St. John'S General Hospital Of Allegheny County- Adr CenterDownload PDFNational Labor Relations Board - Board DecisionsSep 30, 1986281 N.L.R.B. 1163 (N.L.R.B. 1986) Copy Citation ST. JOHN 'S HOSPITAL 1163 St. John's General Hospital of Allegheny County- ADR Center and Amalgamated Food Employees Local 590 a/w United Food and Commercial Workers International Union , AFL-CIO-CLC. Cases 6-CA-14603 and 6-CA-15496 30 September 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 31 March 1983 Administrative Law Judge James M. Fitzpatrick issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief and cross-exceptions limited to the remedy, and the Respondent filed an answering brief to the General Counsel 's cross-exceptions. 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, and conclusions ' and to adopt the recommended Order2 as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , St. John's General Hospital of Allegheny County-ADR Center, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns , shall take the action set forth in the Order, as modified. 1. Insert the following as paragraph 1(a) and re- number original paragraphs 1(a) and (b) according- ly. "(a) Refusing to recognize and bargain with Amalgamated Food Employees Local 590, affili- ated with United Food and Commercial Workers International Union, AFL-CIO-CLC, as the exclu- 1 We find it unnecessary to pass on whether the Respondent 's unlawful conduct should be considered in deciding whether a union 's misconduct provides a defense against a refusal-to-bargain allegation since we find that there is, in any event , insufficient basis for denying the union the benefit of its certification . Further , in such circumstances , we find it un- necessary to pass on the judge's suggestion that a Laura Modes, 144 NLRB 1592 (1963), defense should not apply to the union misconduct set out in this case. P The judge recommended dismissal of several allegations . In the ab- sence of exceptions we pro forma adopt these recommendations. The judge inadvertently misspelled Geraldine Tellelsen 's name. a We shall modify the judge 's recommended Order to require that the Respondent , on the Union 's request, rescind the unlawful unilateral changes made. Absent such a request, however , the Respondent shall not rescind the changes unilaterally made until it has met its bargaining obli- gations . Since none of the unlawful unilateral changes affecting wages is to the detriment of the employees , no restoration or make -whole order is required. sive representative of its employees in the appropri- ate unit described below." 2. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs. "(b) On request of the Union, rescind the follow- ing unlawful unilateral changes: (1) the reassign- ment from unit secretaries to nurse assistants the duty of recording patient temperatures , pulse rates, and respiration rates ; (2) the rotation of the shifts of nurses assistants between the East and West wings of the ADR; (3) the revised method for de- termining compensation for counselors ; and (4) the 25 December 1981 granted wage increases. In the absence of such a request, the Respondent is pre- cluded from either varying or abandoning any of the above terms and conditions of employment re- sulting from the unilateral changes , without first meeting its bargaining obligations." 3. Substitute the attached notice for that of the administrative law judge. 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 refuse to recognize and bargain with Amalgamated Food Employees Local 590, af- filiated with United Food and Commercial Work- ers International Union, AFL-CIO-CLC as the ex- clusive representative of the employees in the bar- gaining unit. WE WILL NOT refuse to bargain with the Union as the exclusive representative of the employees In the bargaining unit concerning the size and timing of wage increases, the method of determining com- pensation of counselors, the assignment of TPR duties, the rotation of nurses assistants and unit sec- retaries between wings , and other terms and condi- tions of employment. 281 NLRB No. 157 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time professional employees , including registered nurses em- ployed by St. John's General Hospital of Alle- gheny County-ADR Center at 3530 Fleming Street, Pittsburgh, Pennsylvania facility, and all full-time and regular part-time nonprofes- sional employees, including detoxification, re- habilitation, outpatient and driving under the influence counselors, the information and edu- cation director, the public relations director, li- censed practical nurses, nurses' assistants, unit secretaries, the medical records clerk, the CIS coordinator, the data coordinator, dietary de- partment employees, and housekeeping depart- ment employees, including the linen service person and maintenance person; but excluding physicians and other professional employees, business office clericals, including the switch- board operator and billing clerk, confidential employees, guards and supervisors as defined in the Act. WE WILL, on request of the union, rescind the following changes: (1) the reassignment from unit secretaries to nurses assistants of the duty of re- cording patient temperatures, pulse rates, and respi- ration rates; (2) the rotation of the shifts of nurses assistants between the East and West wings of the ADR; (3) the revised method for determining com- pensation for counselors; and (4) the unilaterally granted wage increases. In the absence of such a request WE WILL not either vary or abandon any of the above changes without first meeting our bar- gaining obligations. ST. JOHN 'S GENERAL HOSPITAL OF ALLEGHENY COUNTY-ADR CENTER Charles H. Saul Esq., and Cynthia Frederick Esq., for the General Counsel. Aims C. Coney Jr., Alan Lewis, Hayes C Stover, and Mary A. Cascio Esqs., of Pittsburgh, Pennsylvania, for the Respondent. Mr. Dale Fatchet, of Pittsburgh, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge. This case involves a Union certified by the Board to rep- resent employees of an alcohol and drug rehabilitation Center. The Center, in order to test the validity of the certification, has refused to bargain. The Union, charging this was an unfair labor practice, called a strike in sup- port of its representative status. After the strike it claimed that the Center had unlawfully changed certain employment conditions without consulting it, and in some instances discriminated in regard to returning strik- ers. The Center denies this and claims the Union should be decertified because of conduct during the strike. I find below that there was no discrimination, that there were unlawful changes in employment, that the Center should have bargained all along with the Union, and that the Union is not disqualified to represent the employees. These unfair labor practice proceedings began May 27, 1981, with the filing by Amalgamated Food Employees Local 590 a/w United Food and Commercial Workers International Union, AFL-CIO-CLC (the Union) of charges in Case 6-CA-14603 which asserted that St. John's General Hospital of Allegheny County-ADR Center (Respondent) had violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). On July 15, 1981, the Union filed other charges in Case 6-CA- 14731 asserting Respondent had violated Section 8(a)(1) and (3) of the Act, and on May 24, 1982, filed the charges in Case 6-CA-15496 asserting further violations of Section 8(axl), (3), and (5) of the Act. In the meantime, on June 26, 1981, a complaint based on the initial charges (Case 6-CA-14603) issued alleging that Respondent engaged in unfair labor practices in vio- lation of Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union following its certification by the National Labor Relations Board (the Board). In its answer of July 6, 1981, Respondent denied the appropri- ateness of the alleged bargaining unit, denied the validity of the certification, and denied committing unfair labor practices. Thereafter, on August 13, 1981, the General Counsel moved for summary judgment which the Board denied April 27, 1982, remanding the case to the Board's Regional Director for appropriate action. The case was then set for hearing on July 26, 1982. As noted above, charges in Case 6-CA-14731 were filed July 15. A com- plaint based on these issued May 21, 1982, alleging viola- tions of Section 8(a)(1) and (3) of the Act by evaluating and then discharging employee Patricia Poremski on July 7, 1981. That case was then consolidated with the first. On June 3, 1982, Respondent answered this com- plaint denying that it violated the Act. The third charge (Case 6-CA-15496) filed May 24, 1982, resulted in a third complaint (on issuing July 6, 1982) that was then consolidated with the two prior cases. This third com- plaint alleged again that Respondent had unlawfully re- fused to bargain with the Union as the certified repre- sentative of the employees and further that from August 3, 1981, to May 4, 1982, the employees had engaged in an unfair labor practice strike at the conclusion of which ST. JOHN'S HOSPITAL 1165 Respondent failed to reinstate certain strikers in a timely manner or to jobs according to their prior schedules and working conditions because they had supported the Union. The complaint further alleged that in mid-May 1982 Respondent unilaterally granted wage increases and changed its method of compensation without consulting the Union. In its answer filed July 16, 1982, Respondent repeated its position taken in the first case respecting the validity of the certification and the absence of any duty to bargain with the Union. It also denied the strike was over unfair labor practices , contending it had committed none . It further denied that the unilateral changes were unlawful . As an affirmative defense Respondent asserted that the Union, by intimidation , harassment , and interfer- ence with Respondent 's activities, had disqualified itself from eligibility for remedial relief under the Act. The three consolidated cases were heard before me at Pittsburgh , Pennsylvania , on July 26 through 30 and August 4 and 5, 1982. During the hearing additional amendments to the complaints were allowed . After the hearing closed the parties settled many, but not all, issues . The settlement was implemented by amending the pleadings to isolate settled matters in Case 6 -CA-14731, which was then severed from the other cases, and by a stipulation in that case carrying out the terms of the set- tlement . Unsettled issues in Cases 6-CA-14603 and 6- CA-15496 still pending are: (a) Whether Respondent vio- lated Section 8(a)(5) and (1) of the Act in refusing to rec- ognize and bargain with the Union following its certifi- cation; (b) whether it further violated Section 8(a)(5) and (1) by unilaterally changing working conditions, includ- ing granting wage increases , certain restrictions on smok- ing and the drinking of soft drinks, reassigning the re- sponsibility for recording patients ' temperature , pulse, and respiration rate , and reinstituting rotating work schedules; (c) whether Respondent also violated