Child's Hospital

National Labor Relations Board - Board Decisions

Aug 24, 1992

308 N.L.R.B. 340 (N.L.R.B. 1992)

340
308 NLRB No. 64
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On April 9, 1992, Administrative Law Judge Joel P. Biblowitz
issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1991.
2 The Union filed a petition on May 6. The election was conducted
on August 23 and the ballots were impounded. No final certification
has yet issued.
The Child’s Hospital and New York State Nurses
Association. Cases 3–CA–16339 and 3–CA–
16657
August 24, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present the issue of whether the Respondent, in the
context of a union organizing campaign, made threats
of loss of employee benefits and interrogated an em-
ployee about her union support.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Child’s Hospital, Al-
bany, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Alfred M. Norek, Esq., for the General Counsel.
Michael J. Smith, Esq. (Roemer & Featherstonaugh), for the
Respondent.
Richard Silber, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on February 25, 1992, in Albany, New
York. The amended consolidated complaint herein, which
issued on December 31, 1991,1 was based upon unfair labor
practice charges filed on May 28 and October 23, and
amended charges filed on July 25 and December 31 by New
York State Nurses Association (the Union). The complaint
alleges that, on a number of occasions, The Child’s Hospital
(Respondent), interrogated its employees about their Union
and protected concerted activities and threatened its employ-
ees with closing in the event that they chose the Union as
their collective-bargaining representative, and threatened its
employees with the loss of benefits, including ‘‘pigouts,’’ in
the event that the Union was selected as their collective-bar-
gaining representative. The complaint further alleges that on
about August 28 Respondent promulgated, and has since
maintained, a rule restricting the literature that may be placed
on its bulletin board in order to discourage its employees
from joining or assisting the Union. All this is alleged to vio-
late Section 8(a)(1) of the Act.
Upon the entire record, including the briefs received and
my observation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a not-for-profit New York state corporation
with its place of business located in Albany, New York, has
been engaged in business as an acute care hospital and sur-
gical care center. Annually, in the course and conduct of its
operations, Respondent derives gross revenues in excess of
$500,000 and purchases and receives goods and services in
excess of $50,000 from points located outside the State of
New York. Respondent admits, and I find, that it is engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION STATUS
Respondent does not contest the fact that the Union is a
labor organization within the meaning of Section 2(5) of the
Act, and I so find.
III. THE FACTS
There are three allegations of unlawful statements by Re-
spondent’s agents to registered nurses (RNs) employed in
Respondent’s operating room (the O.R.) on May 9, June 4,
and the end of June. In addition, there is an allegation that
on August 28, Respondent instituted and subsequently main-
tained a rule restricting access to the bulletin boards at the
hospital in order to discourage its employees from joining
and assisting the Union. The ‘‘players’’ here are Barbara
Graig and Patricia Klimkewicz, RNs, who were employed in
Respondent’s O.R. Klimkewicz ended her employment with
Respondent in December. For Respondent, Michael Murphy,
its assistant administrator, is alleged to have interrogated and
threatened its employees and Terry Hurley, chief financial
officer for Respondent’s parent, is alleged to have interro-
gated its employees regarding their union activities. The im-
plementation of the restrictions on the use of the bulletin
boards was announced by Karen Harper, Respondent’s direc-
tor of nursing, whose responsibilities began to include the
O.R. on August 27, after the Board-conducted election.2
These allegations will be discussed chronologically.
Graig testified that on May 9, while she was at the sec-
retary’s area of the O.R. speaking to Klimkewicz, Murphy
asked them if he could talk to them and they all went into
the adjacent office of Arthur Hanley, Respondent’s assistant
director of nursing. When all three were in the room, Mur-
341CHILD’S HOSPITAL
3 Graig and Klimkewicz and some of the other RNs in the O.R.
were then working 40-hour weeks, consisting of 4 10-hour days.
