested that
they destroy it. Bundy admitted that she gave the affida-
vit at the urging of Supervisor Richard Haenggi. She
also admitted that her recollection of Sanders ' remarks
might have included her husband 's report to her of a
subsequent conversation he had with Sanders , at which
she was not present.
Bundy 's failure to recall the threat that the Employer
attributed to Sanders together with her desire to destroy
the affidavit she gave in response to Supervisor Haeng-
gi's pressure suggested that she never heard Sanders
utter such a threat . Her concession that she might have
combined two conversations in her affidavit provided a
further ground for my determination that neither her tes-
timony before me nor her affidavit were reliable sources.
Contrary to Gail Bundy's testimony , I fmd from the
straightforward and consistent testimony of Richard
Sanders and Simone Murray that he did not threaten her
with loss of benefits if she did not support the Union. I
also find from their testimony that Sanders did not
threaten that he or the Union would "make it rough" on
Gail Bundy, or words to that effect , if she persisted in
her refusal to support the Union.
Cafeteria employee Doris Lawrence has worked at the
hospital since 1980 . She testified that throughout the
Union's campaign prounion employees Judith Bryant,
Simone Murray , and Patricia Grant told her, in sub-
stance, that if she supported the Union and it won the
election, her job would be guaranteed. She also testified
that these same employees warned that if she did not
support the Union and it won the election , she would
lose her job . However, I find from her testimony that
prior to the election she sought and obtained assurance
from her supervisors , Janice Waterman and Food Serv-
ice Manager Mike Harris, that her job would be secure
regardless of the outcome of the representation elections
and that it was the employer who would decide whether
she kept her job and not the Union.
The burden of showing sufficient reason for setting
aside the election rested on the Employer. NLRB v.
Mattison Machine Works, 365 U.S. 123 , 124 (1961). Thus,
as there was no showing that prounion employees
Bryant, Murray, and Grant were the Union 's agents, it
was incumbent on the Employer to show that their
warnings to Lawrence were so disruptive that they cre-
ated an atmosphere of fear and reprisal such as to render
free expression of choice in the election impossible. Sub-
Zero Freezer Co., 265 NLRB 1521 (1982). I fmd the Em-
ployer failed to sustain this burden.
The asserted threats to Lawrence's job security were
obviously beyond the Union's power , as Lawrence
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
learned from discussions with her supervisors. After such
assurances, I find it unlikely that employee Lawrence or
any other employee would continue to fear that the
Union could bring about her termination if she did not
support it. I find, therefore, that the threats Doris Law-
rence attributed to the prounion employees were not of
such character as to create an atmosphere of fear and re-
prisal.
I did not credit Doris Lawrence's testimony that de-
spite assurances from her supervisors she continued to
fear the threats made by her prounion colleagues . First,
when asked if her supervisors reassured her, she in effect
answered yes, but then became evasive when asked if her
feeling of security extended to the day of the election.
She insisted that she now felt reassured. I also noted her
shifting testimony when cross-examined about the lapse
of time between her conversations with her supervisors
and the election. These factors, together with her tenta-
tive demeanor as she reacted to cross-examination, per-
suaded me that she was not candid about the impact of
her supervisors ' reassurances.
In any event, under Board policy, Lawrence's subjec-
tive testimony even if credited would not provide
grounds for setting aside the election. Litton Industrial
Products, 221 NLRB 700, 708 (1975). In sum, Lawrence's
testimony did not provide grounds for setting the elec-
tion aside.
The third incident included in the Employer's second
objection involved Earl Joyce, the Employer' s assistant
planning engineer and electrician. On 2 or 3 February
1982 Joyce, who was a voting unit employee, drove
through a group of 15 to 20 people at the hospital's back
entrance as he was arriving for work. As he entered the
hospital's premises , one of the group stepped toward the
lane in which Joyce was moving. Joyce adjusted his
course and proceeded through the entrance without any
further difficulty.
Later that same day, Joyce met prounion employee
Thomas Grant, who asked him: "Do you know a fellow
by the name of Dave Mercier?" When Joyce said that he
did not know him, Grant continued: "Well, he claims
that you tried to run him over this morning as you were
entering work and would like me to give you a message
if I did see you." When Joyce asked for the message,
Grant asserted that Mercier wanted him to tell Joyce
that if Mercier saw him he intended to beat him severe-
ly. Joyce denied the accusation, adding that he expected
people to refrain from blocking his entrance to the hospi-
tal.
This exchange occurred in the presence of employees
Donna Grant and Betty King. Joyce also mentioned the
threat to his wife, who was an employee in the Employ-
er's laboratory. Joyce did not know Mercier, who was
not a hospital employee.' e
The threat Grant conveyed emanated from a person
who was not shown to be a union agent . Thus, Grant's
conduct would be grounds for setting aside a Board-held
election only if it created an atmosphere of fear and re-
prisal such as would render free expression of choice im-
possible. Sub-Zero Freezer Co., supra.
79 1 base my findings of fact on Joyce's testimony
Here, the threat came in the context of a complaint
that Joyce had deliberately attempted to run over Mer-
cier with his automobile . Employees fearing the threat or
hearing about it were likely to perceive that Mercier's
threat did not concern itself with how Joyce would vote
or how he would otherwise express his sentiment toward
the Union. Thus, I find that the threat that Grant con-
veyed on Mercier's behalf was not likely to have any
effect on the election 's atmosphere . I find, therefore, that
the threat of physical punishment attributed to Mercier
by Grant did not afford grounds for setting the election
aside.