Section 8(a)(3) and (1) in making the changes respecting smoking and the drinking of soft beverages , the recording of tem- perature, pulse, and respiration rate and the rotation of work schedules on the ground they were in retaliation for employee union and protected concerted activities; (d) whether Section 10(b) of the Act bars findings of unfair labor practices based on any of these changes; and (e) whether the Union is disqualified to represent the em- ployees by its conduct during a strike. Based on consideration of the record' applicable to these surviving issues, and including my observation of the witnesses and consideration of the briefs of the Gen- eral Counsel and the Respondent , I make the following FINDINGS OF FACT I. THE EMPLOYER INVOLVED dicts . Operations of the ADR Center are divided sequen- tially into a Detoxification Program , a Rehabilitation Program , and an Out-Patient Program . The Center annu- ally receives gross revenues exceeding $250,000 and pur- chases and receives at its Pittsburgh facility directly from points outside Pennsylvania products , goods, and materi- als valued over $5000. It is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 8(g) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Overall Refusal to Bargain 1. The status of the Union The Union, a labor organization within the meaning of Section 2(5) of the Act, petitioned the Board on Decem- ber 16, 1980, in Case 6-RC-8914 for certification as the representative of certain employees of Respondent. On March 26, 1981, the Board , pursuant to that petition, conducted an election and on May 11, 1981, the Board, through its Regional Director 's Supplemental Decision and Certification, certified the Union as the exclusive collective-bargaining representative of Respondent's em- ployees in the following appropriate bargaining unit: All full-time and regular part-time professional em- ployees, including registered nurses employed by the Employer at its 3530 Fleming Street, Pittsburgh, Pennsylvania, facility, and all full-time and regular part-time nonprofessional employees, including de- toxification, rehabilitation , outpatient and driving under the influence counselors , the information and education director, the public relations director, li- censed practical nurses, nurses' assistants , unit secre- taries, the medical records clerk, the CIS coordina- tor, the data coordinator , dietary department em- ployees, and housekeeping department employees, including the linen service person and maintenance person; excluding physicians and other professional employees, business office clericals, including the switchboard operator and billing clerk, confidential employees, guards and supervisors as defined in the Act.2 On May 22, 1981 , Respondent requested the Board to review the Regional Director's Supplemental Decision and Certification and, on June 16, 1981, the Board denied Respondent 's request on the ground it raised no substantial issues warranting review . The General Coun- sel and the Union contend that since May 11, 1981, the Union, by virtue of Section 9(a) of the Act, has been the Respondent , a nonprofit Pennsylvania corporation, op- erates health care facilities in Pittsburgh, Pennsylvania, including, since October 4, 1974, a facility known as the ADR Center (Alcohol and Drug Rehabilitation Center) for rehabilitation and treatment of alcohol and drug ad- ' The record is corrected as set out in App. A in accordance with the unopposed motion of the General Counsel . [App. A has been omitted from publication ] 2 It is Respondent's position that this unit is invalid because of Board rulings before and after the election as well as after the certification. These issues , however. may not appropriately be resolved in this unfair labor practice proceeding . On July 28, 1982, in its order in the present proceeding sustaining an interim appeal by the General Counsel, the Board explicitly precluded litigation of such questions in this proceeding except for evidence of strike violence . For the purpose of creating a full record and to avoid delay , I have in my discretion received evidence re- lating to nonviolent conduct which Respondent contends should have the same legal significance as violence. 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive representative of the employees in the above unit for collective -bargaining purposes . Respondent dis- putes the validity of the election , the appropriateness of the unit , and the correctness of the certification and, therefore , denies that the Union , pursuant to Section 9(a), is the exclusive representative of those employees. In a letter of May 12 , and again on July 22 , 1981, the Union requested Respondent to bargain respecting the rates of pay , wages , hours of employment, and other terms and conditions of employment of employees in the unit. It is undisputed that Respondent has not so bar- gained , its position being that it has no legal duty to do so. Thus , when on May 15 , 1981, the Union 's general or- ganizer Dale Fatchet talked with Respondent 's attorney Aims Coney Jr., Coney informed him Respondent would not bargain with the Union until the litigation process was completely exhausted. The Board 's determination of the appropriate bargain- ing unit and its certification of the Union as the exclusive representative of employees in that unit are binding on me and , as noted above , not relitigable here. Pittsburgh Plate Glass Co. v. NLRB , 313 U . S. 146, 162 ( 1941); Mag- nesium Casting Co. v. NLRB, 401 U.S . 137 (1971); Fron- tier Hotel, 242 NLRB 590 (1979); King & Stanley, 200 NLRB 230, 231 ( 1972). Respondent 's refusal since May 15, 1981, to recognize and bargain collectively with the Union as the representative of the employees in that unit is an unfair labor practice within the meaning of Section 8(a)(1) and (5) of the Act. This is a continuing violation whether the offending employer has since altered the terms and conditions of employment of those employees. See Master Slack Corp ., 230 NLRB 1054 (1977), enfd. 618 F.2d 6 (6th Cir . 1980). B. The Strike After Fatchet learned on May 15 , 1981, that Respond- ent would not bargain until litigation had been exhaust- ed, he informed the employees of Respondent 's position at a meeting on May 31 , 1981, at which time they voted to strike . The Union thereafter gave appropriate notifica- tion to Respondent , pursuant to Section 8(d) and (g) of the Act of the intention to strike . The strike commenced on August 3, 1981, and continued for 9 months until May 4, 1982. It is clear that the strike protested Re- spondent 's refusal to recognize and bargain with the Union as the certified employee representative. Since that refusal was, and continues to be , an unfair labor practice , as were certain of the unilateral changes in terms and conditions of employment discussed herein- after, I find that the strike was caused and prolonged by those unfair labor practices. C. Unilateral Changes in Working Conditions The General Counsel contends certain changes in terms and conditions of employment are unfair labor practices . These include restrictions on smoking and drinking soft beverages , reassignment of the responsibil- ity for recording patient temperatures , pulse rates, and respiration rates, and establishment of a rotation system for certain employees between the two wings of the Center . The complaints allege that Respondent violated Section 8(a)(1), (3), and (5) with respect to these matters. The General Counsel also contends that Respondent in- stituted wage changes thereby violating Section 8(a)(1) and (5) of the Act . Respondent argues that no unfair labor practices occurred , although it admits it did not consult with the Union about any of these matters. 1. The 10(b) defense Respecting the assignment of the duties to record tem- peratures , pulse rates , and respiration rates and as to the rotation of employees between wings of the Center, Re- spondent raises the defense that the allegations are barred by Section 10(b) of the Act because the charges on which they are based were filed and served on May 25, 1982, more than 6 months after the time the events com- plained of occurred . The strike began August 3, 1981, and these two alleged changes occurred immediately thereafter . According to Respondent, February or March 1982 was the latest point at which valid charges could have been filed respecting them . However, the Union did not learn of the changes until after the strike ended on May 4 , 1982. Union Representative Fatchet testified without contradiction that he did not know of them until union adherents who were on strike returned to work and reported back to him the differences in working con- ditions . The General Counsel contends , and I agree, that lack of knowledge by the Union tolls the running of the 6-month period under Section 10(b). Florida Steel Corp., 235 NLRB 1010 (1978); Russell-Newman Mfg. Co., 167 NLRB 1112 , 1115 (1967); NLRB v. Shawnee Industries, 333 F . 2d 221 (10th Cir . 1964). Accord : Drukker Commu- nications, 258 NLRB 734-735 (1981). 2. Temperature , pulse, and respiration The first of the complained-of unilateral changes oc- curred shortly after the strike began and involved the transfer from unit secretaries to nurses assistants (aides) of the duties of recording patient temperature , pulse, and respiration rates (TPRs). Prior to the strike TPRs were recorded by the secretaries on reporting for work at 8 a.m. When the strike began , Respondent decided to con- tinue operating in spite of a shortage of employees, in- cluding unit secretaries. Nurses aides, who reported at 6 a.m., were more plentiful and were available at that time of the morning . Maureen Sleber, director of nursing, transferred the TPR duties to the nurses aides because of their greater availability . The transfer also proved advan- tageous in another way in that the recordation was thus accomplished prior to the morning rounds of the attend- ing physician . The new system , which worked well, was continued in effect after the strike and was applied equal- ly to strikers and nonstrikers. 