Arroyo Grande Community Hospital, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1982

260 N.L.R.B. 1183 (N.L.R.B. 1982)

ARROYO GRANDE COMMUNITY HOSPITAL
Arroyo Grande Community Hospital, Inc. and Retail
Clerks Union, Local 899, United Food and
Commercial Workers International Union,
AFL-CIO. Cases 31-CA-10701 and 31-RC-
4891
March 24, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On November 10, 1981, Administrative Law
Judge Roger B. Holmes issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a brief in opposition to the
exceptions of the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Arroyo Grande Community Hospital, Inc., Arroyo
Grande, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Insert the following after the paragraph
ending with ". . . be dismissed in its entirety":
"IT IS FURTHER ORDERED that Case 31-RC-4891
be, and it hereby is, remanded to the Regional Di-
rector for Region 31 for the purpose of issuing a
revised tally of ballots and a Certification of Re-
sults of Election for the election conducted on
March 6, 1981."
'The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
260 NLRB No. 164
DECISION
RO(;GIR B. Hol M-.S, Administrative Law Judge: Based
on an unfair labor practice charge, which was filed on
December 10, 1980, in Case 31-CA-10701 by Retail
Clerks Union, Local 899, United Food and Commercial
Workers International Union, AFL-CIO, the General
Counsel issued on January 23, 1981, a complaint alleging
violations of Section 8(a)(1) and (3) of the Act by
Arroyo Grande Community Hospital, Inc.
Based upon a representation petition, which was filed
on September 11, 1980, in Case 31-RC-4891, by the
same union, a representation election was held on March
6, 1981, in a unit of the registered nurses employed by
the employer at its hospital. The challenge to the ballot,
which was cast in the election by the alleged discrimina-
tee in the unfair labor practice case, must be resolved be-
cause the revised tally of ballots discloses that the vote
in the election was: 16 votes for the Union, which is the
charging party and the petitioner in this proceeding; no
votes for Hospital and Service Employees Union, Local
No. 399, Service Employees International Union, AFL-
CIO; and 16 votes cast against those two participating
labor organizations. Depending on the resolution of the
challenged ballot, and if the Union achieves a majority
of the valid votes in the final tally, then the Board indi-
cated that it would at that time consider and rule upon
the issues which were raised by the Employer's Objec-
tion 2(b) to the conduct affecting the results of the elec-
tion.
The hearing was held on September 3 and 4, 1981, at
Santa Maria, California. The time for filing post-trial
briefs was extended to October 26, 1981.
FINDINGS OF FACT
1. JURISDICrTIO N AND I.ABOR ORGANIZATION
The Board's jurisdiction is not in issue in this proceed-
ing. The Respondent operates a hospital which is located
at Arroyo Grande, California. The Respondent's oper-
ations meet the Board's jurisdictional standard for health
care facilities.
The status of the Union as being a labor organization
within the meaning of the Act is also not in dispute, and
such status was admitted in the pleadings.
11. THi WITNESSES AND CREDIBILITY RESOLUTIONS
Seven witnesses testified at the hearing in this proceed-
ing. The findings of fact to be set forth herein will be
based on portions of the testimony given by those wit-
nesses. In addition, the findings of fact will be based on
stipulations, were joined in by the parties, and also docu-
mentary evidence, which was introduced by the parties
at the hearing.
In alphabetical order by their last names, the following
persons were called as witnesses at the hearing: Anne
Gaebe Hall, who is the alleged discriminatee in this pro-
ceeding: Barbara Jones, who is a registered nurse and
who was employed by the Respondent at the time of the
hearing as a staff nurse in the intensive care unit; Doro-
thy Roe, who is the personnel and payroll director at the
hospital; Maureen Shannon, who held three positions at
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hospital in June 1980 as relief supervisor, in-service,
and quality assurance supervisor for nursing; Marie
Whitford, who held the position of director of nursing at
the hospital from June 1976 to February 1981, when she
became employed by American Medical International,
Inc., which owns the Respondent hospital and other hos-
pitals; Michael L. Wolfram, who is the attorney for the
Respondent in this proceeding; and Norbert Zimmerman,
who formerly worked for the hospital during the period
from January 1978 to September 1980.
After observing all of the witnesses testify and consid-
ering their demeanor, I have had to make several credi-
bility resolutions because of conflicts in the versions of
the facts given by different witnesses. I will set forth in
the findings of fact the credited accounts, which are
based on the portions of the witnesses' testimony which I
find to be accurate and reliable.
Whitford demonstrated on the witness stand that she
was a knowledgeable witness, and she testified with con-
fidence and assurance in giving her recital of the facts.
Whitford was convincing in her manner of testifying,
and I will rely upon her version of the facts as being the
credible version. In doing so, I am not unmindful that
she made two errors while she was on the stand. One
concerned the date of the meeting with her supervisors
regarding the strike situation. She placed the date as
being June 17, 1980, rather than June 20, 1980, as indi-
cated in her pretrial affidavit. The other error is where
she testified that she did not tell Hall in their June 22,
1980, conversation that she would get back to her with a
response. Whitford acknowledged at that in her pretrial
affidavit she had stated, "At the end of the conversation,
I told Hall I would get back to her with a response, but
I urged her to reconsider her decision." Considering the
span of time between those events in June 1980, and the
time that Whitford testified on September 3 and 4, 1981,
1 am not persuaded that Whitford's otherwise believable
testimony at the hearing should be discredited. Accord-
ingly, I continue to accept her account of the facts, with
the two exceptions noted above, where the affidavit pro-
vides a more accurate account which was given closer in
time to the occurrence of the events.
