Broad Street Hospital

National Labor Relations Board - Board Decisions

May 4, 1970

182 N.L.R.B. 302 (N.L.R.B. 1970)

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Broad Street Hospital and Medical Center and National
Organizing Committee of Hospital and Nursing Home
Employees , affiliated with Local 1199-RWDSU-
AFL-CIO. Case 4-CA-4970
May 4, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On February 11, 1970, Trial Examiner Paul Bisgyer
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also
found that the Respondent had not engaged in certain
other unfair labor practices, and recommended dismissal
as to them Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief,'
and the General Counsel filed cross-exceptions and an
answering brief.
Pursuant to provisions of Section 3(b) of the National
Labor Relations Act, as amended, the National Labor
Relations Board has delegated its powers in connection
with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions, the briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, and hereby orders that Respond-
ent, Broad Street Hospital and Medical Center, Philadel-
phia, Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
' The Respondent has requested oral argument This request is hereby
denied as the record, the exceptions, and the briefs adequately present
the issues and the positions of the parties
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This proceeding, with
all the parties represented, was heard on November
12 and 13, 1969, in Philadelphia, Pennsylvania, on the
complaint of the General Counsel issued on September
19, 1969 ,' as subsequently amended, and the amended
answer of Broad Street Hospital and Medical Center,
herein called the Respondent . In issue are the questions
whether the Respondent , in violation of Section 8(a)(I)
and (5 ) of the National Labor Relations Act, as amend-
ed,2 refused to bargain with National Organizing Commit-
tee of Hospital and Nursing Home Employees , affiliated
with Local 1199-RWDSU-AFL-CIO, herein called
the Union , as the duly designated representative of
the Respondent ' s employees in an appropriate unit; uni-
laterally granted wage increases and instituted vacation
and hospitalization plans without first notifying the Union
and discussing the contemplated action with it; and
promised benefits to undermine the Union . At the close
of the hearing the Union made an oral statement' of
its position on which the other parties commented . There-
after , the General Counsel and the Respondent submitted
briefs.
Upon the entire record, and from my observation
of the demeanor of the witnesses , and with due consider-
ation being given to the arguments advanced by the
parties , I make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent , a partnership3 doing business under
the trade name and style of Broad Street Hospital and
Medical Center, is engaged in the operation of a proprie-
tary hospital in Philadelphia , Pennsylvania , During the
past year its gross revenues derived from this operation
exceeded $250,000. In the same period it purchased,
in the course and conduct of its business , goods and
products valued in excess of $ 10,000 which originated
outside the Commonwealth of Pennsylvania.
It is admitted, and I find, that the Respondent is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
It is conceded that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
' The complaint is based on original and amended charges filed on
July 8 and August 28, 1969, respectively, copies of which were duly
served on the Respondent by registered mail on the dates of filing
2 Sec 8(a)(1) of the Act makes it an unfair labor practice for an
employer "to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7 " Insofar as pertinent, Sec 7
provides that "[e]mployees shall have the right to join, or assist
labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection
Sec 8(a)(5) makes it an unfair labor practice for an employer to
refuse to bargain collectively with the representatives of his employees,"
designated by a majority of them in an appropriate unit
9 At all times material herein, the partnership consisted of Doctors
Abraham Cohen, Jacob Freedman, Jacob Krause, Harold Lefkoe, Jacob
Rosen, Harry Shubin, Edward I Siegel, Raymond Silk, Samuel Sugar-
man, Nathan Steinberg, and Stanley Weinstein Until his death on
April 26, 1969, David Weissman was also a partner and served as
administrator of the hospital
182 NLRB No. 44
BROAD STREET HOSPITAL & MEDICAL CENTER 303
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Recognition of the Union; the card check
During the time of these events, the Respondent's
hospital was managed by two partners, Dr. Harry Shubin,
as medical director, and David Weissman, now deceased,
as administrator, both of whom were responsible to
a five-man executive committee on which they also
served as permanent voting members.' On February
27, 1969,5 the Union notified the Respondent by letter
that a majority of the Respondent's service and mainte-
nance employees had designated the Union as their
collective-bargaining representative and that it requested
recognition. The next day, the Union filed with the
Board a representation petition for an election (Case
4-RC-8172). On or about March 10, John Black, the
Union's area director, and Phillip Baer , its attorney,
met with Administrator Weissman and Company Attor-
neys Jacob Hart and James Leyden at the latter's law
offices. Arrangements were there made for a check
of the Union's authorization cards with the understanding
that, if the Union thereby proved it enjoyed majority
support, Weissman would recognize and bargain collec-
tively with it.