3. Rotation between wings The ADR facility has two wings , east and west. The General Counsel claims one unilateral change involved abandonment of permanent assignment of nurses assist- ants and unit secretaries to a single wing in favor of a system of rotating shifts from one wing to the other. Although at the time the strike began aides and secre- taries did not rotate from one wing to the other , perma- ST. JOHN'S HOSPITAL nent assignments had not always been the arrangement. Nurses assistant Leah McKerahan testified she had been working in that manner for about a year, the implication being that previously she had rotated ends, although she denied she had been permanently assigned for only a month before the strike. On the other hand, Director of Nursing Maureen Sieber testified credibly, and I find, that permanent assignments had been in effect since May 1981, that is, a period of less than 3 months. I credit Sieber because she had overall responsibility for assign- ments and her testimony was more definite than McKer- ahan's in placing the time. Prior to May 1981 the system had been to rotate between the wings. At the start of the strike, however, assignments were permanent and that was then the status quo. Sometime during the strike, the precise time not being apparent from the record, Sieber changed back the assignments of nurses assistants and unit secretaries from permanent assignment to a particu- lar wing to rotating shifts from wing to wing. She did so because in her judgment the change more effectively as- sured continuing coverage of the detoxification floor. This system continued after the strike ended and was ap- plied equally to strikers and nonstrikers. The General Counsel contends that rotation is more onerous than permanent assignment to a wing. The evi- dence tends to show that the aides prefer permanence to rotation. No evidence indicates the work is more difficult or different in one wing than the other. The employee attitude may in part be a desire to retain the more famil- iar surroundings, but in part appears to be based on the opinion, as does the General Counsel's argument, that permanent assignment is the more efficient and effective system. That, however, is a business judgment. Employ- ee disagreement on that score or because of personal preference does not, without more, warrant the conclu- sion that the change imposed more onerous working conditions. Accordingly, I find that, although a change occurred, substantial evidence does not demonstrate the new conditions to be more burdensome. 4. Restrictions on smoking and drinking soft beverages Report time at the Center is the brief overlapping of outgoing and incoming shifts during which the outgoing nursing staff turns over and reports to the incoming nurs- ing staff information and records needed for continuing, adequate care of the patients. From time to time in the past the atmosphere at report time was relaxed, allowing staff members to smoke and to drink beverages such as coffee and soda. At other times in the past, according to the credible testimony of Sieber, restrictions were im- posed on such staff activities. When the strike began, no such restrictions were in effect and during most of the strike the situation remained unchanged. About a week before the Union ended the strike on May 4, 1982, Sieber imposed restrictions on smoking and drinking beverages during report time. The ban thereafter applied to both striking and nonstriking nursing staff members, but was never applied to physicians, patients, or visitors. There is no evidence of restrictions during any period other than report time. 1167 According to Sieber, whom I credit in this regard, the report time restrictions were imposed to avoid spillage and burns on patients ' medical charts, which are perma- nent records, and to eliminate distractions which might detract from the effective transfer of medical information from the outgoing to the incoming shift . This appears to be a valid basis for the exercise of supervision , whether one agrees with the decision . The General Counsel argues it was a discriminatory, adverse action because: it was applied to strikers on their return whereas before the strike it had not been ; it deprived them of a pleasurable privilege; and it was disparate treatment in that it did not apply to physicians , patients, or visitors . Nevertheless, adequate business considerations existed for the restric- tions even though they deprived staff members of a privilege . They applied equally to striking and nonstrik- ing nursing staffers . They were not timed to retaliate against returning strikers, the termination of the strike being within the control of the Union and the strikers, not Respondent . Finally, Sieber, who imposed the re- strictions , possessed supervisory authority over the nurs- ing employees to whom the restrictions were directed but none over physicians, patients , or visitors to whom she bore a different relationship . I find no disparate treat- ment. 5. Conclusions respecting discrimination To support the assertion of a discriminatory motive for the implementation of the foregoing three changes in working conditions, the General Counsel points to evi- dence in the settled matters3 that were severed out to the effect that returning striker Bertha McNutt, a mental- ly handicapped employee in the dietary department, was, on her return, required to perform cashier work for which she felt unqualified. The General Counsel labels the requirement "heartless" and asserts that "the only possible motivation" was a desire to get rid of union ad- herents. I disagree that such is the sole permissible infer- ence. It is also possible that management was heartlessly attempting to rid itself of a handicapped employee. On the other hand, it is also possible that management was making a firm effort to enlarge the employment skills of this handicapped person. On this record there is no basis for concluding that such an effort was foredoomed to failure. In fact McNutt proceeded to perform cashier work for a month. Respondent did not discharge her as incompetent. All things considered, I do not find the evi- dence relating to McNutt to be persuasive of a motive of discrimination in the implementation of the three changes in working conditions described above. Thus, the question of motive for making the changes turns on the evidence directly relating to each change. That evidence does not establish a motive to discourage union adherence or to retaliate against strikers for their loyalty to the Union. Each change applied equally to strikers and nonstrikers. See Universal Service Contractors, 247 NLRB 724, 727-728 (1980). Credible business rea- 8 Evidence in settled matters may be considered in determining moti- vation See Laborers (Joseph's Landscaping), 154 NLRB 1384 (1965), enfd. 389 F.2d 721 (9th Cir. 1968). 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sons existed for each change and those reasons adequate- ly explain why the duties of some employees were en- larged or, in the estimation of the employees, made less desirable. P. Q. Beef Processors, 231 NLRB 1076, 1080 (1977). All three changes occurred during the 9-month strike; none appears to have been triggered by the return of the strikers. Accordingly, I find a preponderance of the evidence fails to establish that Respondent's transfer of TPR duties from unit secretaries to nurses assistants, its return to a systematic rotation of staff between wings, or its restrictions on smoking and drinking beverages during report time violated Section 8(a)(3) of the Act. The allegations of the complaint so alleging should be dismissed. 6. Conclusions respecting the duty to bargain over changes in working conditions a. The changes in working conditions The reassignment of TPR duties and the system of ro- tation between wings involved unilateral change in either work or working conditions from a prior status quo to a new status desired by management . Both changes in- volved mandatory subjects of bargaining if the Union re- quested bargaining. Here the Union generally requested bargaining following the certification and legally has made a continuing request to bargain and Respondent has categorically rejected all bargaining. It is conceded that the legality of the unilateral changes turns on whether Respondent owes an underlying duty to recog- nize and bargain with the Union. As already found here- inabove, Respondent violated Section 8(a)(1) and (5) of the Act in its general refusal to bargain following the certification. It is well settled that in making material and substantial unilateral changes in terms and conditions of employment while testing the validity of a certification through Board and court proceedings, an employer acts at its peril, such changes being automatic violations of Section 8(a)(1) and (5). Eltra Corp., 263 NLRB No. 106 (Aug. 31, 1982) (not reported in Board volumes); Adver- tisers Mfg. Co. v. NLRB, 677 F.2d 544, 547 (7th Cir. 1982); Hillcrest Furniture Mfg. Co., 253 NLRB 72, 73 (1980); Master Slack Corp., supra. Although these changes were based on business considerations, there is no evidence that Respondent was compelled to make them. Therefore, no legal justification for making them unilaterally exists. Han-Dee Pak, Inc., 249 NLRB 725 (1980). I find Respondent violated Section 8(a)(1) and (5) in implementing them. Respecting the restrictions on smoking and drinking during report time, I find no violation of Section 8(a)(1) and (5) because, even though no compelling business reason dictated the restrictions, neither were they, in my view, "a material, substantial change from prior prac- tice" considering that they applied only to the 15-minute overlap of shifts, were not unknown in the history of the Center, and their imposition was supported, albeit not compelled, by reasons of efficiency. Rust Craft Broad- casting of New York, 225 NLRB 327 (1976); Clements Wire & Mfg Co., 257 NLRB 1058, 1059 (1981). In these circumstances I find the restrictions "did not rise to the level of a violation of the Act." Master Slack, supra at 1055. D. Compensation Changes In early autumn 1981 Respondent altered its system for compensating counselors and on December 25, 1981, it granted wage increases. Both actions were carried out without notice to, or consultation with, the Union. The General Counsel contends these were discretionary ac- tions, not compelled by past practice, and that Respond- ent violated Section 8(a)(1) and (5) in acting unilaterally. Respondent contends they were consonant with past practice and failure to give the wage increases would have violated Section 8(a)(1) and (5). 1. Compensation of counselors Prior to the strike, ADR counselors, unlike other em- ployees, were paid pursuant to the scale in the Allegheny County Personnel Action Plan (PAP). Respondent char- acterizes that system as outmoded, ineffective, and in- equitable, resulting in an illogical, disparate pattern of personal wage rates for counselors of like academic background, experience, and seniority. This contrasted with the so-called grid system in use for 8 years at the main St. John's Hospital that compensated counselors by means of a more mechanical application of criteria keyed to education, experience, and seniority. When the strike began in August 1981, Respondent continued operating, in part by hiring nine replacements for striking counselors.4 Compensation for these replace- ments could not be rationalized under the Center's pres- trike wage system but could be, and was, determined by applying a grid system similar to that in use at the main Hospital. Respondent put this system into effect for ADR counselors in early autumn 1981. As a result, some replacement counselors received more and some less compensation than had the strikers whom they replaced. 