Fairbanks Medical & Surgical Clinic, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1974

213 N.L.R.B. 741 (N.L.R.B. 1974)

FAIRBANKS MEDICAL & SURGICAL CLINIC 741
Fairbanks Medical & Surgical Clinic , Inc. and Retail
Clerks Union, Local 1689 , Chartered by Retail
Clerks International Association, AFL-CIO. Cases
19-CA-6648, 19-CA-6739, and 19-RC-6668
September 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND PENELLO
On April 26, 1974, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, the General Counsel
filed cross-exceptions, and the Respondent filed an
answering brief to the cross-exceptions.
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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, but only to the extent
consistent herewith.
We agree with the Respondent that the interview of
employee Templeton by Assistant Administrator
Hinkla did not violate Section 8(a)(1) of the Act. The
Administrative Law Judge, in finding this conversa-
tion to be in violation of Section 8(a)(1), relied in part
on the fact that the conversation took place in
Hinkla's office, and that Hinkla in the course of the
conversation questioned Templeton concerning em-
ployee union activity. While we agree with the Ad-
ministrative Law Judge that the situs of a
conversation, i.e., in management's office, is a factor
to be considered, in our opinion, this factor alone in
the circumstances here present does not support the
conclusion that the conversation was coercive or
tended to interfere with employee union activity. Ac-
cording to the testimony of Templeton, the conversa-
tion involved a rather free exchange of information,
suggestions, and views on the day-to-day workings of
the clinic, and at no time did Templeton testify that
she was threatened or given to believe that any conse-
quence would befall her because she was supporting
the Union. In addition, when Templeton testified that
she mentioned the conversation to several other em-
ployees, there was no testimony that she conveyed to
those employees anything that would have caused
them to be concerned about possible reprisals for en-
gaging in union activity. Fianlly, the record shows
that prior to the conversation Templeton had freely
circulated a memo to many of the employes (which
memo, the evidence discloses, may have been posted
at the timeclock) that there was going to be a meeting
at her home the following Friday for purposes of dis-
cussing the Union. Notwithstanding Templeton's ob-
vious support of the Union, Hinkla's only comment
on this during the course of the conversation was in
the form of a rhetorical question by Hinkla to the
effect that he did not understand how an intelligent
girl like her could be prounion. In such circumstances,
we conclude that the conversation was not one that
would tend to interfere with Templeton's union activi-
ties . Accordingly, we shall dismiss this allegation of
the complaint.'
We agree however with the General Counsel that a
notice to employees should be posted with regard to
the complaint in Case 19-CA-6739. From the record
it is clear that the Respondent agreed that its assistant
administrator, upon receipt of an inquiry from a pros-
pective employer of one of Respondent' s former em-
ployees, advised that employer that the former
employee was "a union organizer and agitator" and
that rather than go to trial on this issue , Respondent
would consent to the posting of a notice remedying
this charge. Accordingly, we shall order Respondent
to post such a notice to employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Fair-
banks Medical & Surgical Clinic, Inc., Fairbanks,
Alaska, its officers, agents, successors, and assigns,
shall take the following affirmative action:
(a) Post at its Fairbanks, Alaska, clinic copies of
the attached notice marked "Appendix." 2 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 19, after being duly signed by
Respondent's authorized representative, shall be post-
ed by it immediately upon receipt thereof, and be
i Having found this conversation to have violated Sec 8(aXI) of the Act,
the Administrative Law Judge also concluded that this conduct necessarily
interfered with the election and recommended that the election be set aside
and a second election directed In view of our conclusion herein that there
was no interference with the election , there is no basis for a second election.
However, at this stage of the proceedings , we note for the record that,
although the scope of the unit is not now and never has been in issue before
us, it appears that the Regional Director may have inappropriately included
within the professional voting group various employees who do not meet the
statutory definition of a "professional" employee . In view of our decision
herein we need not consider further this possible problem
2 In the event that 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 "
213 NLRB No. 93
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint in Case
19-CA-6648 be, and the same hereby is, dismissed in
its entirety.
IT IS FURTHER ORDERED that the objections filed in
Case 19-RC-6668 be, and the same hereby are, over-
ruled.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had an opportuni-
ty to present evidence and state their positions, the
National Labor Relations Board has ordered us to
post this notice.
WE WILL NOT advise employers or prospective
employers of our former employees that any em-
ployee while employed by us engaged in union
activities or was a "union organizer and agita-
tor."