Accordingly, on March 17, the same individuals again
met at the offices of the Respondent's attorneys After
the parties agreed upon the composition of the
appropriate unit , which is substantially the same as
that alleged in the complaint herein and conceded to
be appropriate for collective-bargaining purposes," Attor-
neys Hart and Baer retired to a separate room where
they checked the signatures on the authorization cards
against the Respondent's current payroll and the signa-
tures on the employees' withholding slips. As a result
of the card check, the attorneys determined that the
Union did in fact represent a majority of the employees
in the appropriate unit and so reported to Weissman
and Black. Thereupon, Weissman orally extended recog-
nition to the Union and a date was set for the first
The partnership agreement provides, in pertinent part
6 Administration of Partnership Affairs
The executive functions of the partnership pertaining to medical
matters shall be carried out by a medical director The administrative
functions of the partnership shall be carried out by an administrator
The medical director and the administrator are authorized, jointly,
to execute any and all documents on behalf of the partnership
in the scope of the normal operations of the partnership business
The medical director and administrator shall regularly apprise the
executive committee of their mutual activities, and such activities
shall be subject to approval or veto by the executive committee
Unless otherwise specified, all subsequent dates relate to 1969
Specifically, the unit is described in the complaint as consisting
of
all kitchen employees, housekeeping employees, nurses aides,
practical nurses and pratical nurses licensed through waiver
employed by Respondent at its Philadelphia, Pennsylvania, hospital,
but excluding the chief cook and assistant cook in the dietary
department, registered nurses, licensed practical nurses, administra-
tive employees and supervisors as defined in the Act
bargaining conference. Although Black requested a writ-
ten statement of recognition signed by Weissman, which
the Respondent's attorney prepared the next day and
submitted to Weissman for signature, it was not signed
nor was such a statement ever given to Black. However,
as will later be discussed, the parties 2 weeks later
opened contract negotiations. On March 18, at the sug-
gestion of the Respondent's attorneys, Black withdrew
the representation petition he had previously filed.
2 Preliminary discussions; subsequent contract
negotiations
In anticipation of contract negotiations, and at the
request of Administrator Weissman, Union Representa-
tive Black conferred with him and Dr. Jacob Freedman,
a partner, on March 20, to consider the parties' future
relationship. Black was informed of the Respondent's
plans to sell the hospital about January 1, 1970, and
its hope that the Union would be moderate in its econom-
ic demands because the amount of profits earned by
the Respondent would determine the hospital 's sales
price. Weissman also suggested that the duration of
any negotiated contract be limited to 9 months, after
which time, when the new owners assumed control,
the Union could seek a more favorable agreement. This
led to a general discussion of various terms and condi-
tions of employment in which the Union was interested,
with details to be worked out at subsequent bargaining
meetings.
The first bargaining session was held at the hospital
on March 31 or April 1.7 In attendance were Weissman
and Dr. Shubin on behalf of the Respondent and Black
and a committee of five employees representing the
Union. At the outset, the parties agreed to revise slightly
the composition of the bargaining unit in which the
card check had been previously conducted so as to
include several additional employees whose authorization
cards Black produced. After Black submitted a list of
demands and a sample collective-bargaining agreement
to Weissman, the parties discussed various terms and
conditions of employment. Although Shubin did not
remain throughout the entire meeting ," a number of
the Union's demands were considered in his presence,
such as, a nondiscrimination clause, a hiring provision,
and overtime. In addition, Shubin raised the question
whether the Union would interfere with patient care
in the course of settling grievances in the hospital.
Negotiations continued after Shubin's departure.
Shubin testified that, on leaving the meeting, he told
Weissman to gather all the information and that they
would talk it over later in the day. However, he further
testified, when he asked Weissman after the meeting
what had happened, Weissman answered that he was
In view of the presence of the employee committee at this meeting,
the nature of the discussions, and the sequence of events, I find
that Dr Shubin was mistaken in his testimony that this meeting occurred
in the middle of February
" It is not particularly necessary to determine whether Shubin remained
at the meeting about 15 minutes, as he testified, or more, as Black
recalled
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tired and was going home but would talk to him some
other time. According to Shubin, his subsequent efforts
to discuss the meeting with Weissman were equally
futile, with Weissman simply indicating that nothing
of importance occurred there.