2. The December wage increase The December 25 wage increases applied to all em- ployees at both the ADR Center and the main Hospital, including counselors. The percentage of increase varied depending on the job classification involved. When the strikers returned in May 1982, all, including counselors , received pay as computed under the percent- age increases of the previous December. In instances where this resulted in a wage less than the indicated amount under the grid system, the returning counselor was brought up to that scale and, if the result was more than the grid amount, the returning counselor was grant- ed the excess. 3. Conclusions respecting compensation changes On their faces, the installation of the grid system for formulating compensation for counselors and the pay in- creases on December 25 were changes from what had existed immediately preceding those actions. The disput- 4 Eleven of the Center's 13 counselors joined the strike. For the first 5 months of the stnke Respondent abandoned its out-patient program ST. JOHN'S HOSPITAL ed issue is whether changes occurred that required bar- gaining. As to the grid system as applied to counselors, Re- spondent points to historical use of a similar system at the main Hospital and to the practical need for a rational method of establishing pay for replacement counselors during the strike . Use of a grid system at the main Hos- pital is an interesting , but irrelevant , historical fact since it involved a different bargaining unit in a different enter- prise than the ADR Center . Thus, while use of a grid system at the main Hospital supplies a rational explana- tion as to how and why the Center 's management thought to adopt such a system , it does not go to show that the status quo ante included that system , nor does it justify the inevitable erosion of the exclusive representa- tive status of the Union inherent in management 's bypass- ing of the Union when the system was adopted . In reali- ty Respondent admits a change was made and attempts to justify it on grounds of business necessity, namely, the need for a rational standard for formulating compensa- tion of replacement counselors . In part this is a bootstrap argument based on the premise that the prestrike basis under which counselor compensation was set was irra- tional, arbitrary, and inequitable . The only record evi- dence on the point so indicates . But the inadequacies of the prior system do not establish necessity for a change, only the desirability of change . Respondent took the op- portunity presented by the strike to put in place a prefer- able system, more rational, less arbitrary , and more equi- table for the new replacements . In its brief Respondent argues that after the strike started , "The Center was then faced with the problem of how to pay these [replace- ment] counselors since the existing wage structure had no logical application to new hires ." Logical or not, Re- spondent could have maintained (but chose not to) the status quo by paying each replacement according to the established PAP rate for the job filled , irrational, arbi- trary, and inequitable as it was. Instead , Respondent, without consulting the Union, put in a better system. That was a clear violation of Section 8(a)(5) and (1) of the Act . Eltra Corp., supra . Respondent 's contention that Section 10(b) of the Act bars finding an unfair labor practice on this basis lacks validity because, as noted ear- lier herein, the Union lacked notice of the change. As to the wage increases in December 1981, the Gen- eral Counsel asserts they were a change requiring bar- gaining, relying on Masher Steel Co., 220 NLRB 336, 337-338 (1975), and indirectly on NLRB v. Katz, 369 U.S. 736 ( 1962). Respondent contends they merely con- tinued past practice and that under applicable precedent it would have been an unfair labor practice not to have given the increases, citing Charles Mfg. Co., 245 NLRB 39 (1979); Jeffco Mfg Co., 211 NLRB 787 (1974); Allied Products Corp., 218 NLRB 1246 (1975 ); Barko Hydraulics, 225 NLRB 1379 (1976); and Furr 's Cafeterias, 251 NLRB 879 (1980), affd . 656 F.2d 698 (5th Cir. 1981). The record reflects that even before the ADR Center was established as an institution separate from the main Hospital, the Hospital followed a practice for at least the past 17 years of awarding annual wage increases to em- ployees around the end of December or the first part of January and that this practice continued at both the main 1169 Hospital as well as at the ADR Center after it was estab- lished . The amount of the annual increases followed a pattern of between 8 and 10 percent of the employees' existing wage, any difference from year to year being within the discretion of management and its judgment of the economic health of the employing institution. Al- though the difference between 8 and 10 percent can be viewed as a narrow range , it is in fact substantial , being a 20-percent difference , and sufficient to label that determi- nation as discretionary . Hanes Corp., 260 NLRB 557 (1982); and see Mosher Steel, supra, where the difference found discretionary was between 5 and 6 percent. For the job categories of nurses assistant, unit secretary, die- tary employee, and housekeeping employee, the increase awarded on December 25, 1981 , was 9 percent , thus con- tinuing the historical pattern . The testimony of Daly, ad- ministrator of the Center, indicates that originally annual increases for registered nurses and licensed practical nurses also followed this same pattern, continuing until both the main Hospital and the ADR Center experienced a nursing shortage . Although the time when the nursing shortage developed is not reflected in the record , it is ap- parent that it occurred sometime prior to the events in this case and that a new pattern had already developed in the immediately preceding years to grant to registered nurses and licensed practical nurses increases greater than those allowed other employees . Thus, the decision as to the amount to be given to nurses was a discretion- ary determination of management based on the economic health of the institution and the amount necessary to at- tract their services . On this basis the increase granted to registered nurses December 25, 1981 , was 12 .7 percent and to licensed practical nurses 16.5 percent. In view of these facts I find that "Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the certi- fied representative regarding the specific, discretionary aspects of a wage increase . . . it was the refusal to bar- gain over these discretionary aspects rather than Re- spondent 's unilateral but lawful effectuation of the estab- lished" policy of annual increases which were unfair labor practices . Hanes Corp., supra. E. The Affirmative Defense that the Union Has Disqualified Itself to be Employee Representative As noted above, the Union was certified May 11, 1981, and the Board refused to review that decision on June 16, 1981 . On May 12 the Union requested bargaining and on May 15 Respondent refused, indicating its intention to litigate further the validity of the certification . It is well established that an employer refusing to bargain with a union following certification in order to test the validity of that certification in the appellate courts, does so at its peril. Quaker Tool & Die, 169 NLRB 1148 (1968); J. P. Stevens & Co., 186 NLRB 180, 183 (1970), enfd . 455 F.2d 607 (5th . Cir. 1971). Following Respondent's refusal, the employees on May 31 voted to strike in support of the Union's status as their bargaining representative. After giving Respondent the required statutory notification of that intention as provided in Section 8(d)(3), Section 8(d)(B), and Section 8(g) of the Act, the Union com- menced the strike on August 3, 1981 , which lasted 9 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD months . Thus, the strike was brought about by Respond- ent's adherence to its own views respecting the certifica- tion, its refusal to accede to the Board 's official certifica- tion, and its continuing refusal to honor its obligations under Section 8(a)(5) of the Act. Cf. Maywood Plant of Grede Plastics , 235 NLRB 363, 364 (1978). Moreover, the strike was not started precipitously but was delayed until after the extensive notification period required by the statute for health institutions during which both sides had adequate opportunity to consider whether strike action would be appropriate in the circumstances. Respondent contends that because of events which oc- curred during the long strike , the Union should now be disqualified from representing the employees. In a word, it should be decertified . Respondent 's position is founded both on picket line misconduct and appeals directed to the general public . With respect to the former , the argu- ment is that the Union at the picket line exploited the vulnerability of arriving potential patients with the result that they did not seek needed treatment at the Center. The appeals to the general public were in the form first of letters to various organizations which refer patients to the Center , which letters , according to Respondent, con- tained groundless statements impugning the quality of pa- tient care at the Center . Second , one of these statements respecting deaths at the Center , was repeated by a picket in a television interview. 1. Picket line conduct Picketing occurred at only one location , the main ap- proach to the ADR Center . The Center is located on a tract adjoining Fleming Avenue in Pittsburgh , the en- trance to the Center being via Letort Street leading from Fleming Avenue into the ADR Center . This access street is approximately 25-feet wide . During the first month of the strike about 15 pickets , all strikers, pa- trolled the perimeter of Letort Street in a rectangular pattern. After about a month the number of pickets dwindled to between six and eight . Throughout, the picketing was peaceful and nonviolent. It is apparent that approaching vehicles would have pickets on either side as well as in front . Although it is clear that the pickets endeavored to persuade everyone approaching not to enter the Center , it is also clear from the weight of the evidence that even though some pick- ets were in the roadway, no one insisting on proceeding into the Center was in fact prevented from doing so. What appears to have been necessary in order to move on through was a firmly demonstrated purpose to pro- ceed . I find that no permanent obstruction occurred. Those approaching the Center included persons who worked therein and were not honoring the strike , deliv- ery and service people , visitors , and patients and pro- spective patients together with those invariably accompa- nying them . Virtually all who approached did so in vehi- cles. The technique of appeal was to stop an approaching vehicle and endeavor to persuade the driver and anyone else in it to support the strike by not proceeding into the Center . With respect to patients and prospective patients, the record reflects that they invariably were passengers, either in a taxicab or a private vehicle , driven by some- one else . The pickets appealed to the driver as well as to the passenger . If the passenger was a patient or prospec- tive patient , the pickets directed them to another facili- ty.5 If in