Having accepted the testimony of Whitford as being
credible, I cannot accept other testimony which contra-
dicts her account. In particular, this applies to certain
testimony given by Hall and certain testimony given by
Zimmerman. Therefore, I have relied on the portions of
Hall's testimony only with regard to her union activities
in support of the California Nurses Association and her
description of her job duties and responsibilities.
The General Counsel acknowledges "that Zimmerman
was somewhat confused about his dates" regarding a
conversation between Zimmerman and Whitford and a
conversation between Zimmerman and Hall. The Gener-
al Counsel offers a rationalization of the inconsistency
between Zimmerman and Hall, which theory adopts
Hall's version. (See fn. 8 on p. 5 of the post-trial brief
filed by counsel for the General Counsel.) The attorney
for the Respondent urges, "Zimmerman's testimony
about the call is confused and both internally inconsistent
and inconsistent with Hall's testimony." He further
argues, "These inconsistencies and conflicts with undis-
puted facts deprive the testimony about the Whitford-
Zimmerman telephone call of any value." (See pp 27-29
of the post-trial brief filed by the attorney for the Re-
spondent.)
I find that Whitford's testimony on the foregoing
matter is the more reliable version. She placed the tele-
phone conversation between her and Zimmerman at a
later date which was subsequent to the termination of
Hall. In this connection, Zimmerman also related a tele-
phone call between those two persons at a later date.
With regard to the other testimony offered by Zimmer-
man, I have relied on his account of an earlier change in
his own status from a supervisory position to a staff
nurse position, which also finds support in General
Counsel's Exhibit 11.
With regard to the conflicts between the testimony of
Hall and the testimony of Roe, I found Roe's account to
be more credible, particularly in light of the discussion
above regarding Hall's conflicts in testimony with Whit-
ford.
A. The Stipulated Facts
The lawyers for both parties are to be commended for
their efforts, prior to the opening of the hearing, to
arrive at stipulations of fact regarding matters which
were not in issue in this proceeding. Their efforts result-
ed in 13 agreed-upon stipulations of fact. Those stipula-
tions are contained in one document, which was intro-
duced into evidence as General Counsel's Exhibit 3.
Considerable time and expense was saved as a result of
this pretrial preparation by the attorneys. The stipula-
tions are as follows:
IT IS HEREBY STIPULATED by and among
Counsel for the General Counsel of the National
Labor Relations Board and Arroyo Grande Com-
munity Hospital, Inc., herein called Respondent, as
follows:
1. For purposes of this proceeding only, the par-
ties stipulate that California Nurses Association,
herein called CNA, is an organization which admits
employees to membership and which exists, in part,
for purposes of dealing with employers concerning
wages, hours, and other terms and conditions of em-
ployment.
2. Respondent is owned or a subsidiary of Ameri-
can Medical International, Inc., herein called AMI.
3. AMI owns and operates two other hospitals in
San Luis Obispo County. These are French Hospi-
tal and Sierra Vista Hospital.
4. At all times material herein, CNA was the ex-
clusive collective-bargaining representative of the
registered nurses of French Hospital in an appropri-
ate unit.
5. French Hospital and CNA had a collective-
bargaining agreement covering the wages, hours
and other terms and conditions of employment of
the registered nurses at French Hospital, which by
its terms expired on June 25, 1980. Prior to the ex-
piration of the collective-bargaining agreement,
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ARROYO GRANDE COMMUNITY HOSPITAL
French Hospital and CNA engaged in negotiations
for a new collective-bargaining agreement.
6. On June 10, 1980, CNA gave French Hospital
notice, as required by Section 8(g) of the Act, of its
intent to engage in a strike by its registered nurses
commencing on June 25, 1980.
7. On June 17, 1980, CNA gave Sierra Vista Hos-
pital notice, as required by Section 8(g) of the Act,
of its intent to engage in a strike by its registered
nurses commencing on June 30, 1980.
8. On June 24, 1980, CNA gave Respondent writ-
ten notice, as required by Section 8(g) of the Act,
of its intent to engage in a strike by its registered
nurses commencing on July 4, 1980. Also on June
24, 1980, CNA made, in writing, a demand for rec-
ognition as the exclusive collective-bargaining rep-
resentative of the registered nurses of Respondent.
A copy of the notice and the demand for recogni-
tion are [contained in G.C. Exh. 3].
9. On June 25, 1980, the registered nurses at
French Hospital went on strike. Nearly 100% of
the French Hospital RNs participated in the strike.
On June 30, 1980, the registered nurses at Sierra
Vista Hospital went on strike. Approximately 50%
of the Sierra Vista Hospital RNs participated in the
strike. On July 4, 1980, the registered nurses at Re-
spondent went on strike. Approximately 50% of
Respondent's RNs participated. All strikes ended on
July 22, 1980.
10. In San Luis Obispo County there are two
hospitals which are not subsidiaries of AMI. These
are San Luis Obispo County Hospital and Twin
Cities Hospital. At all times material herein all five
hospitals in the county were suffering from a short-
age of nurses.
I1. From June 21, 1980 to and including July 30,
1980, there existed RN staff nurse positions at Re-
spondent's facility which Anne Gaebe Hall was
qualified to fill with a normal amount of orientation.