The Employer's contention in its third objection, that
the Petitioner threatened individuals with bodily harm,
rested on the testimony of Supervisor Ruth Celotto,
guard Harry Waidler, and Administrator Eric Rieseberg.
On 20 November 1981 Chief Physical Therapist Ruth
Celotto was holding a staff meeting at the hospital.
Present in the meeting were three registered therapists,
Colleen Perron, Carla Kelly, and Shelley Burnie, and the
department secretary, Sheila Nemkovich. During the
meeting , "a group of people and their children," which
Celotto estimated to be from 6 to 10, plus children, in-
cluding 1 or 2 nonemployees and employees June Bon-
figlio, Mark Christ, Ora Turner, Barbara Davis, Judy
Bryant, and other unidentified persons, attempted to
enter the meeting . When Celotto asked that they leave,
they pressed further into the room. When Celotto tried
to push them out by closing the door to the room, an
unidentified person said that they wanted to discuss em-
ployee Kathy Dykeman. As Celotto finally closed the
door on them, "somebody said we're going to get you,
Ruth."
There was no showing that any union agent was
present when Ruth Celotto heard the threat. Further,
Celotto 's testimony leaves open the possibility that the
warning originated from someone other than an employ-
ee. The context in which the remark was made strongly
suggested that Celotto's refusal to discuss Kathy Dyke-
man with the group and her application of physical pres-
sure to bar the group from the staff meeting provoked
the threat. Thus, employees hearing the threat were not
likely to infer that it had anything to do with the elec-
tion that was to take place 75 days later . I find, there-
fore, that the threat to Celotto, either by itself or when
viewed with the other conduct that I have considered
under the Employer's objections, could not have de-
stroyed the atmosphere necessary to the employees' exer-
cise of a free choice in the election.
Security guard Waidler testified that in December
1981 he had a confrontation with the Union's organizer,
Richard Sanders, in the Respondent's lower parking lot.
Waidler was standing 16 to 20 feet away from Sanders,
who was accompanied by two men and two women, one
of whom was employee Patricia Grant. The two women,
on Sanders' instructions, asked Waidler to leave the lot.
Waidler rejected their demand and told them to move
on. The two women, who were in uniform, moved
toward the hospital. Sanders turned to Waidler and told
him "move, we can make you move, there's three of us
now." Waidler, who was armed with a gas known as
SPRINGFIELD HOSPITAL
Mace, asked Sanders if he knew what it was . Sanders did
not answer , but turned away without further comment.
According to Waidler , "various husbands and some
U.E. people" challenged him to fight with them . Waidler
ignored their challenges and no physical contacts oc-
curred between Waidler and the challengers. Waidler re-
ceived such threats from an individual identified as
"Mercier," who challenged Waidler "to go to the dukes"
in early January 1982.
The preelection conduct that Waidler reported did not
create a general atmosphere of fear and coercion so as to
render a free election impossible . There was no showing
that either Sanders' warning or any of the challenges di-
rected at Waidler related to either the election or em-
ployee sentiment for or against the Union . Instead, they
reflected hostility that Sanders , employees , and their hus-
bands felt toward Waidler in his role as a security guard.
In these circumstances, I find that Sanders' warning and
the challenges by others did not impair the atmosphere
required to permit the Respondent 's employees to enjoy
an untrammeled choice in the election.
According to guard Waidler and Personnel Assistant
Susan L . Jacques, on 2 February 1982 approximately 10
nonemployees came to the hospital 's lobby on the way to
Administrator Rieseberg's office . Waidler intercepted
them and barred them from proceeding from the lobby.
Jacques observed the group , three of whom she knew to
be members of the United Electrical Workers (UE). She
came to the lobby where she spoke to John Case, one of
the UE members. Case, acting as spokesman for the
group , said they believed the arrests of the Respondent's
employees on 1 February had been "totally unfair."
At the end of the discussion , Case made "a bodily
threat" to Rieseberg . However, Jacques could not re-
member what Case had said . The police arrived as Case
and the group left the hospital . Jacques detected the
odor of alcohol emanating from one of the men in the
group who, according to Jacques , was "[l]oud , abrasive."
The Employer 's contention that Case 's threat required
that the election in Case 1 -RC-17475 be set aside is
wholly without merit . The "bodily threat" arose in a dis-
cussion of the previous day's arrests of four hospital em-
ployees in the cafeteria . There was no reference to the
election or to the Petitioner in Case's remarks to either
Waidler or Jacques . There was no threat to listening em-
ployees of physical violence if they did not vote for the
Petitioner . In these circumstances , I conclude that Case's
conduct did not tend to impair the atmosphere necessary
to the employees ' exercise of a free choice at the elec-
tions held on 4 February 1982 . Therefore, I shall recom-
mend that the third objection be overruled.
In support of its fourth objection the Employer at-
tempted to show that the Union caused "an atmosphere
of fear, confusion , and reprisal which pervaded the
whole [organizing] campaign by engaging in unlawful
demonstrations." (R. Br. 122 .) According to the Employ-
er, the Union's leading role in these demonstrations
"could have no other effect than to inhibit employees
from opposing the Union and from engaging in other
Section 7 rights to refrain from joining or assisting the
union organizing attempt ." (R. Br. 122.) In particular,
the Employer complained about an incident that oc-
691
curred on 13 October 1981 and a second incident that
occurred on an undisclosed date in October 1981. The
Employer also called attention to incidents that oc-
curred on 30 October and 20 and 23 November 1981 and
30 and 31 January and 1 and 2 February 1982.