the opinion of the pickets , which included some counselors and at times even the Union 's general orga- nizer, an approaching patient was in need of immediate attention , the vehicle was waved on through . This, how- ever, was an off-the-cuff judgment exercised in some in- stances by pickets with no professional qualification. These ad hoc , unsupervised judgments by pickets as to whether an incoming patient should be waved in or not is one of the reasons Respondent urges that the Union be decertified. The uncontradicted expert , testimony of James Daly, administrator of the ADR Center , indicates that, in gen- eral, incoming patients seeking help from the Center are psychologically vulnerable and pliable . The vast majority are referred to the ADR detoxification unit which aver- ages approximately 200 admissions per month . Daly's tes- timony indicates , and I find , that the typical arriving pa- tient is filled with anxiety and stress .6 The approaching patient is ambivalent , on the one hand wanting to come in, yet on the other not wanting to . In Daly 's words: You deal with the fear of they are going to find me insane in there , self doubts , generally overwhelmed with guilt , tremendously low self-esteem , and over- whelmingly need to be liked , yet filled with self- hatred for theirselves , sometimes overly hostile, yet at the same time , internally passive , literally a hodge-podge of pathology. Incoming patients usually are then experiencing a drink- ing or drug-induced condition and generally have been influenced to come to the Center by some external per- suasion such as a directive from their employer , or from their family , or because they have run out of money, or because they are frightened as a result of hallucinations or other trauma . Sometimes they evidence varying moods alternating rapidly between depression and laugh- ing. They may have decided on an impulse to "take the cure ." Eighty percent of the patients simultaneously suffer from related medical problems such as diabetes, hypertension, high blood pressure , pancreatitis, therangi- tis, and cardiac disorders as well as malnutrition. Many of these ailments are not visually apparent and would not have been so to the pickets. To underscore the effect of the picketing on incoming patients , Respondent offered the testimony of two pa- tients, Geraldine Tellefsen and James Robinson . Tellef- sen, a young woman approximately 21 years old at the time of the strike , lived in Brownsville, Fayette County, Pennsylvania , and had been an alcohol and drug abuser 5 At least two of the alternative facilities are located several miles away St Francis General Hospital is 12 miles distance Jefferson Memo- nal Hospital is 26 miles The distance to what is referred to as the Brod- dock facility is not apparent from the record 5 Daly's opinion is founded on academic instruction buttressed by years of experience observing addicts after they are in the Center In his judgment every person addicted to drug or alcohol is an emotional, im- mature personality who at the point of arrival at the Center is over- whelmed with guilt ST. JOHN'S HOSPITAL for several years . Late one evening in early August 1981, I infer shortly after the strike began, she became ill as the result of excessive use of alcohol and drugs and was taken to the Brownsville Emergency Hospital. After treatment there she was driven to the ADR Center during the early hours of the following day by a female employee of Fayette County who was not called as a witness . During that time, according to Tellefsen, she was experiencing retching and severe stomach pains. As the car approached the Center on Letort Street she ob- served three pickets patrolling . She testified they were blocking the way to go into the Center, but at another point she testified they were patrolling on the sidewalk and that they were not in front of the car. Considering that she admittedly was ill and was not too attentive, I find the evidence insufficient to establish that the car was blocked. The driver stopped the car at the entrance to the Center and asked a picket what was going on, to which he responded there was a strike . The driver then asked what she could do with Tellefsen and after looking into the car at Tellefsen, the picket replied that she did not look that bad and to take her some place else. The driver also asked the picket about the picket line and, ac- cording to Tellefsen, he answered , "Well, we really don't allow anybody to cross it." The driver did not then attempt to go into the Center but instead turned back and left, taking Tellefsen to Bellview Hospital where she was treated in the emergency room and then referred to Respondent's main Hospital . The driver then took her to St. John's main Hospital which arranged her transporta- tion into the ADR Center in a van . Tellefsen was then treated at the ADR Center. James Robinson , age 48 at the time of the hearing, had experienced an alcohol problem for a number of years. In July 1981, as a result of strong recommendations from his supervisor and friends , he went through a 5-day de- toxification program at the ADR Center. At the conclu- sion of this he left the Center for the purpose of attend- ing to personal business and with the understanding that he was to return in early August for a 28-day rehabilita- tion program for which his employer had arranged leave . When he returned to the Center in early August 1981 , to take up the rehabilitation program , the strike had already begun . Robinson, who had not been drinking at the time, was taken to the Center in an automobile driven by a friend named Hill, a military sergeant in uni- form. Hill was not called as a witness in this proceeding. According to Robinson , as they approached on the access road, they observed quite a few pickets all across the roadway. He was uncertain how many, variously in- dicating 5 or 10 or 15, not all together but scattered. From this and the other evidence in the record respect- ing the pattern of the picketing I find that on that occa- sion the picketing was following a normal pattern of a rectangular patrol crossing Letort Street at two points. It is not entirely clear where, but the sergent stopped the car, probably at the entrance from Fleming into Letort. When he brought the vehicle to a stop, pickets ap- proached, gathering around the car, talking to the occu- pants . Robinson numbers those about the car as four or five. They came up both sides with some remaining in the roadway in front . Respondent 's counsel asked Robin- 1171 son, "Was it possible for the car to proceed , or were the pickets preventing the progress of the car?" Robinson answered , "They were more or less preventing it, but I imagine if we had tried to proceed , they would have al- lowed it." He testified further that the pickets spoke with them, making remarks such as, "You know since you are going in here, you know we are on strike , and you prob- ably won't receive active care ." Hill did not proceed be- cause Robinson immediately told him to turn away and leave. Before coming Robinson knew there was a strike and intended to go through the picketing , which he said he might have done had there been only one or two pickets but because of the numbers , he changed his mind. Robinson testified that he experienced an apathetic feel- ing and he told Hill , "Hey, let's turn around and go back, I will try to seek help some place else." He ex- plained what he meant by apathetic feeling by saying, "I sort of you know , sympathized with the personnel who was out on the picket , at the time ." He indicated it is possible that if there had been fewer pickets he might have proceeded into the Center. After he and Hill left , he attempted by telephone to obtain assistance at another institution called Gateway Rehabilitation Center, but without success . He later joined Alcoholics Anonymous . The pickets had suggest- ed that as an alternative he could do to St . Francis Hos- pital , but he did not because it was his impression St. Francis only operated a detoxification center and what he needed at that point was rehabilitation. 2. Discussion regarding picketing The most reliable general picture of the picketing is provided by Bart Vant and Dale Fatchet, based on their observation over an extended period of time . The testi- mony of Tellefsen and of Robinson deal only with two early occasions and, although entitled to credit, do not, in my view, support a generalization that all arriving pa- tients reacted as they did. This is particularly true in view of Daly's testimony that detoxification patients nor- mally arrive at the rate of 200 per month . It is further obvious from the record that Tellefsen, although a forth- right witness, was not the best witness for observing events on the occasion of her arrival because at the time she was in distress as a result of her abuse of a combina- tion of alcohol and drugs . Looking to all the evidence relating to the picketing, it appears to have been normal, nonviolent , and lawful. Verbal appeals made by the pickets were persuasions rather than coercions . There is no evidence of verbal or physical threats of any sort . The suggestions that the care inside the Center might not be up to par, while un- derstandably unacceptable to Respondent in the circum- stances, cannot be said to be a gross departure from the truth . Many of the Center's personnel were out on strike and, to the extent the Center was continuing to operate the detoxification and the rehabilitation units, those oper- ations arguably were carried on with less personnel or new personnel less qualified than the strikers . No mass picketing , as that term is commonly understood, oc- curred . There was limited interference with vehicular traffic by the patrolling picket line which crossed Letort 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at either end. But the stopping of vehicles for the pur- pose of conveying a legitimate verbal message does not amount to substantial obstruction. There is no evidence indicating that a driver with a firm intent to enter the Center could not have done so. In the cases of Tellefsen and Robinson , both asked their drivers to go elsewhere and the drivers complied. Daly's testimony indicates that such is the reaction he would expect from a person addicted to alcohol or drugs. In fact that is what Respondent's affirmative defense comes down to, namely , that the normal picket line activities al- lowed by the Act and applicable case law should not be permitted in a labor dispute involving this type of a health facility because of the psychological fragility of the patients approaching the Center. Viewing the cir- cumstances in proper perspective , however, none of the patients arrived on foot or alone ; all were driven to the Center in a vehicle operated by a taxidriver or a friend or some official. For example, Tellefsen was driven all the way from Brownsville, Pennsylvania, by an official of Fayette County involved in referring her to the Center. Robinson was driven by a military sergeant, the referral having been