The parties expressly agree that this stipulation does
not address the issue of whether there were any job
openings in the emergency room, since this issue is
in dispute.
12. From the time Anne Gaebe Hall was appoint-
ed supervisor or head nurse of the emergency room
until June 21, 1980, she was a supervisor within the
meaning of Section 2(11) of the Act. The parties ex-
pressly agree that this stipulation does not address
whether or not Anne Gaebe Hall was a statutory
supervisor from June 21, 1980 until her termination,
since her status during this period is disputed.
13. The person who permanently replaced Anne
Gaebe Hall as the emergency room supervisor had
been a staff nurse in the emergency room prior to
her promotion on September 28, 1980.
1. The events on Friday, June 20, 1980
Whitford held a meeting with her supervisors at the
Respondent's hospital late in the afternoon of Friday,
June 20, 1980. The meeting was prompted by Whitford's
concern regarding the staffing of the hospital with
nurses. The French Hospital and the Sierra Vista Hospi-
tal had received notices of the intention of their nurses to
engage in a strike. (See section A, herein.) French Hospi-
tal had 138 beds and employed from 60 to 65 registered
nurses. Sierra Vista Hospital had 172 beds and employed
about 125 registered nurses. The Respondent had 79 beds
and employed 49 to 50 registered nurses at that time.
There were vacancies among the staff nurse positions at
the Respondent's hospital. If strikes did occur at the
French Hospital or the Sierra Vista Hospital, Whitford
reasoned that it might mean increased patient load at the
Respondent's hospital, or it could mean that nurses at the
Respondent's hospital would be asked to leave the Re-
spondent's hospital and fill in at the other two hospitals
while their nurses were on strike.
Compounding Whitford's potential staffing problem at
that time was the fact that a long holiday weekend was
approaching. Because of the Respondent's geographical
location near ocean beaches, a long holiday weekend
meant an increase in the Respondent's patient load, par-
ticularly in the emergency room. There are five cities in
the geographical area served by the Respondent hospital.
They are: Pismo Beach, Avila Beach, Shell Beach,
Grover City, and Arroyo Grande. In 1980, the Fourth of
July holiday fell on a Friday, and thus a long and busy
weekend was anticipated at the hospital.
At the meeting, Whitford discussed her concerns with
staffing, and she told the supervisors "that I needed their
absolute loyalty at that point in time; that I would expect
them to work as many shifts and as many hours as we
had to in order to keep the community going." Whitford
also explained to the supervisors what they were permit-
ted to do with respect to labor relations matters, and she
told them what they were not permitted to do. She
asked the supervisors to "keep their ears open and report
back to me if there is a great deal of activity that we
should be concerned about." She instructed the supervi-
sors absolutely not to initiate conversations with employ-
ees on what was happening with regard to the CNA
strikes.
Whitford distributed a memorandum to the supervisors
at the meeting. A copy of that document was introduced
into evidence as Respondent's Exhibit 4. In part, it states:
As indicated by the attached memorandum, you
may ask employees whom you supervise whether
they intend to strike or work. This question can be
asked to assist you in planning coverage beginning
Wednesday, June 25th, when the strike at French
Hospital is scheduled to start.
It is very important for you to follow certain guide-
lines strictly in questioning employees:
1. Do not threaten or coerce any employee in any
way.
2. Do not suggest in any way that an employee's
job would be jeopardized if he or she engaged in
a strike.
3. Do not question employees about anything con-
cerning the union or strike except whether they
intend to work and, if not, when they intend to
1185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike; you may listen, of course, to anything on
these subjects that employees volunteer to you.
4. Do not ask employees in groups whether they
intend to strike and when-ask this question in a
one-to-one conversation.
5. Do not question employees in any supervisor's
office.
6. Do let the employee know in some way that a
response to your questions is voluntary but
would be appreciated to assist scheduling.
Also on Friday, June 20, 1980, a memorandum was
distributed by the Respondent to all of the employees at
the hospital. A copy of that document was introduced
into evidence as Respondent's Exhibit 5. In part, it states:
The hospital has been told by some employees that
they intend to strike in support of striking French
Hospital nurses. The hospital has an obligation to
the community and its patients to insure the con-
tinuation of patient care if a strike does occur. In
order to do this, we must begin planning work
schedules for the strike period. Thus, you may be
asked in the next few days, or you may already
have been asked, by your supervisor or someone
else in the administration whether you intend to
strike and when.
The purpose of this question, of course, is to assist
our planning of work schedules. You are free to
make your own decision on whether to strike or to
work. No reprisals will be taken against you what-
ever your decision may be.
I hope that you will inform us of your intention if
you are asked, but if you choose not to respond to
the question, the hospital will respect your choice
and take no reprisals against you.
That same evening Hall decided to resign her supervi-
sory position at the hospital. Hall composed a letter
which she intended to submit the next day to the Re-
spondent. She discussed her intentions with a doctor at
the hospital and also with Mona Schultz and Sylvia
Lyons, who were nurses working in the emergency
room at the hospital. She also discussed the matter with
Zimmerman at his house.
2. The events on Saturday, June 21, 1980
On Saturday, June 21, 1980, Maureen Shannon was
working as supervisor of nursing. She was advised by
Eva Logan, who was head of the medical records de-
partment, that she had typed a letter of resignation for
Hall. About 25 or 30 minutes later, Hall gave her letter
to Shannon in the hallway. Shannon testified, "There
were no words exchanged, that I can recall. She just
really kind of thrust it at me. She was in a hurry."