In considering these incidents , I have been guided by
two principles . The first is the Board 's holding in Ideal
Electric & Mfg. Co., 134 NLRB 1275, 1278 (1961):
[T]he date of filing of the petition . . . should be
the cutoff time in considering alleged objectionable
conduct in contested cases. From that time . . . we
believe that conduct thereafter which tends to pre-
vent a free election should appropriately be consid-
ered as a postelection objection.
The second principle, which I have previously stated, is
that the party challenging an election has the burden of
showing sufficient reasons for setting aside its results.
NLRB v. Mattison Machine Works, 365 U.S. at 125.
Applying the principle of Ideal Electric, supra, to the
two earliest incidents to which the Employer has re-
ferred , I find that I am precluded from considering their
merits. The first incident occurred on 13 October 1981, 3
days prior to the filing of the petition in Case 1-RC-
17475. Therefore, under Ideal Electric it cannot be
grounds for setting aside the election in this case.
The Employer had the burden of showing that the
second incident occurred on or after 16 October 1981.
As it did not make such a showing, I shall not consider
the effect of that incident on the election.
Turning to the remaining incidents referred to by the
Employer in its fourth objection , I find that the conduct
complained of did not interfere with the employees' free-
dom to decide in the election on 4 February 1982 wheth-
er they wanted the Union to be their exclusive collec-
tive-bargaining representative.
I fmd from Peter Hofstetter's testimony that on 29 Oc-
tober 1981 a group of nonemployees , not including the
Union's organizers, came to the hospital's lobby where
they expressed support for the Union 's organizing effort
and protested the Employer's retention of Skoler, Abbott
& Hayes . I also find from Hofstetter's testimony that the
group remained in the lobby for 15 to 20 minutes and did
not go elsewhere in the hospital . There was no showing
that the Union or its agents participated in this confron-
tation . Moreover, there was no showing that the group
engaged in any disorderly conduct or that they in any
way affected the hospital 's operations.
The incident of 20 November 1981 involved Ruth Ce-
lotto and a group of off-duty employees and nonem-
ployees . The Employer included this same incident in its
third objection. The conduct complained of was a warn-
ing from a member of the group : "[W]e're going to get
you, Ruth." I found that this threat, coming from an un-
identified source , provided no basis for setting aside the
election.
I have again considered the same incidents' impact on
the election . I find that it did not impair the employees'
freedom of choice in the election . The employees who
sought entry to Celotto's staff meeting on 20 November
1981 did not disrupt patient care or the Employer's other
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities . Celotto barred their entry and they departed
from her doorway without further incident. She went on
with her meeting. There was no showing that Celotto or
her superiors imposed any punishment on the off-duty
employees. Nor did Celotto recommend such action.
Finally, there was no union agent present. I find,
therefore, that the incident of 20 November 1981, was
not likely to create the impression that the Union had the
run of the hospital as the Employer claimed.
I have previously considered the incident of 23 No-
vember 1981 in dealing with the discrimination against
Lori Barrell. I found that Section 7 of the Act protected
Barrell's participation with the group in their attempt to
discuss Kathy Dykeman's resignation with Eric Riese-
berg and present petitions to him regarding Skoler,
Abbott & Hayes and Modern Management Methods, Inc.
I see no ground for disturbing that finding here. There
was no showing that the group of off-duty employees
and nonemployees involved in this incident disturbed the
Employer's patient care or any other of its activities.
Similarly, I have reviewed the events of the weekend
of 30-31 January and of Monday, 1 February 1982,
above in presenting the circumstances leading up to the
arrests of four employees on 1 February 1982. I found
that union agents did not participate with the off-duty
prounion employees in their organizing activities in the
hospital either during the weekend or on Monday. I also
found no showing that the employees had impaired the
Employer's patient care or its other activities during the
3 days under scrutiny. Neither the Union nor the em-
ployees engaged in "unlawful intrusion" or "coercive
conduct" as urged by the Employer. (R. Br. 122.) I find,
therefore, that neither the Union's conduct nor that of
the off-duty prounion employees would suggest "that the
Union could engage in unlawful, coercive conduct with
impunity." (Id.)
The final incident that the Employer asserted in sup-
port of its fourth objection involved Earl Joyce and a
group of 15 to 20 people, none of whom were union
agents . I have previously recited and analyzed the cir-
cumstances under which employee Thomas Grant told
Joyce that Dave Mercier had threatened to beat Joyce
severely because he believed that Joyce had tried to
drive his automobile into Mercier. I found that in this
context the threat that Thomas Grant voiced to Joyce
was not likely to have any effect on the election.
I find it unlikely that employees would connect the
coming election or their freedom to decide whether they
wanted the Union as their bargaining agent with the
threat uttered by Grant to Joyce. Instead, the threat fol-
lowed in the wake of a complaint that Joyce had at-
tempted to run over Mercier. There was no reference to
the Union or its cause. I find, therefore, that this inci-
dent, either alone or in association with the other inci-
dents that the Employer has raised, did not create, or
help to create, the impression that the Union or its sup-
porters were free to "engage in unlawful, coercive con-
duct with impunity."