4 The recent practice had been that on those days when the O.R.
was slow or closed and all the regular RNs were not needed, some
were allowed to take the day off, with or without pay.
5 ‘‘Pig outs’’ are celebrations when an employee in the unit is get-
ting married, had a child or has graduated, or for a holiday. Each
employee brings in a dish and they have a 1-hour lunch period in-
stead of the usual 30 minutes.
phy handed them a letter dated that day from Steven Lauko,
Respondent’s chief executive officer, addressed to all RNs,
announcing that they had been notified a few days earlier of
the Union’s petition. The letter briefly stated Respondent’s
position, basically, that, in order to remain competitive, Re-
spondent would be best served by a partnership with its em-
ployees, without a union. The letter also stated: ‘‘In the com-
ing weeks, while the nurses’ union may continue to promise
or imply that they will provide job security, better benefits,
etc., for our Registered Nurses, it can in no way guarantee
that any such thing will take place.’’
Graig testified that Murphy asked them to read the letter
and asked them if they had any questions; they didn’t. Mur-
phy said that if there was a union at Respondent they would
have to pay dues, and if the Union told them to strike they
had to strike; if they crossed the picket line they could lose
two-thirds of their pay. Murphy also said: ‘‘with a union that
if they had, if the union says that we have to work eight-
hour shifts, five eight hour days, that the four ten-hour days
would be abolished.’’3 Graig further testified that Murphy
said:
And he also stated that with a contract, if the O.R. was
either closed because of the lack of surgical cases or if
it was a light day, that with the union, we probably
would not be able to leave early or just take the day
off like we had in the past.4
He also made reference to the fact that we would no
longer be able to have pig outs either. . . . We would
not be able to have such a feast if, indeed, the union
was voted in.5
On cross-examination, she testified that Murphy never said
that these three subjects were negotiable items, would have
to be negotiated with the Union or would be subject to col-
lective bargaining.
Klimkewicz testified that on May 9, while she was talking
to Graig, near the secretary’s desk in the O.R., Murphy ap-
proached them and said that he would like to speak to them.
They went into Hanley’s office and Murphy gave them
Lauko’s May 9 letter. After they had an opportunity to look
at the letter, Murphy told them:
If the union gets in, we will no longer have pig outs.
We will not be able to work our four ten-hour shifts.
We may have to go back to the eight-hour five-day
working. If the O.R. schedule is slow, we cannot take
the day off or use our vacation time or so forth. If
that’s what union says.
She also testified that they discussed her recent trip to Eu-
rope and Murphy said that ‘‘if the union gets in, I would not
be able to do that.’’ During this discussion Murphy never
mentioned collective bargaining or negotiations.
Murphy testified that on the day in question, he asked
Graig and Klimkewicz if he could speak to them. They went
into Hanley’s office and he gave them Lauko’s letter. He
asked them if they wanted to discuss the letter and said that
he wanted to talk to them about his concerns about why a
third party was not needed. He told them that with a union
he would not ‘‘have the luxuries that I now had which was
being able to be very, very flexible with the staff. . . . And
I explained that those luxuries I may not have if it wasn’t
spelled out in the contract.’’ He brought up the subject of
combined leave time: ‘‘Because I felt that I would not be al-
lowed to do some of the things that I was doing routinely
for the past ten years that I’ve been at [Respondent].’’ He
testified: ‘‘I indicated that I would be very restrictive on
what I could do if it wasn’t spelled out in the contract.’’ The
discussion of benefits was preceded by a statement that the
benefits were all part of collective bargaining. Regarding the
discussion of the pig-outs and the 4-day, 10-hour week:
‘‘Again, I was saying I would not be able to afford those
luxuries which I was able to do in the past ten years.’’ He
testified that he never said that if the union got in they would
lose benefits; rather, he stated: ‘‘Under the terms of a con-
tract or collective bargaining, I could not assure anybody
what conditions, hours of operation, benefits, etcetera would
be.’’ He told Graig and Klimkewicz that: ‘‘All those issues
would be items for negotiation.’’