arranged by Robinson 's superior, a major in the military service. Neither Tellefsen nor Rob- inson arrived on their own . Neither was in sole com- mand of the situation or even of the decision to go to the Center or on arrival to press on through the picket line. The picketing itself appealed to all, whether driver or passenger. It should further be noted that the picketing and verbal appeals on the picket line in the cases of Tellefsen and Robinson , although having the immediate effect of turning them back from the main entrance where the picket line was located, did not have the result of depriv- ing them of all treatment . Tellefsen was taken to another institution for immediate treatment and ultimately to the ADR Center later that same day. Robinson made contact with another institution that had a rehabilitation program and, although he did not succeed in achieving an ar- rangement because they did not call him back , he later entered an alternative program with Alcoholics Anony- mous. Respondent 's affirmative defense raises the question whether, on balance, the needs of arriving alcohol and drug abusers, who may but do not appear to be in imme- diate danger, should be served in such a way as to de- prive striking employees of the advantages of the normal pressures of picketing that, if used in a dispute with a dif- ferent type of enterprise, would be entirely legitimate. Without resolving that social question, the record in this case does not show a need to impose greater restrictions on those employee rights than are already imposed by the law . Daly's fears of the dangers of nontreatment re- sulting from the psychological vulnerability of the typi- cal alcohol and drug abuser and his testimony about the possibility of unobserved trauma because of that abuse or other ailments suffered by the patient are generalizations, albeit based on the honest views of an experienced ad- ministrator. It is not hard evidence that those dangers ex- isted to the extent he feared. The two instances demon- strated b- Res ndent Tell f d R b 1'y 0 a sen b some additional suffering . But something suitable worked out for each. Their failure to receive on demand the services of the Center following their decision not to press through the picket line does not demonstrate the kind of unconscionable conduct by the picketing employ- ees that justifies diminution of their rights or emascula- tion of the status of the Union which represents them. Although Respondent opted to continue operations during the strike, for the first 5 months thereof it discon- tinued the outpatient department , continuing only with the detoxification and the rehabilitation units . Some pa- tients who approached the picket line were seeking out- patient service and, on learning from the pickets that it was not available, asked picketing counselors to counsel them. At one time or another five counselors responded to these requests by taking the patient to the counselor's parked car away from the picket line and counseling the patient in the privacy of the car.7 Only one counselor, Bart Vant, had previously worked in the outpatient pro- gram . Maureen Horstman had worked in the rehabilita- tion program where I infer somewhat comparable coun- seling was provided. These two had earned masters de- grees, but the other three counselors only possessed high school diplomas . Daly testified that for such counseling to occur under those circumstances entailed unacceptable risks because of the absence of information respecting the patient (for example , case histories and treatment plans) and lack of listening skills on the part of some of the counselors . Daly said his objection was not to the dis- couraging effect on patients of the pickets publicizing their labor dispute, but rather that the pickets were using skills they had learned in the Center to, in his opinion, the detriment of the patients. There is, however, no ob- jective evidence of such detriment. 3. Appeals directed to members of the public other than patients In anticipation of the strike, Union President Jack Draper prepared a letter dated July 30, 1981, directed to the various labor organizations in the Pittsburgh area, in- cluding AFL-CIO affiliates of the Allegheny County Labor Council, Teamsters affiliates of the Teamsters Joint Council, and sister locals of the Charging Union af- filiated with United Food and Commercial Workers. Some of these unions had regularly referred patients to the ADR Center. The letter stated that the Union was commencing an unfair labor practice strike on August 3 because the Center had refused to recognize the Union, even though certified by the Board. The letter also made unflattering reference to Respondent 's counsel and con- cluded by asking for assistance by honoring the picket line and by informing the ADR Center that the recipient organization would not participate in the Center 's refer- ral system until such time as it recognized the right of its employees to representation. On August 5, 1981, 2 days after the strike began, Gen- eral Organizer Fatchet wrote the Allegheny County Drug and Alcohol Task Force informing it of the strike p an O mson, eSta 1S11 4 These counselors were Carol Fianik, Eugene Robinson , Maureen inconvenience to these patients, and in Tellefsen's case Horstman, Bart want, and Tom Quinlan ST. JOHN'S HOSPITAL and stating , among other things, that "It has been report- ed to our strikers by some rehabilitation patients that the care during the strike is anything but professional. The patients are not permitted to use the shower or bath fa- cilities at the Center which leaves them no choice but to bathe in wash basins and buckets . The reason for this is a skeleton crew of strike breakers are staying at the Center twenty-four (24) hours a day and they occupy the floor on which the bathing facilities are located . The patients also report that they are not getting qualified counsel- ing." The letter ended with the request that the recipient "Please take some time to investigate this matter as it is of great concern to our members who are dedicated to [the] well being of the patients ." Fatchet credibly testi- fied that the information in the letter had been provided by pickets who received it from patients going in and out of the Center . There is no evidence indicating the statements were false. In late autumn 1981 a television newscaster ap- proached the picket line and inquired of picket Bart Vant what was going on respecting the strike . Vant in- formed her it was an unfair labor practice strike. In answer to her question respecting the quality of the serv- ice at the Center, he stated that approximately 60 percent of the regular employees were striking and he questioned the quality of care within the Center . The interviewer then asked him whether any deaths had occurred within the Center; he replied that he had heard from departing patients that four patients had died in the Center since the beginning of the strike . The interview was later tele- cast as part of the evening news that same day. About this same time, and based on the same information , Presi- dent Draper sent a letter dated November 30, 1981, to all 24 directors of the ADR Center asking their support in the Union's dispute with the Center 's administration. After referring to the certification , the refusal to bargain, and the unfair labor practice strike, the letter asked the directors to investigate the financial cost of legal services and security services being supplied the Center , asked if the directors knew that ambulances and ambulance driv- ers were being used to solicit strikebreakers, asked whether the directors knew that picketing counselors were providing care to patients on the picket line and re- ferring patients needing rehabilitation and confinement to other treatment centers, and further asked whether the directors knew that four patients at the Center had died since the strike began . This last query was followed by the rhetorical question, "Is it coincidence or inadequate care?" The letter concluded with a request for support from the board of directors in resolving the dispute. 4. Discussion In his testimony Daly took strong exception to picket- ing counselors providing outpatient counseling to pa- tients who requested counseling . First, this record does not establish that providing such counseling violated any ethical or moral duty owed by the counselors . The inci- dents of ad hoc counseling were acts of charity. Daly complained that only two pickets had academic qualifica- tions for performing outpatient counseling , the inference being that counseling provided by the others might be useless or even harmful. His biggest objection appears to 1173 be that such counseling was uncontrolled , without bene- fit of backup records or the supervision of counseling done inside the Center . Even assuming Daly's arguments are entirely valid , the counseling in question must be as- sessed in the light of the circumstances . It was not part and parcel of the picketing , although it occurred while picketing was going on. The counselors did not volun- teer their services , but only responded to specific re- quests made by patients, some of whom knew them. The counseling was not per se prejudicial to Respondent nor was it intended to be . Whether medically or psychologi- cally objectionable, the counseling was provided only on request as an act of friendship and, as such, cannot be considered misconduct disqualifying the Union from rights enjoyed under the Act. The evidence is clear that the services provided pa- tients within the Center during the strike were dispar- aged in two ways . On the picket line pickets in talking to occupants of approaching vehicles disparaged the service within . And the Union in above -described letters to re- ferring organizations and to the Center 's own board of directors referred in unflattering terms to the treatment inside the Center . In the same vein , the spot telecast interview with Bart Vant disparaged the Center 's serv- ice. Although this interview occurred on the picket line, the comments were directed to the general public via tel- evision and for this reason it is more similar to the letters sent out by the Union than to the comments of pickets to incoming patients and drivers. The disparaging remarks made by pickets to incoming patients who were the users of the services provided by the Center fall in the category of conduct unprotected by Section 8(a)(1) and (3) of the Act. As a result, picket- ing employees making such remarks do so at the risk of losing the remedies which those sections of the Act pro- vides to employees . NLRB v. Electrical Workers IBEW Local 1229, 346 U.S. 464 (1953); Patterson-Sargent Co., 115 NLRB 1627 (1956). Here, those sections and their remedies are not at issue . We are not dealing with duties owed by employees to employers , the breach of which may forfeit rights to reinstatement or backpay . At issue instead is the relationship of the Union to the Employer and the question posed is whether the Union , in order to avoid forfeiting