Three other bargaining sessions were-thereafter held
at the hospital on successive weeks between Weissman
and Black and the employee committee. Neither Shubin
nor any other management representative participated
in those negotiations . At the last meeting,, on April
21, the parties purportedly reached agreement on all
terms and conditions of employment but, before reducing
their agreement to contract form, Black drafted a memo-
randum of the agreed-upon points which he submitted
to Weissman the next day. Upon receiving Weissman's
approval, Black convened the employees who ratified
the agreed-upon points and authorized the Union to
execute a formal contract.
3. Weissman's death; the Respondent's withdrawal of
union recognition; alleged loss of majority
On April 26, before the final draft of the parties'
agreement could be presented to Weissman for execu-
tion , Weissman died suddenly. Upon learning this, Black
called the hospital and was advised that Dr. Shubin
and Dr. Raymond Silk, another partner, temporarily
assumed Weissman's functions until a successor was
found. On the following Monday, April 28, Black com-
municated with Shubin and informed him that an agree-
ment had previously been reached with Weissman and
that wage increases were about due to go ' into effect
Shubin replied that the hospital was in a state of confu-
sion and requested 2 weeks to secure a new administra-
tor. In the meantime, Shubin suggested, that a copy
of the asserted contract be furnished to Silk and the
Respondent's attorneys.'
Approximately 2 weeks later, Black personally deliv-
ered a copy of the putative agreement to Silk,10 who
stated that he would have company attorneys review
the document, although he did not anticipate any prob-
lems. Black urged prompt action because of the effective
date of the wage increases therein provided Subsequent-
ly, Black telephoned one of the Company: s attorneys
regarding the contract and was informed that an associate
in his firm specializing in hospital matters would review
it. In a later telephone conversation, Company Attorney
Hart told Black that there were several questions of
language he would like to discuss with him. Accordingly,
a meeting was arranged for May 26 to be attended
by John H. Docktor, the newly hired administrator
who had assumed his duties in the middle of May.
However, before the date of the scheduled meeting,
Hart called Black and canceled it on instructions from
Docktor. He told Black that Docktor had advised him
that another union , not otherwise identified, had
Black apparently had a similar conversation with Silk
" Shubin claimed at the hearing that he had never seen a copy
of the purported agreement nor was one submitted to the executive
committee for approval
appeared in Docktor's office, claiming to have a collec-
tive-bargaining agreement which had previously been
consummated with Weissman Hart further commented
that, under these circumstances, it would be best if
the Labor Board adjudicated this matter."
Concerning his reason for canceling the May 26 meet-
ing, Docktor testified that Dr. Silk" told him that he
had heard from Weissman that a Teamsters union was
interested in representing the Respondent's employees
and had made "some overtures." Docktor further tes-
tified that he thereupon conveyed this information to
Attorney Hart and requested him to call off the meeting
to enable him (Docktor) to investigate this rival union
situation. Significantly, no probative evidence was
adduced at the hearing that any rival labor organization,
at any relevant time , had made a claim to represent
the Respondent's employees here involved, much less
that it had entered into a collective-bargaining agreement
with Weissman
There can be no doubt that, following his employment
as administrator, Docktor learned from company counsel
and other sources that the Union claimed to represent
the hospital employees; that a card check had been
conducted establishing the Union's majority status; and
that the Union maintained it had negotiated a contract
with Weissman. In addition, it is conceded that since
about May 26, although requested, the Respondent has
continuously refused to bargain with the Union. When
asked at the hearing for an explanation for his refusal,
Docktor answered that he was confused and needed
more information because there were other unions on
the scene-an assertion undeniably unsubstantiated
On July 8, the Union filed a charge in this proceeding
alleging , among other things, an unlawful refusal to
bargain since on or about May 26. In response, company
counsel sent a letter to a Board agent on July 18 which
stated that the Respondent refused to bargain with the
Union "solely because, on the basis of reliable informa-
tion, the hospital does not believe that the union repre-
sents a majority of its employees." Amplifying its rea-
son, the letter explained that the Respondent's "current
belief that the charging union represents very few of
the employees" was derived from information furnished
by Virginia Ross who, on the basis of conversations
with employees in early June, estimated that approxi-
mately 80 percent of the hospital's 104 employees no
longer wished the Union to represent them. Moreover,
the letter stated, Ross, on her own initiative, prepared
and circulated a petition among the employees canceling
their authorization cards and withdrawing their designa-
tion of the Union to represent them, which petition
was also signed by approximately 80 percent of the
employees.