The next allegation involves a discussion between Graig
and Murphy on June 4. Graig testified that on that day Mur-
phy asked if he could speak with her and they went to the
in-service office at the facility. When they sat down Murphy
showed her a copy of the unfair labor practice charge that
was filed by the Union on May 28 and asked her to read
it. The charge does not name Murphy. He told her that he
felt ‘‘personally attacked’’ by the charge and asked her if she
had any knowledge of the charges; he did not ask who had
made the complaints against him. She said that she didn’t
understand what Section 7 was, but, as far as discrimination,
which was mentioned in the charge, she had heard about an
incident at the facility allegedly involving discrimination.
Murphy then stated that he was going to go to the hearings
and: ‘‘He would know eventually who had made the allega-
tions against himself.’’ Graig testified that, prior to this con-
versation, she was not aware that the Union had filed the
charge, and had not previously identified herself to Murphy
as a union supporter. In addition, he never told her that she
didn’t have to answer his questions.
Murphy testified that he first saw the unfair labor practice
charge on the day it arrived at the facility, May 30. After
seeing the charge he spoke to about 15 of the RNs, including
Graig, about it. He told her that he was not aware that he
had been harassing, intimidating, or discriminating against
the nurses since the union activity began and Graig said that
she wasn’t aware of it either. He testified further that to-
gether with the unfair labor practice charge he gave Graig a
memorandum, dated June 4, that was addressed to all RNs;
briefly, the memorandum stated that the Union filed an un-
fair labor practice charge (‘‘in an attempt to gain a campaign
advantage with you’’) alleging that the Respondent coerced
and discriminated against the RNs, but with no specific alle-
gations, and he was confident that the Board would find the
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
allegations to have no merit. When he spoke to the other
nurses, he asked them, basically, the same thing: ‘‘Are you
aware of me harassing or intimidating anyone?’’ When he
was asked by one of the nurses (not Graig) who made the
charges, he said that he assumed that if there was a hearing
he would learn at that time who made the charges.
Klimkewicz attended the representation hearing at the
Board office on about June 20. A few days later she was told
by a fellow employee that Terry Hurley, Respondent’s chief
financial officer, wanted to speak to her. She went into his
office and they spoke about the Board hearing. He asked her
why the nurses were so upset and she said that it was be-
cause of the combined leave time issue. He then asked her
if she was involved with the Union and she asked him if
Lauko had told him to ask that. He said: ‘‘No, I’m asking
that on my own behalf.’’ She had never previously been
called into Hurley’s office, had never socialized with him,
and was never told that speaking with him was voluntary.
Hurley, while an admitted agent of Respondent, is a finan-
cial officer of the parent corporation and has no direct super-
visory authority over the RNs. He testified that Klimkewicz
is a ‘‘social acquaintance’’ of his; he has, at times, met her
in local establishments in the area and in about 1986 she
dated his roommate. In addition, prior to late June, she had
been in his office on a number of occasions to discuss class-
es she was taking or other subjects. He testified that shortly
after the Board hearing, he called her to his office and said:
What are the problems here? I’m surprised that there
was even a petition for a union. And is there anything
that . . . I should know? You know, it was more on
a casual frame of mind.
She asked him who set him up to ask the questions and he
answered that nobody did. On rebuttal, Klimkewicz testified
that she never dated the individual whom Hurley identified
as his roommate, but has, occasionally seen Hurley and his
wife at local bars and said hello.