A copy of Hall's letter was introduced into evidence
as General Counsel's Exhibit 4. In part, it states:
As of today, June 21, 1980, I am resigning my posi-
tion as Supervisor of the Emergency Department.
Current events make me realize I would be more ef-
fective in a staff position. I am available to continue
working in the Department as scheduled.
Shannon took the letter into Whitford's office; she
read the letter and then telephoned Whitford. Shannon
testified:
I reached Mrs. Whitford at the bowling alley,
where I knew she would be, and I verified that I
had her and that she could hear me, because bowl-
ing alleys are kind of noisy, and she said that she
could hear me, and I said, "Anne Gaebe Hall has
resigned. She has turned in a written letter." And
she said, "You are joshing," and I said, "No, do you
want me to read the letter?" She said, "Yes." I read
the letter in its entirety, and I said, "What do you
want me to do?" And she said, "Nothing, I will
take care of it." I said, "Do you want me to notify
Mr. Palczer?" She said, "No, I will take care of ev-
erything, Maureen. Thank you very much."
And the conversation ended. She did instruct me
where to put the letter.
A portion of the Employer's personnel handbook for
employees, which was in effect in June 1980, was intro-
duced into evidence as Respondent's Exhibit 6. In part, it
states with regard to resignations submitted by manage-
ment personnel, "Employees holding managerial posi-
tions, as determined by administration, are required to
give a minimum of four weeks' notice."
Hall had worked for the hospital since August 1974.
She was: a medicine nurse on the surgical floor; head
nurse on the surgical floor; nurse in the recovery room;
relief nurse in the emergency room; staff nurse in the
emergency room, and since 1976 supervisor of the emer-
gency department.
3. The events on Sunday, June 22, 1980
About 11 or 11:15 a.m. on Sunday, June 22, 1980,
Whitford arrived at the hospital where she and Hall had
a conversation in the emergency room lobby.
Whitford asked Hall if she knew what she was doing,
and Whitford expressed the view that Hall was "overre-
acting." Hall replied that she wanted to know more
about the issues. Whitford said that she would be glad to
fill her in regarding what was taking place at the French
Hospital. Whitford also asked Hall if she had consulted
with Dr. James, and Hall said yes. Whitford told Hall
that she would get back to her with a response. Whitford
also urged Hall to reconsider her decision.
Whitford denied at the hearing that she had told Hall
on that occasion that she accepted her resignation, and
that Hall could continue working as a staff nurse.
Following her conversation with Hall, Whitford tele-
phoned the hospital administrator, Louis Palczer, and in-
formed him of the conversation with Hall. Palczer told
Whitford that the next step was up to Hall. Whitford
agreed and told him that she had better consult with the
hospital's labor relations attorney.
Later that afternoon, while Whitford was riding in her
car on her way home, she reached the conclusion that
she could not accept Hall's resignation. Whitford testi-
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ARROYO GRANDE COMMUNITY HOSPITAL
fled, "Well, as I told you previously, my biggest problem
facing Arroyo Grande Hospital was staffing, particularly
as we were getting onto the beginning of French's strike,
Sierra Vista's, and, at that point in time, my crucial con-
cern was that I was going to have management people to
keep that place going, and I felt that she was bugging
out on me."
4. The events between June 22 and 27, 1980
On Monday morning, June 23, 1980, Shannon asked
Whitford what decision she was going to make with
regard to Hall's letter of resignation. According to Shan-
non, Whitford replied, "I don't think I will accept it."
Whitford also spoke with Eva McClure, who was the
assistant director of nurses, and informed her of what
was taking place regarding Hall. Whitford told McClure
that she did not think that she was going to accept Hall's
resignation, but that she would await advice from legal
counsel.
Either on Monday, June 23, 1980, or Tuesday, June
24, 1980, Roe went into Whitford's office and asked her
what they were going to do about Hall's letter. Accord-
ing to Roe, Whitford replied "Nothing," and she told
Roe that Roe was to wait until decisions were made.
Whitford said that she would inform Roe when such de-
cisions were made.
While attorney Wolfram was in the San Luis Obispo
area and conferring with management personnel at the
French Hospital and the Sierra Vista Hospital, he re-
ceived a telephone call on either Monday, June 23, 1980,
or Tuesday, June 24, 1980, from Whitford. Wolfram tes-
tified:
On either Monday afternoon, June 23rd, or possi-
bly Tuesday morning, June 24th, I received a tele-
phone call from Mrs. Whitford at French Hospital,
and she said, "Mike, over the weekend, one of my
Head Nurses turned in a resignation, but she wants
to continue working as a Staff Nurse, and I don't
want to accept that resignation and let her work as
a Staff Nurse, because I don't know what our situa-
tion is going to be and how many people we are
going to need in the event the Nurses walk out of
here."
I said, "Well, what is a 'Head Nurse?' What do
they do at Arroyo Grande Hospital?" And she pro-
ceeded to describe for me the functions performed
by Head Nurses at that Hospital. I said, "Marie,
what has been the practice in the past? Do you
allow employees and Supervisors to pick their posi-
tions at the Hospital, or do you retain some control
over what positions they fill, according to what
your particular needs are?" She says, "Well, of
course I retain control and decide what they are
going to do."