All our employees have the right to join or assist or
not to join or assist Retail Clerks Union, Local 1689,
chartered by Retail Clerks International Association,
AFL-CIO, or any other labor organization.
FAIRBANKS MEDICAL &
SURGICAL CLINIC, INC.
(Employer)
Dated By
(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 compli-
ance with its provisions may be directed to the
Board's Office, 10th Floor-Republic Building, 1511
Third Avenue, Seattle , Washington 98101, Telephone
206-442-4532.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: A hearing
in this consolidated proceeding was held at Fairbanks, Alas-
ka, on February 20, 1974. Charges were filed in Case 19-
CA-6648 on September 24, 1973, and an amended charge
in the same case was filed on November 5, 1973, by the
Retail Clerks Union, Local 1689, chartered by Retail Clerks
International Association, AFL-CIO (herein the Union).
The charge in Case 19-CA-6739 was filed on November 19,
1973, by the Union. Complaint issued on these consolidated
cases on December 21, 1973.
An election was conducted among two groups of
Respondent's employees (one nonprofessional group and
one professional group, excluding physicians) on September
19, 1973. The Union filed timely objections to the election.
Thereafter the Regional Director issued a report on Decem-
ber 14, 1973, dismissing all of the Union's objections to the
election except one, which the Regional Director found to
raise similar questions to those raised in Cases 19-CA-6648
and 19-CA-6739 and determined that the issue could best
be resolved by a hearing before an administrative Law
Judge. Acting pursuant to Sections 102.33 and 102.72 of the
Board's National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the hearing on objections and
the unfair labor practices were consolidated for hearing by
order issued on December 21. The Board's Decision and
Order sustaining the Regional Director's recommendations
was issued by the Board on February 19, 1974, and all
parties were advised by telegram of the Board's determina-
tion.
A portion of the charge in Case 19-CA-6739 was appar-
ently dismissed by the Regional Office and the only portion
which remained was included in the consolidated complaint
as paragraph 7. This portion of the complaint was satisfac-
torily settled by the General Counsel and the Respondent
prior to the hearing.' There remains for determination in
this consolidated complaint only three acts of threats, inter-
rogation, or interference alleged to be independently viola-
tive of Section 8(a)(1) of the National Labor Relations Act,
as amended (herein Act). One of these acts of interrogation
is identical with the objection to the election which was
deemed worthy of a hearing, and a disposition of the alleged
8(a)(1) violations will be dispositive of the entire matter.
t Respondent apparently informally agreed with the General Counsel that
the allegations as set forth in par 7 of the complaint were essentially true and
that he did not wish to contest the accuracy of that allegation . The General
Counsel and the Respondent joined in asking the Administrative Law Judge
to include in any notice , which the Respondent might be directed to post,
appropriate language covering the allegations of par 7 This will not be done,
however The mere fact that the comment reflected in par 7 of the complaint
may have been made does not prove that there was any discrimination,
interference , or coercion flowing therefrom In the absence of something
more, and particularly under the circumstances of this case when it would
not materially change the remedy , it is felt it would be improper to try and
include some kind of appropriate language in the notice to be posted
FAIRBANKS MEDICAL & SURGICAL CLINIC 743
Upon the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The Fairbanks Medical & Surgical Clinic, Inc., is an Alas-
ka corporation engaged in providing medical and health
care services at Fairbanks, Alaska. During the past calendar
year, which period is representative of Respondent's opera-
tions generally, Respondent derived revenue from the pro-
visions of its health care services in a value exceeding
$500,000 and purchased goods and services from outside the
State of Alaska in a value exceeding $50,000. On the basis
of these admitted facts, I find that Respondent is, and at all
material times herein has been, an employer within the
meaning of Section 2(2) of the Act and has been engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
The Retail Clerks Union , Local 1689 , chartered by Retail
Clerks International Association , AFL-CIO, is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues herein involve the resolution of the conflict in
testimony as to exactly what was said on three separate
occasions in August and September 1973 when
Respondent's supervisors are alleged to have interfered
with, restrained, or coerced employees in violation of Sec-
tion 8(a)(1) of the Act.
B. The Conversation Between Nurse Cathy Johnson and
Joseph Colwell, Clinic Administrator
Cathy Johnson was a registered nurse employed by Re-
spondent who worked something less than a 40-hour work-
week. According to Clinic Administrator Colwell, she was
the first part-time regular employee hired by the clinic. She
worked for the clinic from April 1972 to mid-November
1973.