The final allegation involves the alleged unlawful imple-
mentation of a rule restricting access to bulletin boards at the
facility beginning on about August 28; it is alleged that this
was meant to discourage the employees from joining or as-
sisting the Union. There are bulletin boards throughout the
facility, some of which are covered with glass. The O.R. has
two bulletin boards: one was over the medication refrig-
erator, which usually contained information regarding medi-
cation, such as recalls or new medication that was meant to
substitute for some existing medicine. The O.R. bulletin
board that was the subject of most of the testimony was one
that was located behind the secretarial desk outside of Han-
ley’s office in the O.R. Prior to August 28, this bulletin
board contained newspaper articles, interdepartment memos,
the staffing schedule in the O.R. and numerous personal
notes, including birth and wedding announcements, baby
showers, recipes and announcements of social events of in-
terest to the employees. Sometime prior to August 28, this
bulletin board also contained a caricature of Lauko. At about
the time of the election, this bulletin board also contained
newspaper articles about the Union’s attempt to represent
Respondent’s RNs. Graig testified that the only requirement
for postings on this bulletin board was ‘‘to locate yourself
a thumbtack’’ and post the notice. Klimkewicz testified: ‘‘I
was not aware there was a policy or procedure.’’ Each testi-
fied that no prior approval was needed for a posting.
Ernest Canfield, Respondent’s director of human re-
sources, testified that his department’s administrative policy
manual contained rules for posting on the four glass-enclosed
bulletin boards at the facility, the only bulletin boards that
are controlled by his department; the manual stated that for
the other bulletin boards at the facility, access depended
upon the discretion of the departments in which they are lo-
cated. Canfield also testified that over the last 4 or 5 years
Respondent has distributed an employee handbook containing
the following provision (which was still in effect in August):
Within the facility there are several glass enclosed bul-
letin boards containing specific information as required
by law. You should become familiar with their loca-
tions and the information contained therein.
The facility also provides bulletin boards for employee
use. Items to be posted must be submitted to and ap-
proved by the Personnel Department. Items will be
posted for a limited time.
Harper has been employed by Respondent as its director
of nursing; effective August 27, her responsibilities included
the O.R. On August 28 a staff meeting was held with the
entire O.R. staff, Hanley and Harper. Harper distributed a
memorandum to those present. It states that because of ‘‘the
additional responsibilities of the O.R. and PACU being in-
cluded under my direction, I find it necessary to remind you
of certain existing policies.’’ The first three sections involve
dress code, tardiness and personal phone calls. The only sec-
tion herein relevant, ‘‘Bulletin Board,’’ states:
The bulletin board is to be used for interdepartmental
memos only. Posting will be for no longer than 5 days.
The only exclusion will be for ‘‘Thank You’’ notes
from patients/employees. The O.R. Supervisor is to ap-
prove all items to be posted.
Harper asked if there were any questions. Graig said that she
had never previously heard of any requirement of prior ap-
proval for bulletin board postings, and she felt that it was in
retaliation for the employees asking for union representation.
Harper denied that the rules had anything to do with the
Union; she said that she was taking charge of the department
and ‘‘she had to start somewhere.’’ Graig testified that after
August 28 this bulletin board only contained interdepart-
mental memos, staffing schedules and similar documents, as
well as some thank you cards, including one from
Klimkewicz for a party the staff gave her. She further testi-
fied that Harper said at the August 28 meeting that there was
no change, that this had always been Respondent’s policy.
Graig testified: ‘‘if it was hospital policy in regards to that
bulletin board, it was never treated in that manner. It was al-
ways used as a general bulletin board for the O.R. staff.’’
Klimkewicz testified that from August 28 until the time she
ended her employment with Respondent, this bulletin board
‘‘was bare just about.’’ It contained only interdepartmental
memos and the O.R. schedule.