I said, "Marie, I think, from what you have told
me, that this Head Nurse appears to be a Supervi-
sor, and if she is a Supervisor, I think that, given
your needs, you don't have to accept the resigna-
tion and put her in a staff position, but I don't want
you to do anything now, because I have read re-
cently of some cases that maybe will cause me to
rethink what the legal rights and what your legal
responsibilities are towards statutory Supervisors."
Wolfram advised Whitford not to do anything until
she had heard from him on that matter. Wolfram then
telephoned an associate in his law office in Los Angeles,
and he requested that the associate research some recent
decisions and advise him of the holdings.
During the time period covered by this section, Roe
had two conversations with Hall. Roe recalled that Hall
telephoned her on one occasion and inquired whether all
of the staff nurses had to punch timecards. Roe respond-
ed, "Yes, but . . ." at which point Hall hung up the tele-
phone. On another occasion, Hall asked Roe what she
would be earning. Roe told her that she could not
"quote a definite figure, but it would have been 14 per-
cent more than she was earning at that time."
As part of her duties as the personnel and payroll di-
rector at the hospital, it was Roe's responsibility to pre-
pare the necessary papers, such as payroll change forms,
regarding an employee's change in status. During the
week involved in this section, Roe did not receive any
instructions from anyone to change Hall's status or Hall's
pay rate, nor did Roe actually prepare such change of
status paperwork.
During the week covered by this section, Hall contin-
ued to work on 4 days in the emergency room. Hall was
not replaced that week in her supervisory position. Nev-
ertheless, Hall asserted at the hearing that she did not
perform any supervisory functions during those 4 days.
Prior to June 21, 1980, her supervisory tasks only took
up about 25 percent of her working day, because 75 per-
cent of her %worktime was spent on the same duties as
were performed by nonsupervisory staff registered nurses
in the emergency room. She acknowledged at the hear-
ing during cross-examination that certain supervisory
functions, which she had performed in the past, did not
arise during the 4 days that she worked that week. For
example, the work schedule for the month of July had
already been prepared and turned in by Hall about June
15, 1980. Although Hall said that her work schedule had
not been complete, she agreed that "I had done all that I
could do." Since the work schedule for August would
not have been submitted until about July 15, 1980, that
supervisory function was not required to be done during
the week in question. As a supervisor, Hall had attended
the emergency care committee meetings. Those meetings
had been held only once a month, and there was no
emergency care committee meeting schedule to be held
that week. Thus, that particular supervisory duty was
not required to be done that week. As a supervisor, Hall
had performed employee evaluations, but no employee
evaluations were scheduled to be done that week. There
were no overtime hours worked that week to be ap-
proved and there were no "call-ins" which had to be ar-
ranged by her. Hall did not recall that any suppliers
were ordered for the emergency room that week, but, in
any event, a nonsupervisory staff nurse had the authority
to do so if it were necessary. Hall did decline to approve
a change in days off, which two staff nurses had desired
to make that week. Hall told the nurses that she did not
do that function any more.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whitford was not aware that week that Hall was per-
forming her duties any differently from the way Hall had
performed in the past. Whitford did not observe Hall
punching a timeclock. However, in the course of Whit-
ford's duties, she normally reviewed the timecards only
of head nurses and supervisors. Whitford did review and
initial Hall's timecard for the week ending June 27, 1980.
During the time period involved in this section, Hall
continued her activities in support of the California
Nurses Association. Prior to that time, she had discussed
the CNA with staff nurses and with supervisors. She had
also posted articles at the hospital with regard to CNA,
and she continued to do so that week. Hall held a meet-
ing of staff nurses at her house on Manday, June 23,
1980. Authorization cards for the CNA were signed at
that time, and also a petition was signed.
Whitford said at the hearing that she was not aware
from any source or in any way that Hall had held meet-
ings at her house in connection with CNA. She was also
unaware that Hall had signed a union authorization card
or that Hall had voted to go on strike. She did not ob-
serve Hall posting any materials at the hospital relating
to CNA or a strike, and she did not hear about Hall
having done so until "months later." Hall acknowledged
at the hearing she did not recall ever seeing Whitford
observe her when Hall was posting notices regarding
CNA at the hospital. Hall also acknowledged that Whit-
ford had not been present when Hall spoke with other
persons regarding the CNA. Hall also stated that she did
not tell Whitford that Hall felt that a union would be a
good thing at the hospital and that Hall favored the
Union.
5. The events on Friday, June 27, 1980
Between 5 a.m. and 6 a.m. on Friday, June 27, 1980,
Whitford and Roe met in Whitford's office at the hospi-
tal to begin the preparation of the payroll for 180 to 200
employees. Usually, the paychecks were distributed at 3
p.m. on Thursdays, but due to the negotiations taking
place at the French Hospital, it was not possible to do
so. The Arroyo Grande Hospital and the Sierra Vista
Hospital were going to adopt the new wage rates being
negotiated at the French Hospital. Roe explained that
she had spent 12 hours the previous day in meetings.
Roe testified, "Well, I had brought the scales back with
me, and I was told that we were going to put slips in the
paychecks in the morning to be handed out to the em-
ployees at 7 o'clock, and so therefore we had about 180
to 200 slips to figure and write." Thus, the preparation of
the payroll and the payroll slips to accompany the
checks began early in the morning of Friday, June 27,
1980, in order to meet the 7 a.m. goal for distributing
those documents.