Docktor testified that he conveyed the above informa-
tion which he had obtained from three employees Speci-
" On May 21, the Union filed a charge in Case 4-CA-4921 , alleging
a refusal by the Respondent to execute a negotiated agreement, in
violation of Sec 8(a)(5) and (1) of the Act This charge was withdrawn
on July 8 when the one in the present case was filed
" Silk was not called as a witness
BROAD STREET HOSPITAL & MEDICAL CENTER
fically, • he related that Margaret Murrell, 'a licensed
practical nurse, and Francis Redman, a maintenance
worker, had told him that they did not want a' union
and that Ross had informed him that she had a number
of signed petitions to the same effect Docktor further
testified that he did not examine the petitions because
he was "afraid" to do so. Admittedly, the three named
individuals are not included in the bargaining unit
4. Docktor's meetings with employees
Docktor held two meetings with employees in the
hospital dining room. The first was within 2 weeks
after he became administrator and the second several
weeks later. When Union Representative Black learned
from employees of the first scheduled' meeting, he
appeared there but was asked to leave by Docktor
because he was not an employee 13
Docktor utilized these occasions'" to introduce himself
as the successor to Weissman, whose sudden death,
he observed, created confusion in the hospital. Empha-
sizing that everyone's primary consideration should' be
to see. that the patients were given proper care and
attention, Docktor expressed the desire to establish a
friendly, personal relationship with the employees and
to follow an open door policy whereby employees would
not hesitate to bring their problems to him. He also
asked the employees to give him 2 months to familiarize
himself with the hospital's conditions and problems and
to develop "a program." In the course of the meetings,
employees raised the subjects of wage increases and
the fact that kitchen employees, unlike others, were
not enjoying paid holidays. Docktor commented on these
matters, as well as on such matters as hospitalization
benefits and uniforms for the men. While I am not
persuaded that Docktor made outright promises to
increase wages or make other improvements in working
conditions, he did indicate that he would investigate
the situation to see what could be done. Specifically
referring to the uniforms, Docktor noted that it was
established company policy for the men to be given
uniforms, although he observed that they actually were
not wearing complete uniform outfits. When questioned
by an employee concerning his union attitude, Docktor
replied that he thought management could do more
for, the employees than anyone else but that it was
the employees' choice whether they wanted a union.''
13 Within a few days after Docktor became administrator, Black
telephoned him for an appointment Doctor told Black that he was
too busy to see him at that time Several days later, Black again
called and a meeting was arranged for a Friday which was a day
after the first employee meeting However, Black did not keep that
appointment
i" No particularly useful purpose will be served to try to determine
what transpired at each meeting
'i The above findings are based on portions of the combined testimony
of Docktor and employee Harris which I believe reflect the probable
truth
305
5 Unilateral wage increases and institution of new
'hospitalization and vacation programs
Some time after Docktor's meetings with the employ-
ees, the Respondent granted employees wage increases
in the latter part of June; secured Blue Cross and
Blue Shield hospitalization benefits for the employees
at no cost to them; and instituted a formal vacation
program. It is undisputed that this action was unilaterally
taken without notifying the Union or affording it an
opportunity to discuss these matters with the Respond-
ent. ' -
According to Administrator Docktor, he granted the
wage increases on the basis of merit in accordance
with the Company's established policy, after personally
observing the employees' work performance, consulting
with departmental heads, and reviewing each individual's
record with the bookkeeper. As a result, all but 8
out of the Respondent's total employee roster of 122
(which apparently included nonunit employees) received
raises. Of the eight employees, it appears that several
were accidentally overlooked. In addition, Docktor tes-
tified', he decided, in the interest of uniform administra-
tion, to fix the end of June as the only date for considering
employees for wage increases.'6
With respect to hospitalization benefits, it appears
that previously the Respondent had an informal practice,
evidently not'known to all employees, whereby employ-
ees could get free medical treatment at the hospital,
if they so desired, and. be hospitalized without charge
if they did not have hospitalization insurance. According
to',Dr Shubin, two..employees were hospitalized free
at the Respondent's facility in 1969. In June, the
Respondent' instituted a Blue Cross- Blue Shield insur-
ance program for its employees with coverage rights
for their families if the employees paid an additional
premium. The Respondent asserts that it made the change
at the instance of several insurance carriers who claimed
that the Respondent's practice of free treatment resulted