Harper testified that she assumed the responsibility of the
O.R. on August 27, in addition to the other nursing units
which she had previously supervised. She issued the August
343CHILD’S HOSPITAL
28 memorandum to all the nurses at the facility ‘‘to bring
all of nursing service together as one department, I felt that
it was very important that all of nursing be treated the same,
that there would not be any sort of discrepancy between op-
erating nurses versus unit nurses.’’ The only difference in the
rules related to the dress code for O.R. RNs as compared to
the other RNs at the facility. Harper testified that the bulletin
board policy that she informed the staff of on August 28 was
not a new policy; rather she was informing the staff that she
expected them to follow existing policy. Prior to August 28
she observed, and ‘‘was very concerned about,’’ cartoons
and caricatures of physicians and staff personnel on the bul-
letin board, and considered it ‘‘unprofessional.’’ Both before
and after August 28, union-related materials were placed on
the bulletin boards in the O.R. and were not removed. How-
ever, the principal items on the bulletin board since August
28 have been interdepartmental memos, as well as occasional
thank you cards. During this same period she removed some
catalogs and caricatures from the bulletin board. She testified
that under the new rules, an RN would go to the ‘‘O.R. su-
pervisor and ask if something could be posted.’’ She subse-
quently testified, however, that there was no need for the su-
pervisor to determine whether an item was ‘‘appropriate’’;
rather, the supervisor dated it (to begin the 5-day posting pe-
riod) and posted it. She doesn’t believe that any posting was
refused although, as stated earlier, caricatures have been re-
moved.
Graig testified that staff members, supervisors, and sur-
geons had access to the bulletin board in question. Patients
are in the area as well, but they are usually cataract patients
or plastic reconstructive patients who are usually on stretch-
ers and would be unable to read the notices on the bulletin
board. Visitors of patients would not have access to the bul-
letin board because they ‘‘would never be that far into the
O.R.’’, except ‘‘once in a blue moon.’’ Vendors sometimes
are in the area speaking to Hanley. Harper testified that in
addition to the bulletin board behind the secretary’s desk in
the O.R. and the one over the medication refrigerator, there
was a bulletin board outside the O.R. coffeeroom. As regards
the O.R. coffeeroom bulletin board, she testified that vendors
and physicians are in that area. In addition, visiting family
members ‘‘walk past’’ this bulletin board. When Harper was
asked on cross-examination about this testimony, she testified
that ‘‘actually,’’ she was referring to the bulletin board be-
hind the O.R. secretarial desk which family members, ven-
dors, and physicians would have access to.
IV. ANALYSIS
The first allegation is that Respondent, by Murphy, on
May 9, threatened Graig and Klimkewicz with the loss of
benefits if the RNs voted in the Union, in violation of Sec-
tion 8(a)(1) of the Act. The General Counsel stresses the tes-
timony of Graig and Klimkewicz to the effect that Murphy
said that these changes would come about ‘‘with the Union’’
or ‘‘if the Union was voted in.’’ Counsel for Respondent de-
fends that Murphy’s statements do not violate the Act be-
cause he first explained to Graig and Klimkewicz that he
could not assure them what a contract would eventually pro-
vide because it was all subject to negotiation.
There is a very thin line between proper and improper
statements of this nature. In NLRB v. Gissel Packing Co.,
395 U.S. 575 at 618 (1969), the Supreme Court set forth an
employer’s rights in these situations:
He may even make a prediction as to the precise effect
he believes unionization will have on his company. In
such a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an em-
ployer’s belief as to demonstrably probable con-
sequences beyond his control or to convey a manage-
ment decision already arrived at to close the plant in
case of unionization. If there is any implication that an
employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities
and known only to him, the statement is no longer a
reasonable prediction based on available facts, but a
threat of retaliation based on misrepresentation and co-
ercion, and as such without the protection of the First
Amendment . . . an employer is free only to tell ‘‘what
he reasonably believes will be the likely economic con-
sequences of unionization that are outside his control’’
and not ‘‘threats of economic reprisal to be taken solely
on his own volition.’’
In Piggly Wiggly, Tuscaloosa Division, 258 NLRB 1081
at 1092 (1981), the administrative law judge (while finding
no violation) stated:
when an employer advises its employees of adverse
consequences befalling employees following their selec-
tion of a collective bargaining agent, there is a fine line
to distinguish between the inference that it is merely
advising employees of potential adverse consequences
which could flow from such selection, or whether it is
impliedly threatening the inevitable likelihood that such
consequences will flow to its employees in retaliation
for their having selected the union as their collective
bargaining representative. This distinction must be
drawn based on an analysis of the entire context of the
conversation.