During the preparation of those documents that morn-
ing, Hall's name came up. Whitford testified, "Since
Anne's status was up in the air, waiting for Anne to
make a decision, Dottie had said to me, 'What if Anne
was a Staff Nurse?' And I said, 'Well, how many years
has she been here?' And she said, 'Since 1974 on,' or
something like that. And I said, 'She has to go to Step 5,'
and it would have been a Step 5 Supervisor. It was as
simple as that." However, the payroll slip for Hall, Gen-
eral Counsel's Exhibit 6, reflects the notation "#5 Staff
Nurse" and it had the new wage rate of $9 an hour for
that position. Whitford explained, "Well, the only thing
that I can think of that I did was, I took the Staff Nurse
wage form, instead of Supervisor, and transcribed the $9.
Now, the shift differential and the on-call pay was stand-
ard, regardless, and that was on both scales, and I just
simply transcribed Step 5 Staff Nurse instead of Supervi-
sor." Whitford also pointed to the fact that they were
not finished with the preparation of the payroll by 7
a.m., and that employees were lining up outside of Whit-
ford's office. Whitford requested that her secretary come
in to assist her and Roe. Whitford was not aware of the
error until after December 4, 1980, when Hall produced
copies of what later became General Counsel's Exhibit 6
and General Counsel's Exhibit 9 to the Respondent's at-
torney.
After receiving the information which he had request-
ed from his law office associate, attorney Wolfram tele-
phoned Whitford on Friday, June 27, 1980. Wolfram tes-
tified:
Friday morning, sometime in the morning, I
called Mrs. Whitford, and I said, "Marie, I have
checked out what my concern was, and my conclu-
sion is that you are free to, and within your legal
rights, to refuse to accept a self-demotion of a Head
Nurse to Staff Nurse." And she said, "Okay. Well,
then I am going to go ahead and tell her what I
told you before I was going to do, if it was okay;
that she can stay on as Head Nurse, because I need
my management personnel, but if she doesn't stay
on, then I am not going to allow her to be a Staff
Nurse."
And we discussed the wording of a memorandum
or a letter to Mrs. Hall.
And that was the conclusion of the conversation,
and I don't think I followed up on it at all, except
sometime the next week, I am sure I asked whether
she had sent the message to Mrs. Hall, and what the
result had been.
I think, in the same conversation, on Friday the
27th of June with Mrs. Whitford, or possibly in a
separate phone call that morning, she said that she
had received a resignation almost identical to the
earlier one from another Head Nurse on the Surgi-
cal Floor and wanting to know if she could respond
the same way as she was responding to Mrs. Hall,
and I asked, "Does this other Head Nurse have the
same duties and responsibilities that you described
to me as those of Head Nurses earlier in the week?"
And she said, "Yes." I said, "Well, then you can
take the same position. That is within your rights to
do."
And that was it.
The other head nurse referred to by attorney Wolfram
was named Emily Roese. Between 8:30 a.m. and 9:30
a.m. on Friday, June 27, 1980, she had submitted a memo
which was essentially the same as the one which Hall
had submitted on June 21, 1980. Whitford wrote a letter
to Roese which was almost identical in content to the
1188
ARROYO (GRANDE COMMUNITY HOSPITAl
one which Whitford sent to Hall, and which will be de-
scribed below. After receiving the letter, Roese and an-
other staff nurse went to Whitford's office and submitted
a second memo to her. According to Whitford, Roese
told her, "that she still would feel more comfortable in a
staff position, asking for immediate resignation from her
Medical Unit Head Nurse position." Roese's employment
was terminated about lunchtime that day. Whitford testi-
fied, "She was no different than Anne, in a supervisory
status, and I was treating them both the same."
With regard to Hall's situation that day, Whitford tes-
tified, "I had not heard back from Anne on what her de-
cision was. I had already received a strike notice, and it
was Friday. I had until, I think, Wednesday of the next
week to get my act together with staffing, and I wanted
to know what her decision was going to be before the
weekend." Whitford prepared a memo to Hall, and she
had it delivered to Hall by taxi that same day. A copy of
that memo was introduced into evidence as General
Counsel's Exhibit 7. In part, it states:
Your memorandum of June 21, 1980 has been re-
ceived. Please be advised that you have been em-
ployed as Emergency Room Supervisor, a manage-
rial position. Our need for you is in this position
and no other.
If you do not wish to continue in this position, we
will be forced to terminate your employment.
Please notify me of your decision before your next
scheduled day to work.
After receiving the memo from Whitford, Hall ac-
knowledged that she understood that she could return to
work at the hospital as a supervisor. However, at the
hearing she said that would not do because she wanted
to work as a staff nurse. After receiving the memo, Hall
held another meeting regarding the CNA at her house
that afternoon.
6. The events on Saturday, June 28, 1980
Hall submitted another memorandum on Saturday,
June 28, 1980. A copy of that memo was introduced into
evidence as General Counsel's Exhibit 8. In part, it
states:
Your memorandum of June 27, 1980 has been re-
ceived. As I stated in my letter to you, I would feel
more comfortable and feel I would be more effec-
tive in a staff position.
I would appreciate a statement from you as to
the reasons for my dismissal.
Thank you for your reply.