To sustain its burden of showing grounds for setting
the election aside in Case 1-RC-17475, the Employer
must show that the conduct complained of was coercive
and that it was "so related to the election as to have had
a probable effect upon the employees' actions at the
polls." NLRB v. Zelrich Co., 344 F.2d 1011, 1015 (5th
Cir. 1965). Accord: CBS, Inc., 223 NLRB 709, 718 fn. 19
(1976). Further, as I pointed out above, the Board will
not set aside an election because of third-party conduct
unless the character of the conduct created an atmos-
phere of fear and reprisal that rendered a free choice in
the election impossible. Here, the Employer has failed to
satisfy these tests. I find that none of the incidents com-
prising the Employer's fourth objection provided any
basis for setting aside the election in Case 1-RC-17475.
In support of its fifth objection, the Employer called
attention to the conduct that I have previously consid-
ered in overruling Objections 1 through 4 and the con-
duct considered in overruling Objection 6 below. In ad-
dition, the Employer complained that the Union re-
strained and coerced employees by questioning employ-
ees about their union sentiment and by maintaining
charts recording employee sentiment toward the Union.
I find from Union Organizer Sanders' testimony that
during the preelection campaign prounion employees en-
gaged other employees in conversations regarding the
Union. In this way, the prounion employees sought to
determine the extent of the Union's support at the hospi-
tal. The Union maintained several charts reflecting the
extent of its support among the employees by shift, de-
partment, and bargaining unit. The charts reflected by
name which employees were for, and which were
against, the Union. The Union's organizers and the
prounion activists discussed among themselves the union
sentiments of individual employees as reflected in the
charts. If the Union and its supporters determined that an
employee was for the Union, the prounion employees
put a star next to his or her name. If an employee were
against the Union, his or her name was yellowed-out on
the list. There was no showing that the Union or the
prounion employees conducted their questioning in the
context of threats of reprisal against those who either
voiced opposition to the Union or expressed indifference
toward it.
The Board in J. C. Penney Food Department, 195
NLRB 921 fn. 4 (1972), held that noncoercive preelec-
tion polling by a union prior to a Board-held representa-
tion election did not warrant setting aside the election.
Accord: Kusan Mfg. Co., 267 NLRB 740, 746 (1983),
Glamorise Foundations, 197 NLRB 729 (1972).
The Board has found that a union's interrogation of
employees regarding their support for a rival union in
the context of threats of surveillance, or other reprisals
was unlawfully coercive and thus violative of Section
8(b)(1)(A) of the Act. E.g., Graham Engineering, 164
NLRB 679, 695 (1967). Retail Clerks (Skorman's Miracle
Mart), 160 NLRB 709, 710 (1966). The Board has also
found that a union violated Section 8(b)(1)(A) of the Act
by interrogating employees regarding their participation
in the circulation of a petition protesting representation
by the union. Stokely-Bordo, 130 NLRB 869, 873 (1961).
Here, the Employer has not shown that either the
questioning of employees by prounion employees or by
the Union's agents or the Union's use of charts to record
the employees' sentiments or the discussion of individual
SPRINGFIELD HOSPITAL
employees ' sentiments at union meetings occurred in a
context of threats of reprisal or other coercive conduct
attributable to the Union or to its supporters . I find,
therefore, that neither the survey of employees' union
sentiment nor the retention of the results in the form of
charts restrained or coerced employees in the exercise of
their right to vote in the election in Case 1 -RC-17475.
The Employer, in support of its sixth objection, con-
tends that the Union's campaign both before and during
the preelection period, following the filing of the petition
in Case 1 -RC-17475, caused "fear and confusion which
destroyed the laboratory conditions necessary in which
to hold a free and fair election ." (R. Br. 130.) The Em-
ployer attempted to show the "fear and confusion" by
reference to Objections 1, 2, and 4 and to the events of
30 January through 1 February 1982 , all of which I have
discussed earlier in this decision . In each instance, I
found that the conduct alleged did not provide grounds
for setting the election aside . I reaffirm those findings
here , in response to the Employer 's sixth objection.
The Employer urged that the arrests of four employ-
ees on 1 February 1982 so disrupted the atmosphere sur-
rounding the election in Case 1 -RC-17475 as to warrant
setting it aside . The Employer, although insisting that the
Petitioner bore full responsibility for the arrests , conced-
ed: "A reasonable man could . . . conclude that the ulti-
mate responsibility for the arrests lay in part with every-
one involved ." (R. Br. 159 .) As I see it, the Employer is
attempting to benefit from its own unfair labor practice.
I have found that the Employer , as the Respondent in
the unfair labor practice proceedings , caused the four ar-
rests in violation of Section 8(a)(1) of the Act. Although
the police and the State's attorney were actors in the
process leading up to and including the four arrests it
was the Employer who had invited the police onto its
premises and encouraged the arrests when Administrator
Rieseberg originally contacted Chief Herdt of the
Springfield police.
It was the Employer's conduct in calling the police
and the consequence of that conduct that restrained, co-
erced, and interfered with the employees in their attempt
to choose a collective-bargaining representative . Indeed,
I have found that unlawful conduct among other viola-
tions of Section 8(a)(1) of the Act as grounds for setting
aside the election of 4 February 1982 in Case 1-RC-
17476. It may be assumed that the employees who sup-
ported the Union on the same day in the election in Case
1-RC-17475 were aware of the four arrests and suffered
the same effects as the employees in Case 1 -RC-17476.