In Brunswick Corp., 282 NLRB 794 (1987), the Board re-
versed the administrative law judge’s finding that a certain
statement referred to restrictive work practices in some col-
lective-bargaining agreements and therefor constituted a law-
ful prediction of potential adverse effects of unionization.
The Board found a violation, stating: ‘‘Absent any reference
to the collective-bargaining process, Turner’s statement must
be understood instead as a threat of unilateral action to be
undertaken in retaliation for unionization.’’
The issue is therefor whether Murphy clearly informed
Graig and Klimkewicz that the adverse effects that he said
unionization might have on their working conditions would
result from the collective-bargaining process or whether it
would result from action of Respondent to punish them for
selecting the Union. This determination is made more dif-
ficult by the fact that the three participants each have some-
what different versions of this meeting. Graig and
Klimkewicz each testified that Murphy never referred to ne-
gotiations or collective bargaining. Graig testified that he
preceded his statements with ‘‘with a union,’’ ‘‘if the union
says’’ ‘‘with a contract’’ and ‘‘if the Union was voted in.’’
Klimkewicz testified that Murphy used the phrases: ‘‘If the
Union gets in’’ and ‘‘if that’s what the Union says.’’ Murphy
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testified that he told them that he might lose his flexibility
if the items ‘‘weren’t spelled out in the contract’’ and that
all the benefits were part of collective bargaining. Although
all three were apparently credible witnesses, as it is nec-
essary to make a credibility finding, I would credit the testi-
mony of Graig and (secondarily) Klimkewicz over Murphy.
They were more direct in their responses and their testimony
was reasonable and believable. I therefor find that Murphy
never mentioned negotiations or the collective-bargaining
process in explaining the possible changes to Graig and
Klimkewicz. Even prefacing a warning with ‘‘if the Union
says’’ is not enough to clearly inform the employees that Re-
spondent was not going to take action to punish them for se-
lecting a union. When an employer enters this area with em-
ployees who are not knowledgeable about labor relations
matters, and are keenly aware of any suggestion that involves
the loss of benefits, the employer has a duty to clearly in-
form the employees that it could possibly result from the col-
lective-bargaining process. Murphy did not do this, and I
therefor find that his May 9 statements to Graig and
Klimkewicz violate Section 8(a)(1) of the Act.
In the June 4 incident, Murphy called Graig into an office,
asked her to read the Union’s May 28 unfair labor practice
charge, told her that he felt personally attacked by the
charge, and asked her if she had any knowledge of the
charges. He also stated that when he went to the hearing he
would learn the source of the charges. He never assured her
that she didn’t have to answer his questions. Firstly, I find
that these circumstances do not warrant the strict rules of
Johnnie’s Poultry Co., 146 NLRB 770 (1964). Rather, I find
that Rossmore House, 269 NLRB 1176 (1984), Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985), and Bo-Ed Inc., 281
NLRB 226 (1986), are more on point. They state that the test
is whether, under all the circumstances, the interrogation rea-
sonably tended to restrain, coerce, or interfere with the em-
ployee’s Section 7 rights. In this situation, I find that it did
not. Although Murphy was assistant administrator of Re-
spondent and it was a one-on-one conversation, the nature of
Murphy’s questions and comments were clearly not coercive
and were not accompanied by any threats. He asked her if
she had any knowledge of the charge and that he felt person-
ally attacked by it; he did not ask her whether she was re-
sponsible or the names of those who were responsible for the
charge. Graig, apparently, did not feel coerced because she
told him of some hearsay knowledge of an incident at the
facility involving discrimination. For these reasons, I rec-
ommend that this allegation be dismissed.