Also that day, Hall asked Roe for her timecard while
they were in the coffeeroom. Roe replied that she had
already taken care of it. Hall asked whether Roe was re-
fusing to give her timecard to her. Roe said no.
On the way to the emergency room, Roe made a pho-
tostatic copy of Hall's timecard. A copy of that photo-
stat was introduced into evidence as Respondent's Exhib-
it I. A copy of Hall's timecard, which reflects certain en-
tries made by Hall on the card, was introduced into evi-
dence as General Counsel's Exhibit 5.
Roe was the one who prepared the final paycheck for
Hall. Roe testified, "Well, I received a telephone call
that I was to prepare her final checks, and I took the
little salary card from the index, and there was a little
penciled figure that said '9.00' in the corner, and in my
haste, I paid off all her benefits and wages at $9.00." A
copy of the attachment to Hall's paycheck was intro-
duced into evidence as General Counsel's Exhibit 9. It
had been sent in the mail to Hall.
As indicated in stipulation 13 in section A, herein,
Hall's supervisory position in the emergency department
was not permanently filled until September 28, 1980.
Coleen McClain was the one who became Hall's perma-
nent replacement. Prior to that time, Candy Pierce, who
was department head of the cardiac rehabilitation unit,
served as the acting head nurse in the emergency depart-
ment.
At the hearing, Whitford acknowledged that at the
time of Hall's termination she was concerned about a
shortage of nurses due to the strike situation, and she
was worried as to how she was going to staff the hospi-
tal. Whitford further acknowledged at the hearing that
she would not have terminated Hall if Hall had agreed
to remain in her supervisory position. She gave her opin-
ion of Hall as a supervisor as being "fair." She gave her
opinion of Hall as a nurse generally as being "technically
excellent." She gave her opinion of Hall as an emergen-
cy room nurse as being "good."
In summary, Whitford gave the following reasons for
not employing Hall in a nonsupervisory staff nurse posi-
tion at the hospital at that point in time: (1) management
personnel were needed to run the hospital in the event
there was a strike of employees at the hospital; (2) a
person who has been in a management position and goes
to a staff nurse position "does not always keep the confi-
dences that are within the Nursing management struc-
ture"; (3) the difficulty at times for people to give up the
authority which they previously have enjoyed: (4) the
difficulty for other supervisors in being required to su-
pervise a former supervisor; (5) the acceptance of the
former supervisor by her new peers is not what it should
be; (6) Whitford's opinion that Hall "was taking the easy
way out" after Whitford had told the supervisors and
head nurses that the hospital was desperately going to
need them not only because of the strike, but also be-
cause of the expected caseload due to the long holiday
weekend, (7) Whitford's concern that, if she permitted
Hall to go from a supervisory position to a staff nurse
position, other supervisors and head nurses also would
follow Hall's action.
B. The Matters Pertaining to Jones, Zimmerman. and
Dillard
There were only three or four instances where a su-
pervisor had been permitted to transfer from a supervi-
sory position to a nonsupervisory staff position. Whitford
recalled three of those persons by name. They were:
Barbara Jones, Bert Zimmerman, and Aranda Dillard.
1189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones made such a request by letter dated January 29,
1978. A copy of her letter was introduced into evidence
as General Counsel's Exhibit 12. At the time of her
letter, Jones held three different positions. They were: in-
service director; relief day supervisor; and infection con-
trol nurse. For some time after she submitted her letter,
Jones continued to work on a day-to-day basis in her su-
pervisory positions. Jones explained, "I came to be reas-
signed to a staff position as Mrs. Whitford saw fit. As I
outlined in my letter, I agreed to be assigned on a daily
basis, with Mrs. Whitford, as Director, setting priorities,
which she must, and I received those assignments each
day, and, over a period of months, I gradually was re-
lieved of my duties, all but staff position. And I was
eventually allowed the privilege of clocking in on a daily
basis." (See G.C. Exh. 13 regarding the instructions to
Jones concerning her timecard.) There was no strike sit-
uation pending at the time of Jones' letter.
General Counsel's Exhibit 11 reflects the personnel
history of Zimmerman. He worked for the Respondent
during the period from January 9, 1978, to October 18,
1980. He began his employment at the hospital as a su-
pervisor, but his status was changed to a staff position on
March 6, 1978, at Zimmerman's request. He was immedi-
ately replaced in his supervisory position by Mary Lou
Powers. There was no change in his rate of pay at that
time, but Zimmerman said that he began to punch the
timeclock. There was no pending strike at the hospital at
the time of Zimmerman's change in status.
General Counsel's Exhibit 10 reflect the personnel his-
tory of Dillard. She worked for the Respondent during
the period from August 17, 1974, to May 15, 1977, when
she voluntarily quit work. She became the head nurse in
unit B on November 3, 1974, and she became a day su-
pervisor in nursing administration on October 31, 1976.
She received a written warning regarding her job per-
formance on January 5, 1977. (See the letter attached to
the warning notice for the details.) On April 3, 1977, Dil-
lard was transferred from her day supervisor position to
a staff position. There is no evidence, nor any conten-
tion, that a strike situation was pending at the time of her
transfer.