in higher charges to paying patients insured by their
companies.,
As indicated above, the Respondent also instituted
a uniform vacation policy. Previously, vacations were
handled on a departmental basis, varied from department
to department, and caused uncertainty, as to employee
rights. Under the new formalized program, some employ-
ees benefited while others were disadvantaged "
" The record indicates that wage increases were previously given
to a number of employees in January and March 1969 Docktor testified
that he was informed that they were merit increases The nature of
those increases, however, was not substantiated Docktor also admitted
that he was not familiar with the nature of wage increases given
in 1967 or 1968
'7 The General Counsel does not contend that the Respondent unilater-
ally instituted a new paid-holiday program In fact, the record indicates
that the Respondent always had such a policy, although it was not
followed for kitchen employees, and that Administrator Docktor appar-
ently rectified this situation Similarly, there was an established policy
regarding the wearing of uniforms by male employees which Docktor
simply effectuated Here too no contention of unlawful unilateral
action is made
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B Concluding Findings
1. With respect to the refusal to recognize and bargain
As discussed above, following a card check conducted
by the attorneys for the Respondent and the Union,
Administrator Weissman recognized the Union as its
employees' bargaining representative in an appropriate
unit and engaged in contract negotiations over a 3-
week period which the Respondent refused to resume
after Weissman's sudden death. It is the General Coun-
sel's position that the Respondent thereby breached
its statutory obligation in violation of Section 8(a)(5)
and (1) of the Act.
It is well settled that, absent conflicting union claims,"
an employer may lawfully recognize a labor organization
as the exclusive representative of his employees in an
appropriate unit on a card-based majority.'' Once recog-
nition is thus validly accorded the union, the Board
has held that, as in the case of certifications, refusal-
to-bargain orders, and settlement agreements, the parties
are entitled to a reasonable time to negotiate a collective-
bargaining agreement, regardless of an interim loss of
majority or an intervening representation claim of anoth-
er union.20 Accordingly, the Board has found that an
employer defaulted in his bargaining obligation in viola-
tion of Section 8(a)(5) of the Act where after the first
bargaining session the employer withdrew recognition
on the gound that the union, which had previously
been lawfully recognized, no longer represented a majori-
ty of the employees as a result of a substantial employee
turnover,21 or employee disaffection.22 Conversely, the
Board has upheld a union security agreement concluded
by an employer with a voluntarily recognized majority
representative within a reasonable time after recognition,
even though at the time of the execution of the contract
the union had lost the support of a majority of the
employees.23
There is no question that the Union herein had demon-
strated its majority status in an appropriate unit by
a fair, accurate, and honest check of the Union's authori-
zation cards by the attorneys for the Respondent and
the Union It is also perfectly clear that no probative
evidence was adduced that at the time of the card
check or, indeed, at any subsequent time, any rival
union made any conflicting claim to represent the unit
employees. While initially the Respondent refused to
meet with the Union after Administrator Weissman's
" See Midttest Piping and Suppl) Co . Inc , 63 NLRB 1060, where
the Board established the principle that an employer should not himself
resolve a question of representation resulting from conflicting claims
by rival unions but should leave the issue to be resolved by the
process of a Board election
" N L R B v Gissel Packing Co .395 U S 575, 595-600
sn Keller Pastics Eastern, Inc , 157 NLRB 583, Ozella Harrington,
dlbla Kimbrough Trucking Co , 160 NLRB 954, San Clemente Publishing
Corporation 167 NLRB 6, cf Allied Supermarkets, Inc , 169 NLRB
927
21 Kimbrough Trucking Co , supra
22 San Clemente Publishing Corporation, supra, see also Universal
Gear Service Corporation 157 NLRB 1169
11 KellerPlastics, supra
death because of such supposed-and certainly
unproved-rival union claims, it apparently no longer
relies on this ground. Nor does the Respondent now
rest on its challenge to the Union's continuing majority
status which it first advanced in its July 18 letter to
a Board agent as the sole justification for its refusal
to resume bargaining. Plainly, such a challenge would
not only be legally untenable but also would be factually
unsupported by the record. From the foregoing it inesca-
pably follows that the Union was the employees' lawfully
recognized representative entitled to a reasonable time
within which to bargain for a contract and, since the
Respondent refused after Weissman's death to resume
negotiations in which the parties had engaged over a
period of only some 3 weeks, the Respondent, under
controlling percedent'24 defaulted in its statutory obliga-
tion, unless there is merit in its latest defense urged
for the first time at the hearing.