The next allegation involves the alleged interrogation of
Klimkewicz by Hurley in late June. This is another difficult
credibility issue as Hurley did and said nothing to illustrate
a lack of credibility on his part. However, neither did
Klimkewicz, and based upon my observation of the two, my
reading of the transcript and my knowledge of labor situa-
tions and probabilities, I credit the testimony of Klimkewicz.
This was a one-on-one situation in Hurley’s office. Although
Hurley is not a direct supervisor of hers, he has powers re-
garding employee benefits. Klimkewicz was not an open and
vocal union supporter and, having credited the testimony of
Klimkewicz, I find that Klimkewicz and Hurley did not
maintain enough of a social relationship to make such a con-
versation permissible. Although Klimkewicz did not appear
to be coerced by Hurley’s question of whether she was in-
volved with the Union, I find that under all these cir-
cumstances this question was coercive and I therefor find
that it violates Section 8(a)(1) of the Act. S.E. Nichols, Inc.,
284 NLRB 556 (1987).
The final allegation involves the August 28 rule restricting
access to Respondent’s bulletin boards. The General Counsel
alleges that the rule was promulgated and enforced to dis-
courage union support among its employees. Respondent al-
leges that these rules were always in effect and that Harper
informed the O.R. RNs about these rules on August 28 be-
cause a day earlier she had assumed authority over them and
wanted to maintain a uniform policy throughout the facility.
I found Harper and Canfield to be open and credible wit-
nesses. Canfield’s testimony is supported by Respondent’s
employee handbook in establishing that for the prior 4 years
Respondent has required that items posted on the depart-
mental bulletin boards (such as the one involved herein) have
prior approval and can be posted only for a limited time. I
found credible and reasonable Harper’s testimony that she
issued the memorandum on August 28 because on the prior
day she assumed responsibility of the O.R. and ‘‘felt that it
was very important that all nursing be treated the same.’’
The evidence establishes that prior to August 28 caricatures
of staff members appeared on the bulletin board. Although
I would credit Graig’s testimony that, with rare exception,
the bulletin board was only readable by staff members, Harp-
er’s description of these caricatures as ‘‘unprofessional’’ is a
fair one, and her decision to more strictly enforce the exist-
ing rules is not unreasonable. I also credit the testimony of
Harper that both before and after August 28, union-related
items were placed on this bulletin board and remained there.
I find that Respondent did not violate the Act when it an-
nounced the bulletin board rules on August 28. The evidence
establishes that these rules had been in effect for 4 or 5
years, although not strictly enforced, at least, on the O.R.
bulletin board in question. Although these rules were an-
nounced 5 days after the election, I find that Harper’s testi-
mony establishes that it was announced at that time because
she assumed responsibility over the O.R. on the prior day.
As these rules were announced for legitimate business pur-
poses and not to stifle the employees’ union activities, I rec-
ommend that this allegation be dismissed. Predicasts, Inc.,
270 NLRB 1117 (1984); St. Paul’s Church Home, 275
NLRB 1242 (1985).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act in the
following manner:
(a) Threatening its employees with the loss of benefits if
they chose to be represented by the Union.
(b) Interrogated its employees regarding their support for
the Union.
4. The Respondent did not further violate the Act as also
alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
345CHILD’S HOSPITAL
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, The Child’s Hospital, Albany, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with the loss of benefits if
they selected the Union as their collective-bargaining rep-
resentative.
(b) Interrogating its employees regarding their support for
the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their Section
7 rights.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post in each department at its facility in Albany, New
York, copies of the attached notice marked ‘‘Appendix.’’7
Copies of the notice, on forms provided by the Regional Di-
rector for Region 3, after being signed by Respondent’s au-
thorized representative, shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER ORDERED that the complaint is dismissed as
to allegations not specifically found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten our employees with the loss of
some of their benefits if they select New York State Nurses
Association (the Union) or any other labor organization, as
their collective-bargaining representative.
WE WILL NOT interrogate our employees regarding their
support for the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their Sec-
tion 7 rights.
THE CHILD’S HOSPITAL