However, it would be contrary to the policy embodied
in the Act to permit the Employer to benefit from its un-
lawful conduct by setting aside an election in which de-
spite the unlawful conduct the Petitioner enjoyed majori-
ty support . Cf. Medo Photo Supply Corp. v. NLRB, 321
U.S. 678 , 687 (1944). Accordingly, I find that arrests of
the four employees on 1 February 1982 provided no
ground for setting aside the election in Case 1-RC-
17475.
In its sixth objection , the Employer also included a
claim that the Union created an atmosphere of lawless-
ness surrounding the election in Case 1 -RC-17475, by
693
soliciting a nonemployee , Howard Richmond , to install a
listening device in Administrator Rieseberg's office.
I find from Richard Sanders ' testimony that at a union
meeting in late December 1981 and , again, at a later
meeting Howard Richmond, who was not employed by
the Employer, suggested installing a hidden electronic
listening device in Administrator Rieseberg's office.
Sanders rejected the suggestion on both occasions.
Howard Richmond testified that he considered produc-
ing an electronic listening device in the Fall of 1981 at
Sanders' suggestion . Richmond did not take any steps to
produce the device, despite Sanders inquiry about "how
it was coming ." According to Richmond , he was hesi-
tant in his response to Sanders ' question, "and after that
there wasn 't much discussion." However, for reasons
stated below, I did not credit Richmond' s testimony at-
tributing the bugging scheme to Sanders.
Richmond corroborated Sanders' testimony that in the
autumn of 1981 Richmond strongly believed that the
Employer was keeping the union hall in which Sanders
conducted meetings with prounion employees under
electronic surveillance . Indeed, Richmond admitted that
during that period he would walk around outside the
hall looking up at a nearby hill for electronic devices.
Considering Richmond's suspicion that the Employer
was using electronic surveillance and his admitted famili-
arity with listening devices, it seems likely that he would
be the one to suggest retaliation . There was no showing
that Sanders suspected that the union hall was under sur-
veillance by the Employer or that Sanders had any tend-
ency to use electronic listening devices in his organizing
campaigns.
Richmond also cast doubt on the reliability of his testi-
mony by admitting that prior to 26 November 1981,
during the period in which he assertedly first discussed
the bugging of Rieseberg's office with Sanders, he at-
tended union meetings under the influence of alcohol,
which caused his obsession with electronic devices, and
his memory of that period is "rather foggy." His testimo-
ny on cross-examination demonstrated this uncertainty
about when he first talked to Sanders about the bugging
scheme .80 My doubts about the reliability of Howard
Richmond's testimony, together with my impression that
Sanders provided his honest recollection of his conversa-
tions with Howard Richmond, persuaded me to credit
Sanders.
I find, therefore, that the Union did not attempt to
enlist Howard Richmond in a plot to place an electronic
listening device in Eric Rieseberg's office during the
preelection period. I shall therefore recommend that the
Employer's sixth objection be overruled.8 t
60 Margaret Richmond testified that before the election she was aware
of a plan to wiretap Rieseberg 's office. However, her testimony does not
reflect whether her husband, Howard, or union organizer Sanders origi-
nated the plan. Margaret contradicted Howard's testimony regarding the
first time he discussed his testimony with the Employer's counsel.
Howard testified that his first contact with the Employer 's attorneys oc-
curred in February 1983 . Margaret testified that it occurred to the
summer of 1982. Margaret 's testimony in this regard contributed to my
doubt that Howard Richmond was a reliable witness.
81 In any event , even if Howard Richmond 's testimony were credited,
the plot did not reach fruition. Further, only one voting unit employee,
Continued
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE EMPLOYER/RESPONDENT'S MOTION TO SEVER
CASES AND TO DISMISS CASES 1-RC-17475 AND
1-RC-17476
A. Issue
By motion dated 24 August 1984 the Employer/-
Respondent sought severance and dismissal of the repre-
sentation proceedings in Cases 1-RC-17475 and 1-RC-
17476 on the ground that the Petitioner in those cases
"ceased to exist" on 7 May 1984. The Petitioner/Union
in its timely response disputed the assertion that it ceased
to exist, and sought denial of the Employer/-
Respondent's motion. On 8 November 1984 the Regional
Director consolidated the issue raised by the pleadings
with the proceedings already before me in the instant
cases . On the parties joint motion, I held a hearing on
this issue on 13 November 1984 at Springfield, Vermont.
B. Facts
In January 1979 the National Union of Hospital and
Health Care Employees, referred to as the National
Union, chartered the Petitioner. At that time, the Nation-
al Union was a division of Retail, Wholesale and Depart-
ment Store Union (RWDSU), AFL-CIO. According to
the National Union's constitution, it was "a single indi-
visible entity of the Retail, Wholesale and Department
Store Union." The National Union's jurisdiction ex-
tended "nationally in the Hospital and Health Care
Field." The National Union's constitution designated its
subdivisions as "Districts." The Petitioner has been at all
times since January 1979 a district of the National Union.
As of 4 February 1982, the date of the elections, the
National Union paid per capita tax to, and was a division
of and affiliated with, RWDSU, which was, and contin-
ues to be, an independently chartered AFL-CIO union.
However, about February 1984 the National Union re-
quested a separate charter from the AFL-CIO. The
AFL-CIO rejected the request.