The Respondent contends that Weissman's acts in
agreeing to the card check, recognizing the Union, and
engaging in contract negotiations were not authorized
or ratified by the Respondent and therefore were not
binding on it. From this, the Respondent's argument
continues, it is under no obligation to bargain with
the Union until the Union established its majority status
in a Board-conducted election under the principle of
the Gissel case I find the Respondent's position unsup-
ported by the facts or the law
As shown above, Weissman was a partner, serving
until has death as the top administrative official of the
hospital and as a permanent member of the executive
committee of the partnership. Both in connection with
the card and the consequent recognition of the Union,
he was represented on behalf of the Respondent by
the Respondent's attorneys, one of whom verified the
Union's card-based majority status. Preceding contract
negotiations, Dr. Freedman, another partner, participat-
ed with Weissman in preliminary discussions with Union
Representative Black concerning the Union's general
economic demands and their potential effect on the
Respondent's contemplated sale of the hospital. There-
after, Dr. Shubin, the Respondent's medical director
and permanent member of its executive committee,
attended part of the first bargaining session with Weiss-
man, during which time several of the Union's proposed
terms and conditions of employment were considered.
Significantly, although Weissman was permitted subse-
quently to carry on his dealings with the Union by
himself, never was the Union alerted to his purported
limited authority. It is inconceivable to me that the
Respondent was unaware of the card check or the
true nature of Weissman's negotiations with the Union.
Indeed, it places an unreasonable strain upon credulity
to accept Shubin's testimony that Weissman was without
authority to engage in collective bargaining with the
Union; that he was only authorized to embark on an
exploratory "fact-finding mission" with representatives
24 See In 20 , supra , cf Snow & Sons, 134 NLRB 709, enfd 308
F 2d 687 (C A 9), Kellogg's Inc , 147 NLRB 342, enfd 347 F 2d
219 (C A 9), Di von Ford Shoe Co , Inc . 150 NLRB 861
BROAD STREET HOSPIT .L & MEDICAL CENTER
of various labor organizations for the purpose of "just
finding out what the unions had to offer or what their
thoughts were", and that Weissman "simply reported
[to the executive committee] very lightly that he was
talking to representatives of the unions." It is also
not without significance that the Respondent did not
produce any probative evidence of any rival union inter-
est or activity.
Fortifying the view that Weissman was empowered
to recognize the Union and engage in contract negotia-
tions is the fact that at no time after Weissman's death
did Dr. Shubin, Dr. Silk, company attorneys, or Adminis-
trator John Docktor, Weissman's successor, question
Weissman's authority or disavow his acts when Union
Representative Black apprised them that an agreement
had been reached on terms and conditions of employment
and sought to resume negotiations 25 Not surprisingly,
the Respondent's attorneys, in their July 18 letter sent
in response to the Union's charge in the present case,
did not attribute the Respondent's refusal to bargain
to any lack of authority on Weissman's part to establish
a bargaining relationship
Considering all the facts and circumstances herein,
I find it reasonable to infer that Weissman acted within
the scope of his authority in recognizing and engaging
in contract negotiations with the Union '26 or, at least,
that his acts were acquiesced in and ratified by the
Respondent.27 In any event, the record persuasively
demonstrates that the Respondent cloaked Weissman
with apparent authority to deal with the Union as the
employees' collective-bargaining representative and that
the Union believed and had good reason to believe
that Weissman possessed the authority he exercised .21
In sum, I conclude that the Respondent, contrary
to its contention, was bound by Weissman's recognition
of the Union and that its refusal to resume negotiations
after Weissman's death violated Section 8(a)(5) and (1)
of the Act,29 whether or not the Union lost majority
support.39 I further find that neither his conclusion nor
the bargaining order hereinafter recommended is preclud-
Z' The fact that the Union's initial charge in Case 4-CA-4921, alleging
a refusal to execute this agreement, was subsequently withdrawn and
no complaint issued charging such unfair labor practice clearly does
not preclude a finding that Weissman's recognition of the Union was
valid and binding on the Respondent and that the latter's refusal to
resume negotiations violated Sec 8(a)(5) and (1) of the Act
I Restatement of Agency 2d, Sec 7
Id . Sec 82, et seq
zN Id , Sec 8 See also Sec 2(13) of the Act which specifically
provides that "[i]n determining whether any person is acting as an
'agent ' of another person so as to make such other person responsible
for his acts, the question of whether the specific acts performed were
actually authorized or subsequently ratified shall not be controlling - '
In this connection, I find totally unconvincing Shubm's testimony
concerning Weissman's purported physical and mental incapacity to
conduct the hospital's business or to deal with the Union It is noteworthy