There is a conflict as to when her relevant conversation
with Colwell occurred. Cathy Johnson was quite positive it
was September 18, 1973. Colwell is very certain that it was
closer to September 5 (it might have been on the 5th, 6th,
or 7th) because September 5 was payday. Cathy Johnson
had her paycheck in her hand at the time of the discussion
and Colwell was on vacation from September 9 through
September 16, thus it seems most unlikely that Mrs. John-
son would have retained her paycheck without cashing it for
that extended period of time.
I am inclined to believe the conversation occurred earlier
in the month because Johnson's testimony clearly indicates
that she did not have a clear-cut picture of just how her
"fringe benefits" were actually affected by her less-than-
full-time employment status; she acknowledged that "many
times" she had questions concerning her paycheck, and she
had been told that someone was going to have to go over
the personnel records and ascertain just what she was enti-
tled to by way of benefits. While it appears that the conver-
sation may have been initiated by Colwell, it occurred in an
office that was used by the staff as a coffeeroom and ap-
pears to have been in response to Cathy Johnson's questions
regarding her paycheck and fringe benefits. Undoubtedly
the discussion included a consideration of what might tran-
spire in the event the Union was selected as bargaining
agent for the employees; nevertheless, the discussion ap-
pears to have arisen because of Johnson's questions directed
to Colwell. In any event, after careful analysis, I can find
nothing in their conversation to have been either coercive
or a threat to the employees' Section 7 rights. I shall recom-
mend dismissal of that portion of the complaint
C. Conversation Between Kenneth Holt, Husband of an
Employee of Respondent, and Colwell
The complaint alleges that during the last week in August
1973 the Respondent, through its administrator, Colwell,
threatened a spouse of an employee with the loss of
Respondent's profit-sharing plan if the Union became the
bargaining agent.
The evidence reveals that Kenneth Holt is the husband of
Thelma Holt, a licensed practical nurse, who has been em-
ployed by Respondent for nearly 6 years. Some time in the
latter part of August 1973, Kenneth Holt was in the clinic
as a patient and saw Mr. Colwell walk by the door of the
room he occupied and thereupon asked Colwell "if he could
give me just a minute" Holt then inquired of Colwell what
possible effect unionization would have on the profit-shar-
ing program .2 Mr. Holt was never able to testify that Mr.
Colwell told him the employees would lose their profit-
sharing plan if the Union was selected as the bargaining
agent although he was given that opportunity on both direct
and cross-examination. Mr. Holt's strongest words were,
"His answer indicated the program would go down the
drain." In contrast to the impressionistic vague testimony of
Mr. Holt, Mr. Colwell testified-
I told him that the profit-sharing plan or any kind of
a retirement plan would be a matter subject to collec-
tive bargaining and that there was no way that I could
tell him exactly what the outcome of that collective
bargaining would be.
There was a possibility that the plan would remain
the same as it is, a possibility that the present plan that
we have would be improved, and there was also a possi-
bility that the Retail Clerks Union would draw up a
2 The evidence indicates that Respondent had a rather good IRS approved
profit-sharing plan, or retirement trust, into which Respondent placed a
substantial sum of money each year on behalf of the individual employees,
but, in the event employees' services ceased for reasons other than disability,
retirement, or death, the most recent 2 years of contributions were lost to the
individual in addition, it would appear that the moneys were invested wisely,
and the employees benefited from the appreciation Employees could volun-
tarily contribute an additional 10 percent of their salary to the program
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plan and put in the same pension plan that they have
for their other union members in the community. There
was just no way I could tell him just exactly what would
happen to his profit-sharing plan if the Union should
win the election.
When Holt was asked if he told his wife what Mr. Colwell
had said to him, he replied, "We discussed it... .
Under all the circumstances, including the manner in
which the conversation was initiated and the failure of Ken-
neth Holt to relate anything more than vague impressions
of the conversation, I am of the opinion that Colwell' s testi-
mony of what was said is much more accurate and not in
violation of the law. Discussion of "fringe benefit" pro-
grams, if not change, is an inevitable consequence of collec-
tive bargaining. I am of the opinion that Colwell merely
tried to relate realistic probabilities of what could result
from negotiating with the Union and did not threaten a loss
of the profit-sharing plan.
D. The Conversation Between Assistant Administrator
Hlinka and Nancy Templeton on or About
September 13, 1973
Nancy Templeton was a receptionist employed by Re-
spondent from July 1971 until January 3, 1974. The com-
plaint alleges that Respondent through the assistant
administrator and controller, Joseph Hlinka, interrogated
Templeton regarding her union activities in violation of her
Section 7 rights.