Conclusions
As the facts show set forth in section 3, herein, Hall's
unilateral decision to resign her supervisory position and
to transfer to a nonsupervisory position of staff nurse
was not accepted by Whitford. Instead, Whitford said
she would get back to Hall later, and she urged Hall to
reconsider her decision. As the facts show in section 4,
herein, Hall's status was not changed by the hospital in
its personnel records during her last week of employ-
ment. Hall continued to work on 4 days that week at the
hospital, and Whitford was unaware that Hall was per-
forming her duties any differently than before. It will be
remembered that about 75 percent of Hall's working
time prior to June 21, 1980, was spent performing duties
which nonsupervisory registered nurses also performed,
and that some of her supervisory responsibilities did not
need to be taken care of during her last week of employ-
ment. For example, the work schedule for the following
month had been prepared by June 15, 1980, and, for ex-
ample, no employee evaluations were due to be done
that week. The single instance of Hall's declining to ap-
prove an exchange of days off by two nurses appears to
be the only supervisory function which arose that week
which Hall failed to perform. The evidence does not
show that Whitford was even aware of Hall's refusal to
handle that matter.
As set forth in section 5, herein, the new payroll and
accompanying payroll slips were prepared on a rush
basis with apparent haste. The checks were already late
since the checks were normally distributed to employees
about 3 p.m. on Thursdays. Whitford and Roe arrived
early at the hospital to attempt to make the distribution
by the 7 a.m. goal. Considering the circumstances under
which the 180 to 200 payroll slips were prepared, I con-
clude that the payroll slip for Hall should be given less
weight in this matter. Similarly, Hall's final check, as de-
scribed in section 6, simply perpetuated the error, which
had resulted from the hasty preparation of the payroll
slips on the prior morning.
Without repeating all of the findings of fact which
have already been set forth earlier, I conclude that the
evidence shows that Hall continued to be a statutory su-
pervisor during her last week of employment with the
hospital. Thus, at the time of her termination, I conclude
that Hall was a supervisor, and that her termination by
the Respondent did not violate Section 8(a)(1) and (3) of
the Act under the circumstances present in this case.
Turning now to the alternative theory urged by the
General Counsel, it will be remembered that the Re-
spondent treated Emily Roese in the same manner that it
treated Hall. (See section 5, herein.) There is no indica-
tion that Roese engaged in union activities, however, and
there is no allegation that the Respondent discriminated
against Roese. The situations regarding Jones, Zimmer-
man, and Dillard are described in section B, herein.
However, the Respondent points out persuasively that
there was no strike situation pending at the time of those
changes from supervisory status to nonsupervisory status,
and the warning given to Dillard suggests another reason
for her change in status. Thus, I conclude that the Re-
spondent has shown that those persons were changed
into nonsupervisory positions under different circum-
stances than existed when Hall attempted to change her
status.
As set forth in section 6, herein, Whitford has given
several plausible reasons as to why she would not
employ Hall in a staff nurse position under the circum-
stances which existed at that point in time. Her reasons
must be viewed in the light of her urgent appeal to the
supervisors, as described in section 1, herein, for their
help in staffing the hospital during the anticipated in-
crease in patient load due to the potential strike situa-
tions and the long holiday weekend. Thus, Whitford's
opinion that Hall "was bugging out on me" indicates that
Whitford felt that Hall was avoiding her responsibilities
at a time when the hospital needed her most.
The Board stated in Hanover Industries, Inc., 246
NIRB 656, 657 (1979), "Finally, while evidence of union
animus or other unfair labor practices is not necessary to
support a finding of an unlawful discharge, we cannot
1190
ARROYO GRANDE COMMUNITY HOSPITAL
help but note that Respondent was not found to have en-
gaged in any other unfair labor practices in this proceed-
ing." That observation is valid here because the evidence
does not establish that the Respondent harbored animus
against its employees' organizational rights, and there is
no evidence here, nor even any allegations, that the Re-
spondent committed any other unfair labor practices.
After considering all of the foregoing, I conclude that
the reasons given by the Respondent for its refusal to
employ Hall in a nonsupervisory staff nurse position are
not pretexts to hide a discriminatory motive. Thus, the
situation here is distinguishable from the situation present
in Senftner Volkswagen Corporation, 257 NLRB 178
(1981), where pretexts were found. I further conclude
that the Respondent has established that the refusal to
employ Hall in a nonsupervisory staff nurse position
would have taken place even in the absence of any union
activities or protected concerted activities by Hall.
Wright Lines, a Division of Wright Line, Inc., 251 NLRB
1083 (1980). Therefore, I conclude that a preponderance
of the evidence does not establish that the Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act. Accordingly, I
must recommend to the Board that the General Coun-
sel's complaint be dismissed.
With regard to Case 31-RC-4891, I must recommend
to the Board that the challenge to the ballot cast by Hall
be sustained because she was not an eligible voter in the
representation election held on March 6, 1981. I further
recommend to the Board that a revised tally of ballots be
issued, and that a Certification of Results be issued.
CONCI.USIONS OF LAW
I. The Respondent is an employer engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Charging Party Union and the California
Nurses Association are labor organizations within the
meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the General Counsel's complaint in
this proceeding for the reasons which have been set forth
above.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue this recommended:
ORDER'
It is hereby ordered that the complaint in this proceed-
ing be dismissed in its entirety.
In the event ihat no exceptions are filed, as provided by Sec 102.46
or the Board's Rules and Regulations. the findings. conclusions and rec-
ommended Order herein shall, as provided in Sec 102 48 of the Board's
Rules and Regulations, be adopted by the Board and shall become its
findings, conclusions and Order. and all objections thereto shall be
deemed ualsed for all purposes
1191