its right to represent the Employees, owes a duty not to disparage the employer. Although Respondent urges that such a duty exists , no Board nor court decisions so holding either that such a duty exists or that it does not exist have come to my attention. Re- spondent 's argument really is that such a duty ought to exist. But the Board not having enunciated such a rule, I deem it inappropriate to so extend the law at this level. Disparagements by the Union of the Employer 's serv- ices through letters and interviews, which are not strictly picket line conduct because they are not directed to the consumers of the service, are nonetheless prejudicial to the Employer . Such statements , except for the fact that they occur in the course of a labor dispute , do not differ significantly in their legal consequences from any other prejudicial statement made about a person or an organi- zation. The civil remedies for libel and slander are deemed adequate to protect the victims of tortious state- 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments. I see no reason to plow new ground by holding that labor unions and employers be treated differently, especially where the applicable statute indicates no spe- cific remedy for such a trespass . Accordingly, I find that the letters written by the Union and the statements by Bart Vant in the telecast interview were not in violation of a statutory duty owed by the Union to Respondent. And as to the Union 's letter to members of the board of directors which is Respondent 's governing body , dispar- aging statements are entirely immaterial inasmuch as they were directed to Respondent. Respondent urges generally that strike misconduct provides for a defense against an 8(a)(5) violation. Laura Modes, 144 NLRB 1592 (1963) is the starting point of the defense . In Laura Modes , the employer had unlawfully refused to recognize and bargain with a union that held authorization cards . The Board refused to issue a bar- gaining order because , immediately before and after the union filed its charges , it engaged in unprovoked and ir- responsible physical assaults on the employer . The Board (at 1596) explained its decision as follows: We do not, however , deem it appropriate to give the Charging Union the benefit of our normal af- firmative bargaining order in the circumstances of this case . For we cannot , in good conscience, disre- gard the fact that, immediately before and immedi- ately after it filed the instant charges , the Union evi- denced a total disinterest in enforcing its representa- tion rights through the peaceful legal process pro- vided by the Act in that it resorted to and/or en- couraged the use of violent tactics to compel their grant . Our powers to effectuate the statutory policy need not, we think , be exercised so single-mindedly in aiming for remedial restoration of the status quo ante, that we must disregard or sanction thereby union enforcement of an employer 's mandatory bar- gaining duty by unprovoked and irresponsible phys- ical assaults of the nature involved here . We recog- nize , of course, that the employees ' right to choose the Union as their representative survives the Union 's misconduct . But we believe it will not prej- udice the employees unduly to ask that they demon- strate their desires anew in an atmosphere free of any possible trace of coercion . Our order here and the voluntary agreement of the Union , as part of its October 29 , 1962, settlement of the 8 (b)(1)(A) charges filed against it , to refrain from any and all misconduct of the kind mentioned in the charges, will, we believe , afford the employees with the de- sirable conditions for making their free choice. We conclude that, in the particular circumstances of this case, the policies of the Act and the legitimate interests of the public and the parties will best be served by denying to the Union the right to invoke our statutory processes in aid of a demand for rec- ognition as bargaining representative of Respond- ents ' employees unless and until it demonstrates its majority among those employees through the Board's election procedures. In Maywood Plant of Grede Plastics, supra, the Board considered the limits of union misconduct which, in ac- cordance with Laura Modes, might preclude a bargaining order. Although the Board in Maywood found the union's various acts of misconduct during a strike were "serious violations," it considered them insufficient, when weighed against the company's misconduct, to justify de- nying the union a bargaining order Key to the Board's reasoning was the premise that "but for the Company's antecedent unfair labor practices the Union would not have engaged in its strike to protest the Company's un- lawful act and thus would not have been in a position to commit the violations of the Act which accompanied the strike." Ibid. at 364. That also is the case here. In arriv- ing at its determination in Maywood, the Board consid- ered a number of factors: 1. The extent of the union's interest in pursuing legal remedies. 2. The deliberateness of the union's conduct during the strike. 3. Whether the union's conduct was provoked by the company's own unlawful conduct. 4. The length of the union's misconduct in com- parison to the duration of the strike and the compa- ny's prestrike illegality. 5. The relative gravity of the union's misconduct as opposed to that of the company. [Id. at 365-366.] The Union here clearly has not been deficient in pur- suing its legal remedies under the Act. It went through the election process. Thereafter it filed the initial charges herein on May 27, 1981, shortly after Respondent refused to bargain, and has since filed additional charges on two occasions. As to the second Maywood factor, there is no question but that in the present case disparagement of the quality of care within the Center was done deliberately. Regarding the third factor, there is also no question but that the strike and its related conduct, including the dis- paragement about which Respondent complains, were direct results of Respondent's own refusal to bargain. The relative duration of each party's conduct, the fourth Maywood factor, somewhat balances each other. As noted earlier herein, the strike continued for 9 months, but it started only after Respondent persisted in refusing to bargain for 3 months and thereafter Respondent per- sisted in its refusal through the strike and until the present time. The fifth Maywood factor poses the ultimate policy question here: whether on the one hand it is pref- erable for the Board to indefinitely delay representation of employees in favor of preserving untarnished and un- impeded the availability to the public of health care fa- cilities, or on the other hand to treat health care facilities like other enterprises by permitting the normal persua- sions to be exerted by striking employees. Withholding a bargaining order pursuant to a Laura Modes theory is "an extraordinary remedy." Pace Oldsmobile, 265 NLRB 1001, 1013 (1982). As noted below, such does not appear to be an appropriate remedy for the present situation. Respondent would apply Laura Modes even though that case dealt with violent union misconduct rrior to certification. The absence of violence is an acceptable ST. JOHN'S HOSPITAL reason for not applying Laura Modes . See Fairview Hall Convalescent Home, 206 NLRB 688 at 689 (1973), enfd. in relevant part 520 F.2d 1316 (2d Cir. 1975). See also World Carpets, 188 NLRB 122 (1971); Cascade Corp., 192 NLRB 533 (1971). Respondent would, nevertheless, extend Laura Modes to apply to this postcertification case where (1) the misconduct takes the form of picket- ing health care employees disparaging the services of the struck employer, (2) the disparagement on the picket line is pursuant to the pickets' efforts to dissuade would-be patients from entering the facility , and (3) the union has engaged in disparagement in letters directed to interested organizations, to the struck employer's directors, and the public in a television interview. The Board, however, in cases involving nonviolent misconduct , has been reluc- tant to extend the Laura Modes precedent . For example, in L'Eggs Products Inc., 236 NLRB 354 (1978), miscon- duct interfering with resort to Board processes was not sufficiently objectionable to apply Laura Modes. Id. at 419-420. Also Paramount General Hospital, 223 NLRB 1017 (1976), suggests Board unwillingness to consider nonviolent misconduct sufficiently objectionable. Admittedly, the disparagement of products or services may lay the basis for loss of Section 7 rights, in the con- text of 8(a)(3) or 8(a)(1) discharges . NLRB v. Electrical Workers IBEW Local 1229, 346 U.S. 464 (1953); and Montefiore Hospital, 243 NLRB 681, 683 (1979). But those are not 8 (a)(5) cases . Respondent urges extension to 8(aX5) situations by application here of the Second Circuit's decision in Montefiore Hospital v NLRB, 621 F.2d 510 (1980). In Monteflore, the court refused to en- force a Board fording that two striking physicians were entitled to Section 7 protections. The physicians , in pick- eting a struck hospital, told would-be patients who ap- proached the line that the quality of care within was not adequate. I am bound, however, by the law as set forth by the Board in Montefiore Hospital, 243 NLRB 681 (1979). Moreover, I am unaware of any subsequent adju- dications which adopt the Second Circuit's approach. But even accepting , arguendo, the Second Circuit view, Montefiore and the instant case differ in that the former treats of 8(a)(1) discharges while the latter treats of 8(a)(5) violations . The Board has yet to apply a Laura Modes-type remedy involving disparagement only, rather than violence, in an 8(a)(5) case, and more particularly not where the refusal to bargain flies in the face of a prior official certification as it does here. Respondent, arguing in the alternative that the Board in Monteflore Hospital (243 NLRB at 683-684) suggests that a special rule may be appropriate for emergency sit- uations, points to the footnote in the following quotation: The remaining question then is whether the con- duct of Doctors Gold and Fisher fell within these bounds of legitimate picketing conduct. We find that it did. First, as we have found above, the state- ments of these two doctors did not constitute medi- cal advice or disparagement of Bathgate 's services. Further, their statements were of a sort which any of the pickets in the circumstances could have made as a reflection of their honest opinion of the impact of the strike. We see no reason, therefore, to penal- 1175 ize Gold and Fisher for making picket line remarks of this nature wholly because of their professional standing. Nothing in the Act requires pickets or those re- sponsible for the picketing to act as an insurer, that is, to take steps to insure that customers , patients, or others obtain the affected services or product else- where . And this is so even where, as here, the non- emergency services provided by the picketed estab- lishment contribute to maintaining the health of members