that Shubin admitted that Weissman's alleged condition was not readily
apparent to laymen, that the Union was not alerted to Weissman's
alleged condition, and that Weissman was permitted to conduct the
Respondent's business and deal with the Union
'" Ora Skiles, Jr, dl bl a Overhead Door Compans of Modesto 178
NLRB No 67, is plainly distinguishable on its facts
3" It is noted that the alleged loss of majority, if it had occurred
at all, was after the Respondent's unlawful refusal to bargain
307
ed by the Supreme Court's decision in Gissel,ui even
though, as the Respondent argues, it was not guilty
of any serious unfair labor practices which would make
impossible the holding of a fair and impartial Board
election. The Court specifically pointed out in the cited
case (601, fn 18) that it was not there "faced with
a situation were an employer, with `good' or `bad'
subjective motivation, has rejected a card-based bargain-
ing request without good reason and has insisted that
the Union go to an election while at the same time
refraining from committing unfair labor practices that
would tend to disturb the `laboratory conditions' of
that election."32
2. With respect to unilateral changes in terms and
conditions of employment
In view of my determination that the Respondent
was under the statutory obligation to bargain with the
Union as the exclusive representative of the Respond-
ent's employees in an appropriate unit, I find that its
failure to notify and discuss with the Union the contem-
plated wage increases to employees33 and the institution
of the new hospitalization and vacation programs
amounted to a refusal to bargain in violation of Section
8(a)(5) of the Act, irrespective of the Respondent's
overall good or bad faith.34 As this conduct also tended
to undercut the Union's status as the employees' exclu-
sive bargaining representative, the Respondent further
violated Section 8(a)(1) of the Act However, I find
that the record does not sustain the allegations of the
complaint that the Respondent unilaterally granted holi-
days in violation of the Act and accordingly I recommend
dismissal of such allegations.
3. With respect to unlawful promises of benefits
I find insufficient evidence to substantiate the allega-
tions of the complaint that the Respondent independently
violated Section 8 (a)(1) of the Act by promising employ-
ees better wages, holidays, and hospitalization benefits
for the purpose of undermining the Union. Accordingly,
dismissal of these allegations is recommended.
" NLRB v Gissel Packing Co , Inc , 395 U S 575, 614, 615,
where the Supreme Court ruled that the Board is empowered to issue
a bargaining order to remedy unfair labor practices "so coercive that,
even in the absence of a Section 8(a)(5) violation, a bargaining order
would have been necessary to repair the unlawful effect of those"
unfair labor practices In addition, the Court held that where the unlawful
conduct is less pervasive the Board may find an 8(a)(5) violation and
issue a bargaining order if the possibility of erasing the effects of
past [unfair labor] practices and of ensuring a fair election (or a fair
rerun) by the use of traditional remedies, though present, is slight
and [therefore] employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining order
" Pertinently, the Supreme Court noted in Gissel, at 594, the Board's
adherence to its rule "that an employer could not refuse to bargain
if he knee, through a personal poll for instance , that a majority of
his employees supported the union Cf Snow & Sons, and list
of cases cited in fn 24, supra
3' From a factual point of view, it is perfectly clear that, contrary
to Administrator Docktor's characterization, the wage increases were
not based on merit
11 N L R B v Benne Katz, et al, 369 U S 736
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF.THE UNFAIR LABOR PRACTICES UPON
COMMERCE ., .
The activities of the Respondent set forth in section
III, above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic,
and commerce among the several States,,and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended,
I recommend that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and in any like or related conduct and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
To remedy the Respondent's unlawful refusal to fulfill
its statutory obligation, I recommend that it be directed
to bargain, on request, with the Union, as the exclusive
representative of its employees in the appropriate unit
described above and, if any understanding is reached,
embody such understanding in a signed agreement. In
addition, the posting of a notice is also recommended.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent 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. All kitchen employees, housekeeping employees,
nurses aides, practical nurses and practical nurses
licensed through waiver, employed by the Respondent
at its Philadelphia, Pennsylvania, hospital, but excluding
the chief cook and assistant cook in the dietary depart-
ment, registered nurses, licensed practical nurses, admin-
istrative employees, and supervisors as defined in the
Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At- all times material herein, the Union has been
the exclusive bargaining representative of the employees
in the aforesaid appropriate unit within the meaning
of Section 9(a) of the Act.