Effective 1 October 1984 the AFL-CIO executive
committee granted a separate charter to the National
Union. At present, the National Union is neither a divi-
sion of, nor in any way affiliated with, the RWDSU.
Since 1 October 1984 the National Union has not been
bound by the RWDSU's International constitution or
bylaws. Further, since that date the National Union has
not been required to pay and has not paid a per capita
tax to RWDSU.
The Employer's employees in the bargaining units in
Cases 1-RC-17475 and 1-RC-17476 were not afforded
the opportunity to vote by secret ballot, or otherwise, on
the question of either the National Union's disaffiliation
from RWDSU or the National Union's acceptance of an
AFL-CIO charter.
The National Union's executive board authorized its
removal from affiliation with RWDSU in accordance
with a settlement agreement approved by United States
Margaret Richmond , Howard 's wife, was aware of the plot before the
election In these circumstances , I would not find that the Union had cre-
ated an atmosphere of lawlessness . Not would I find that this conduct
created or contributed to an atmosphere of fear and reprisal that would
render the employees' free expression of choice impossible
District Judge Leonard B. Sand of the Southern District
of New York on 3 May 1984. Article V, section 3 of the
National Union's constitution, as amended in December
1983, gave to its executive board "full power to take all
measures within the law to effect the National Union's
disaffiliation from the RWDSU . . . if the Executive
Board deems it in the best interest of the members to do
so."
In August 1984 the National Union's membership, in a
referendum, amended its Constitution by deleting from it
all references to the RWDSU, except in the preamble,
which recites the National Union's history. In the same
referendum, the membership also voted to raise the per
capita tax paid by the districts to the National Union and
to accept a charter from the AFL-CIO. The Employer's
employees did not vote in the referendum. At the time of
the referendum, none of the Employer's employees was
paying dues to, represented by, or a member of the Peti-
tioner.
The National Union is the parent body of 13 subordi-
nate districts, including the Petitioner. The nexus be-
tween the Petitioner and the National Union came into
existence in January 1979 with the National Union's issu-
ance of a charter to the Petitioner as a district. There has
been no change in that charter since its issuance.
The National Union's withdrawal from RWDSU has
not resulted in any substantial change in the Petitioner's
identity. As of 13 November 1984, the date of the hear-
ing on this issue, the Petitioner's elected officers were
Jerome Brown, president, Larry Fox, secretary-treasurer,
and Carmen Blagrove, vice president. These same indi-
viduals held the same offices in the Petitioner at the time
of the election on 4 February 1982 and were each re-
elected in 1983 for another 2-year term. Since February
1982 the Petitioner's geographical jurisdiction has includ-
ed Connecticut, Maine, Massachusetts, New Hampshire,
Rhode Island, and Vermont. In February 1982 the Peti-
tioner conducted its collective-bargaining contract nego-
tiations through its president, Jerome Brown, or staff
members he hired. As of 13 November 1984 the Petition-
er's officers or its staff conducts the Petitioner's contract
negotiations.
Since February 1982 there has been no change in the
method by which the Petitioner handles grievances. The
Petitioner, a district of the National Union, consists of
chapters. Each chapter is coextensive with a work loca-
tion. Chapter members elect delegates, who are the
equivalent of stewards. The delegates process grievances
on behalf of their respective chapters. Members of the
Petitioner's staff oversee the enforcement or renegoti-
ation of collective-bargaining agreements and the proc-
essing of grievances. There has been no change in the
staff's responsibilities regarding contracts and grievances
since 1979.
Nor have there been any changes in the Petitioner's
day-to-day operations or in its collective-bargaining obli-
gations since the National Union withdrew from
RWDSU and acquired an AFL-CIO Charter. The Peti-
tioner continues to administer contracts, handle griev-
ances, negotiate new contracts, organize employees, and
represent its members before workmen's compensation
SPRINGFIELD HOSPITAL
boards and other agencies exactly as it has done since
1979.
Prior to the National Union' s withdrawal from
RWDSU, neither the Petitioner nor the National Union
sought or received RWDSU's assistance in its day-to-day
operations . Also, I find from President Brown 's testimo-
ny that the Petitioner "never saw or asked for a repre-
sentative of the RWDSU to negotiate a contract, to
handle a grievance , to come to a labor board hearing, to
go to a workers compensation hearing or to a political
action affair to represent our members in any way,
manner, shape or form."
I also find from President Brown 's testimony that at
no time prior to the National Union's separation from
RWDSU did the latter play any role " in the negotiation,
administration , signing or approval of any collective-bar-
gaining agreement or representation of employees in the
[Petitioner]." Nor did RWDSU assist the Petitioner or
the National Union in organizing employees.
C. Analysis and Conclusions
The Employer argues that under current Board law,
regardless of the effect of the National Union 's with-
drawal from RWDSU on the Petitioner 's structure, the
absence of a secret-ballot vote among the voting unit em-
ployees precludes the Board from certifying the Petition-
er as their exclusive bargaining representative . The Peti-
tioner contends that as its identity or structure suffered
no fundamental change , Board law did not require any
vote among the Employer's employees . I agree with the
Petitioner.