of the local community and constitute one of the many services which people need to obtain in the course of their daily lives. Thus, if any of the patients at Bathgate at the urging of the two doc- tors chose to forgo treatment at that clinic, it was a choice they made voluntarily . They were not forced to do so. Further, to the extent any of them failed to follow through and seek medical treatment elsewhere , that also was their choice and responsi- bility. That they were inconvenienced as a result does not impose an obligation on the picketing doc- tors to provide the health service sought or to insure that the patients would obtain treatment. For such adverse effects of picketing, as already noted, are to be expected and were clearly foreseen by Congress. Contrary to the Administrative Law Judge, therefore, we perceive no reason to require picket- ing doctors to make even a tentative diagnosis of the medical condition of patients before urging them to seek care elsewhere . It is clear that the treatment or health service sought was not of an emergency nature. a "There is no contention here that Gold and Fisher sought to turn away any cases which would be described as emergencies. Furthermore, it is unlikely that any physician would advise a pa- tient seeking emergency treatment to go elsewhere for that treat- ment because the facility is not at full strength. If the situation does arise we will deal with it in the context in which it occurs. This reference must also be read in light of what the Board stated in a preceding paragraph quoted below (243 NLRB 683): By its very nature, picketing is designed to dis- suade third parties from patronizing the picketed es- tablishment , whether the picketing is directed at a retail or industrial establishment or, as here, a health care institution . Further, the picketing may accom- plish its purpose by causing customers or others, such as patients, to refuse to cross the picket line or to avail themselves of the products or services, whatever such might be, at the affected facility. In this regard picketing and its effect make no distinc- tion between establishments which provide nones- sential goods or services or those which furnish products or services which are essential to an indi- vidual's or community's continued well-being, such as food and health care. Thus, as a consequence of picketing, individuals may be deprived of the goods or services supplied by the picketed establishment, whether essential or not, or whether the deprivation 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is a result of their own choice or the choice of others not to do business with the struck facility.4 4 It follows, therefore, that the essential nature of the service provided is not the key to the issue presented Read in its entirety, the Board's language gives little comfort to Respondent's theory. Although the Board plainly limited its decision to the specific issues before it, it did not intimate, directly or indirectly, that it might in the future entertain a limitation of bargaining rights be- cause of disparagement. In any event, the record in the present matter does not reflect the existence of any medi- cal emergency which occurred during, or was exacerbat- ed by, any strike action. As noted earlier, Tellefsen was apparently in need of care but it is not shown that an emergency existed. Respondent's point is that emergen- cies might exist and go undetected. That is a tenuous basis for withholding the normal remedy allowed under the Act. Secondly, withholding the usual remedy in a discrimi- nation case such as Montefiore Hospital is one thing, but withholding a bargaining remedy in a refusal-to-bargain case from a certified union representing all employees in the unit is quite another. As the Board noted in Laura Modes, the employees' rights to representation survive a union's misconduct. Unlike Laura Modes, the present case contains no at- mosphere of coercion of employees in their free choice of a representative. The Board there looked to a remedy filtering out all trace of coercion and thereafter an elec- tion. Here the Union has already passed through the fil- tering of a representation procedure, emerging with the imprimatur of official certification. It is this process that Respondent continues to oppose with its affirmative de- fense. I conclude that where, as here, a health care facility refuses to honor Board certification of a union to repre- sent its employees, thereby precipitating a peaceful strike in protest thereof, the doctrine of Laura Modes should not be extended to disqualify the union as the employee representative on the ground that the union and its pick- ets in the course of the strike disparaged the quality of care in the facility. Accordingly, Respondent's affirma- tive defense lacks merit. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section II, above, occurring in connection with the oper- ations described in section I, above, have a close and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) and a health care institution within the meaning of Section 8(g) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time professional em- ployees, including registered nurses employed by the Employer at its 3530 Fleming Street, Pittsburgh, Pennsylvania, facility, and all full-time and regular part-time nonprofessional employees, including de- toxification, rehabilitation, outpatient and driving under the influence counselors, the information and education director, the public relations director, li- censed practical nurses, nurses' assistants, unit secre- taries, the medical records clerk, the CIS coordina- tor, the data coordinator, dietary department em- ployees, and housekeeping department employees, including the linen service person and maintenance person; excluding physicians and other professional employees, business office clericals, including the switchboard operator and billing clerk, confidential employees, guards and supervisors as defined in the Act. 4. Since March 26, 1981, the Union, Amalgamated Food Employees Local 590 a/w United Food and Com- mercial Workers International Union , AFL-CIO-CLC has been the exclusive collective-bargaining representa- tive of the employees in the above-described unit. 5. Since May 15, 1981, by refusing to recognize or bar- gain with the Union as the exclusive collective -bargain- ing representative of the employees in the above-de- scribed unit , Respondent has violated Section 8(a)(5) and (1) of the Act. 6. Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act by uni- laterally , without notice to or consultation with the Union respecting the discretionary aspects thereof , taking the following actions: (a) In August 1981 reassigning from unit secretaries to nurses assistants the duty of recording patient tempera- tures , pulse rates, and respiration rates. (b) In August 1981 implementing a system of rotating shifts of nurses assistants between the east and west wings of the ADR Center. (c) In early autumn of 1981 changing the method for determining compensation of counselors. (d) On December 25, 1981 , granting wage and salary increases to employees. 7. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent did not engage in any unfair labor prac- tices not specifically found herein. 9. The Union did not by strike misconduct disqualify itself to represent employees in the unit described above. ST. JOHN 'S HOSPITAL THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, the recommended Order will require that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Because Respondent has unlawfully refused to bargain with the Union in part by unilaterally granting wage in- creases to its employees , Respondent will be ordered to cease and desist from such unlawful conduct, but nothing herein shall be construed as requiring Respondent to revoke any wage increases. As to affirmative action, Respondent should, on re- quest, bargain with the Union about terms and conditions of employment at the ADR Center, and specifically about the discretionary aspects of those matters found herein to be unlawful unilateral changes , including annual wage increases , the method of determining com- pensation of counselors , the assignment of TPR duties, and the rotation of nurses assistants between the east and west wings of the Center. See Hanes Corp., 260 NLRB 557 (1982). On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- eds ORDER The Respondent , St. John's General Hospital of Alle- gheny County-ADR center, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively concerning the size and timing of wage increases , the method of determining compensation of counselors , the assignment of TPR duties, the rotation of nurses assistants between wings of the ADR Center , and other terms and conditions of em- ployment with Amalgamated Food Employees Local 590 a/w United Food and Commercial Workers International Union, AFL-CIO-CLC as the exclusive bargaining rep- resentative of its employees in the following appropriate unit: All full-time and regular part-time professional em- ployees, including registered nurses employed by the Employer at its 3530 Fleming Street , Pittsburgh, 8 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. 1177 Pennsylvania, facility, and all full-time and regular part-time nonprofessional employees , including de- toxification, rehabilitation , outpatient and driving under the influence counselors, the information and education director, the public relations director, li- censed practical nurses , nurses' assistants , unit secre- taries, the medical records clerk, the CIS coordina- tor, the data coordinator , dietary department em- ployees, and housekeeping department employees, including the linen service person and maintenance person ; excluding physicians and other professional employees, business office clericals, including the switchboard operator and billing clerk , confidential employees , guards and supervisors as defined in the Act. (b) 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. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request , bargain collectively in good faith with the above-named Union as the exclusive representative of the employees in the bargaining unit described above concerning wages , hours, and other terms and conditions of employment of those employees and, if an understand- ing is reached , embody the understanding in a signed agreement. (b) Post at its premises in Pittsburgh , Pennsylvania, copies of the attached notice marked "Appendix B."s Copies of said notices , on forms provided by the Region- al Director for Region 6, after being duly signed by Re- spondent's authorized representative , shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material. (c) 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 ORDERED that allegations in the com- plaint of unfair labor practices not specifically found herein are dismissed. 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 the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Copy with citationCopy as parenthetical citation