5. By refusing since on or about May 26, 1969, to
recognize and bargain collectively with the Union, as
the exclusive representative of the employees in the
aforesaid appropriate unit, the Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By unilaterally granting employees wage increases
and hospitalization insurance benefits without cost to
them and instituting a new, fromalized vacation program,
without first notifying the Union and affording it an
opportunity to bargain over these matters, the Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
,7. By the foregoing conduct the Respondent has inter-
fered with, restrained, and coerced employees in the
-exercise of their statutory rights within the meaning
of Section 8(a)(1) of the Act. -
8. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
9. The Respondent has not violated Section 8(a)(1)
of the Act by promising employees wage increases or
other benefits.
RECOMMENDED ORDER
Upon the basis of the above-findings of fact, conclu-
sions of law, and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is ordered that the Respondent,
Broad Street Hospital and Medical Center, Philadelphia,
Pennsylvania, its partners, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
National Organizing Committee of Hospital and Nursing
Home Employees, affiliated with Local 1199-RWDSU-
AFL-CIO, as the exclusive representative of the Compa-
ny's employees in the unit described below, concerning
rates of pay, wages, hours of employment, and other
conditions of employment:
All kitchen employees, housekeeping employees,
nurses aides, practical nurses and practical nurses
licensed through waiver, employed by the Respond-
ent at its Philadelphia, Pennsylvania, hospital, but
excluding the chief cook and assistant cook in
the dietary department, registered nurses, licensed
practical nurses, administrative employees, and
supervisors as defined in the Act.
(b) Making unilateral changes in employee wages,
hospital benefits, vacations and other terms and condi-
tions of employment, without first notifying and bargain-
ing with the -above-named Union as the employees'
exclusive bargaining representative.
(c) In any. like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union, as the exclusive representative of its
employees in the above-described unit, concerning rates
of pay, wages, hours of employment, and other condi-
tions of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its hospital in Philadelphia, Pennsylvania,
copies of the attached notice marked "Appendix. "as
11 In the event no exceptions are filed as provided by Section 102.46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 102.48 of the Rules and Regulations,
BROAD STREET HOSPITAL & MEDICAL CENTER
Copies of said notice, on forms provided by the Regional
Director for Region 4, after being duly signed by
Respondent'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 mate-
rial.
(c) Notify the Regional Director for Region 4, 'in
writing, within 20 days from the date of the Trial Examin-
er's Decision, as to what steps the Respondent has
taken to comply herewith.36
IT IS FURTHER ORDERED that the complaint, as amend-
ed, be and it hereby is dismissed insofar as it alleges
that Administrator Docktor promised employees wage
increases and other benefits in violation of Section 8(a)(1)
of the Act.
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board 's Order is enforced by a Judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board " shall be
changed to read "Posted Pursuant to a Judgement of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
31 In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read "Notify the Regional
Director for Region 4, in writing , within 10 days from the date of
this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively with National Organizing Committee
of Hospital and Nursing Home Employees , affiliated
with Local 1199-RWDSU-AFL-CIO, as the
exclusive representative of the Company' s employ-
ees in the unit described below, concerning rates
309
of pay, wages, hours of employment, and other
conditions of employment:
All kitchen employees, housekeeping employ-
ees, nurses aides, practical nurses and practical
nurses licensed through waiver, employed by
the Respondent at its Philadelphia, Pennsylva-
nia, hosptial, but excluding the chief cook
and assistant cook in the dietary department,
registered nurses, licensed practical nurses,
administrative employees, and supervisors as
defined in the Act.
WE WILL NOT make unilateral changes in employ-
ee wages, hospital benefits, vacations, or other
terms and conditions of employment, without first
notifying and bargaining with the above-named
Union as the employees' exclusive bargaining repre-
sentative.
WE WILL NOT in any line or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them by Section
7 of the Act
WE WILL bargain collectively, upon request, with
the above-named Union, as the exclusive represent-
ative of our employees in the above-described unit
concerning rates of pay, wages, hours of employ-
ment, and other conditions of employment and,
If an understanding is reached, we will embody
such understanding in a signed agreement.
Dated By
BROAD STREET HOSPITAL
AND MEDICAL CENTER
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
1700 Bankers Securities Building, Walnut and Juniper
Streets, Philadelphia, Pennsylvania 19107, Telephone
215-597-7601.