The Board, in Charlie Brown 's, 271 NLRB 378 (1984),
reaffirmed its policy of requiring a secret-ballot election
among a unit of employees where their "certified or rec-
ognized bargaining representative changes its organiza-
tional structure ." 271 NLRB at 378. In that representa-
tion case, the Board refused to certify the petitioning
union where, after the election, the petitioner had been
divided into two local unions , and the unit employees
had no opportunity to vote on the division.
However, the Board has also held that where "there
has been no change in the essential identity of the bar-
gaining representative ," a vote by the unit employees on
the question of continuity of representation is not re-
quired. Montgomery Ward & Co., 188 NLRB 551, 553
(1971). Here , as shown above , the National Union's with-
drawal from RWDSU has had no substantial effect on
the Petitioner's identity. Indeed , I find from the record
before me that as far as the unit employees were con-
cerned , all that resulted from the withdrawal , which was
proper under the National Union's constitution , was the
removal of "Retail, Wholesale & Department Store
Union" from the Petitioner 's name . Accordingly, the
Employer's motion to sever and dismiss Cases 1-RC-
17475 and 1-RC-17476 is denied . Knapp-Sherrill Co., 263
NLRB 396, 399 (1982).82
82 The Employer's motion to strike the testimony regarding the Peti-
tioner 's identity is denied.
CONCLUSIONS OF LAW
695
1. The Respondent , Springfield Hospital , is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, New England Health Care Employees
Union, District 1199 , National Union of Hospital and
Health Care Employees , Retail , Wholesale & Depart-
ment Store Union , AFL-CIO, and United Electrical and
Machine Workers of America (UE) Local 218 are each a
labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent interfered with , coerced , and re-
strained its employees in the exercise of rights guaran-
teed by Section 7 of the Act, thereby committing unfair
labor practices prohibited by Section 8(a)(1) of the Act,
by (a) expressly or impliedly threatening employees with
more onerous conditions of employment, arrest , or other
reprisals because they supported the Union ; (b) coercive-
ly interrogating employees regarding their union activi-
ties or sentiments towards the Union ; (c) restricting em-
ployees from moving about the hospital because it be-
lieved they were engaging in casual discussions that in-
cluded expressions of prounion sentiments; (d) granting
wage increases to employees for the purpose of causing
them to reject the Union as their collective -bargaining
representative; (e) permitting nonunion solicitation
during working time while prohibiting union solicitation
during working time ; (f) promulgating an invalid no-
access rule about 1 October 1981 and an invalid no-
access policy about 1 December 1981 and discriminatori-
ly enforcing the rule and the policy against the union ac-
tivities of off-duty employees; (g) causing the Springfield,
Vermont Municipal Police to cite and arrest employees;
(h) threatening employees with arrest; (i) promulgating
and enforcing a no-access rule for the purpose of thwart-
ing its off-duty employees ' union activity on the day of a
Board-held representation election.
4. The Respondent violated Section 8(a)(3) and (1) of
the Act when it enforced its no-access policy selectively
and disparately by issuing a verbal warning against em-
ployee Roxanne Royce because she engaged in union ac-
tivity.
5. The Respondent has violated Section 8 (a)(3) and (1)
of the Act by reducing employee Lori Barrell 's working
hours because she engaged in union activity.
6. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
7. The Respondent has not violated Section 8(a)(4),
(3), and (1) by issuing a written warning and a verbal
warning to employee Thomas Grant on 29 June 1983.
8. The Respondent has not otherwise violated the Act.
REPORT ON OBJECTIONS AFFECTING RESULTS OF THE
ELECTIONS IN CASES 1-RC-17475 AND 1-RC-17476
The Employer's Objections
I have found no merit to the Employer 's objections to
the conduct of the election and conduct affecting the re-
sults of the election in Case 1 -RC-17475 . Accordingly, I
shall recommend that this case be remanded to the Re-
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gional Director for Region 1 with direction to certify the
Union as the collective-bargaining representative of the
employees in the following appropriate collective-bar-
gaining unit:
All full-time and regular part-time technical em-
ployees employed by the Employer at its 25 Ridge-
wood Road, Springfield, Vermont hospital, includ-
ing Licensed Practical Nurses, Graduate Practical
Nurses, Laboratory Technicians (Medical Laborato-
ry Technicians), Certified Laboratory Assistant,
Abstractor/Coder I, Abstractor/Coder II, Physical
Therapy Assistant, X-ray Technicians, Assistant
Chief Radiologic Technologist, Patient Review Co-
ordinators (Utilization Review Coordinators), but
excluding all other employees, professional employ-
ees, including Registered Nurses and Head Nurses,
Laboratory Medical Technologists, Laboratory Sec-
tion Heads, business office employees, service and
maintenance employees, per diem employees, casual
and temporary employees, guards and supervisors
as defined in the Act.
The Petitioner's Objections
Having found that during the critical period between
the filing of the representation petition in Case 1-RC-
17476, on 16 October 1981, and the date of the election,
4 February 1982 (Ideal Electric & Mfg. Co., 134 NLRB
1275, 1278 (1961)) the Respondent violated Section
8(a)(1) of the Act, as set forth above in section III of this
decision, it follows that the election in Case 1-RC-17476
must be set aside, and I so recommend. Dal-Tex Optical
Co., 137 NLRB 1782, 1786-1787 (1962); Leas & McVitty,
Inc., 155 NLRB 389, 390-391 (1965). Accordingly, I
shall recommend that the election held on 4 February
1982 in Case 1-RC-17476 be set aside, and that the case
be remanded to the Regional Director for Region 1 with
directions to conduct a new election at an appropriate
time.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
As the Respondent discriminated against Lori Barrell
by depriving her of 4 days' employment, I shall recom-
mend that the Respondent make Barrel] whole for any
loss of pay and other benefits she may have suffered by
payment to her of the sum she would had earned but for
the discrimination against her , plus interest as computed
in Florida Steel Corp., 231 NLRB 651 (1977).
I shall also recommend that the Respondent be re-
quired to remove from its files any reference to Lori
Barrell's removal from the Respondent's work schedules
on 24, 25, 26, and 29 November 1981 or to the verbal
warning that the Respondent issued to employee Rox-
anne Royce on 1 February 1982, and notify them in writ-
ing that it has done so and that it will not use either Bar-
rell's 4-day suspension against her or the verbal warning
against Royce in any way.
I shall also recommend that the Respondent be re-
quired to petition the Springfield, Vermont police de-
partment to expunge all records relating to the citations
issued to Judith Bryant, Barbara Davis, Simone Murray,
Roxanne Royce, and Beverly Camire and the arrests of
Judith Bryant, Barbara Davis, Simone Murray, and Rox-
anne Royce on 1 February 1982.
On these findings of fact and and conclusions of law
and on the entire record, I issue the following recom-
mended"
ORDER
The Respondent, Springfield Hospital, Springfield,
Vermont, its officers , agents, successors, and assigns,
shall
1. Cease and desist from
(a) Reducing work hours, issuing verbal warnings, or
otherwise discriminating against any employee for sup-
porting New England Health Care Employees Union,
District 1199, National Union of Hospital and Health
Care Employees, Retail, Wholesale & Department Store
Union, AFL-CIO, or any other union.
(b) Threatening employees with more onerous condi-
tions of employment, arrest, or other reprisals because
they support District 1199 or any other union.
(c) Coercively interrogating employees regarding their
activities on behalf of, or their sentiments toward, Dis-
trict 1199 or any other union.
(d) Restricting the movement of employees at the hos-
pital to prevent them from conversing with other em-
ployees in support of District 1199 or any other union.
(e) Granting wages increases to employees for the pur-
pose of causing them to reject District 1199 or any other
union as their collective -bargaining representative.
(f) Discriminatorily enforcing its no-solicitation rules
against employees who engage in union activity.
(g) Promulgating and selectively enforcing an invalid
no-access rule or an invalid no-access policy to permit
off-duty employees to enter or remain on its premises for
various purposes but not for union solicitation or to
interfere unlawfully with its employees' right to solicit
on behalf of District 1199 or any other union.
(h) Causing the citing or arrest of employees by police
or reprimanding or otherwise disciplining employees for
having violated the Respondent's unlawful no-access rule
or policy.
(i) Threatening employees with arrest or other disci-
pline if they violated the Respondent's invalid no-access
rule or its invalid no-access policy.
(j) Promulgating, maintaining, or enforcing a no-access
rule designed to thwart the union activities of off-duty
employees on the Respondent's premises.
(k) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
88 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
SPRINGFIELD HOSPITAL
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole employee Lori Barrell for any loss of
pay she may have suffered as a result of the reduction of
her work hours, in the manner set forth in the remedy
section of this decision.
(b) Remove from its files any reference to Lori Bar-
rell's removal from the Respondent 's work schedules on
24, 25, 26, and 29 November 1981 , and notify her in
writing that this has been done, and that it will not use
the 4-day suspension against her in any way.
(c) Remove from its files any reference to the verbal
warning that the Respondent issued to employee Rox-
anne Royce on 1 February 1982 , and notify her in writ-
ing that this has been done and that it will not use that
verbal warning against her in any way.
(d) Petition the Springfield , Vermont Police Depart-
ment requesting that it expunge from its files any refer-
ence to the citation issued to Judith Bryant, Barbara
Davis, Simone Murray , Roxanne Royce, and Beverly
Camire or to the arrests of Judith Bryant, Barbara Davis,
Simone Murray , and Roxanne Royce on 1 February
1982.
(e) Preserve and , on request, make available to the
Board or its agents for examination and copying, all pay-
roll records , social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its hospital in Springfield , Vermont, copies
of the attached notices marked "Appendix" A.84 Copies
s* If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
697
of the notice, on forms provided by the Regional Direc-
tor for Region 1 , after being signed by the Respondent's
authorized representative , shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the consolidated
complaint be dismissed insofar as it alleges violations of
the Act not specifically found.
IT IS FURTHER ORDERED that the election held on 4
February 1982 in Case 1-RC-17476 be, and the same is,
set aside, and the case is remanded to the Regional Di-
rector to conduct a new election at such time as he
deems that the circumstances permit the employees to
express their free choice regarding the selection of a col-
lective-bargaining representative.85
IT IS FURTHER ORDERED that the Employer 's objec-
tions be overruled and that Case 1-RC-17475 be re-
manded to the Regional Director for the issuance of a
certification of representation to New England Health
Care Employees Union, District 1199, National Union of
Hospital and Health Care Employees , Retail , Wholesale
& Department Store Union, AFL-CIO.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
ss If the Respondent fails or refuses to comply with the terms of the
Order pertaining to Case 1-CA-19635, the Regional Director is author-
ized to conduct the new election on District 1199's written request. Ideal
Baking Co., 143 NLRB 546, 554 fn. 9 (1963).