According to Mrs. Templeton on Wednesday before the
representation election (which would have been September
12), she went to work about 1 p.m. About 2 p.m. she re-
ceived a call from Joe Hlinka asking her to come to his
office. About 3 p.m. she went to his office, and there behind
closed doore she was querried concerning the Union. As she
expressed it, "Mr. Hlinka began by saying that if I wanted
to leave at any time I was free to do so-if I didn't want to
talk with him that was perfectly all right but that he did
want to discuss the Union with me. He said he couldn't
understand why someone of my intelligence would be inter-
ested in belonging to a union-and in the course of the
conversation we discussed some of the problems in the clin-
ic that perhaps the Union would resolve." Templeton fur-
ther related that, during the course of this conversation,
Hlinka asked if she (Templeton) and Cathy Brooks (a nurse)
were for the Union because of an incident wherein Hlinka
had removed a "sign" which the two girls were responsible
for.3 Their conversation continued until approximately 5:15
p.m. and covered many aspects of the personnel and general
working conditions in the clinic. According to Hlinka and
Templeton, there was a rather free exchange of information
and views.
Hlinka's explanation of the occurrence of this conversa-
3 This incident had occurred sometime previous to the union organizing
campaign . Hlinka had been instructed to improved the appearance of the
clinic and to remove the "homemade" paper signs and replace them with
appropriate printed signs where they were necessary . In the course of car-
rying out this instruction , a "homemade" sign that had been displayed by
Templeton and Brooks was temporarily removed and a small misunderstand-
ing or disagreement resulted.
tion was as follows:
I attended a meeting which was also attended by doc-
tors, and they were talking about some employee dis-
satisfaction-we were nearing a union election-and
Nancy Templeton was mentioned by one doctor any-
way as being unhappy, that she could not speak to
management and what else-but there were other
things that were mentioned to express dissatisfaction
on the part of Nancy. The only thing that I could recall
in my short career at the clinic of any run-in or expo-
sure to Nancy had been that one incident-and I
thought it was a petty incident, and I didn't feel that
it warranted someone being entirely unhappy, and I
was curious as to why she was unhappy.
While Hlinka placed a slightly different emphasis on what
was said and how the conversation evolved, he basically
does not refute Templeton's version and specifically ac-
knowledged having called her at her work station and asked
her to report to his office.
The long conversation that occurred between Templeton
and Hlinka occurred on the same day a notice had been
posted or generally distributed to the employees indicating
that a meeting would be held at Nancy Templeton's house
"where anyone who had questions they wanted to ask could
come and hopefully get answers for them." The meeting at
Templeton's house was to be held on Friday or Saturday
just before the election, which was on Wednesday, Septem-
ber 19th. Templeton discussed her conversation (with Hlin-
ka) with a number of other employees. Questioning of
employees concerning their union sympathies is not viewed
as an expression of views or opinions within the meaning of
Section 8(c) of the Act because the purpose is not to express
views but to obtain the views of those persons questioned."
Under all the circumstances, including the manner and
place of this conversation and the fact that it was trans-
mitted to other employees, I find it to be coercive and to
have interfered with the employees' Section 7 rights and
thus violative of Section 8(a)(1) of the Act. Conduct viola-
tive of Section 8(a)(1) is, a fortiori, conduct which interferes
with the exercise of a free and untrammled choice in an
election. This is so because the test of conduct which may
interfere with the "laboratory conditions" for an election is
considerably more restrictive than the test of conduct which
amounts to interference, restraint, or coercion which vio-
lates Section 8(a)(1).5 I shall, therefore, direct that the elec-
tion results be vacated and set aside and a new election
conducted at a time deemed appropriate by the Regional
Director. In finding Hlinka's questiong of Templeton to be
a violation of Section 8(a)(1) of the Act, I am not unmindful
of Respondent's argument that Hlinka was not acting pur-
suant to instructions from either Respondent 's management
or the physicians, and therefore his conduct was not within
his agency powers. However, Hlinka was the assistant ad-
ministrator and controller, and the rank-and-file employees
would not have a basis for making such a determination.
Nor was there any evidence introduced to indicate Rt.spon-
dent ever disavowed or disassociated itself from the improp-
er conduct and took steps to inform the employees that
Struksnes Construction Co., Inc., 165 NLRB 1062 (1967).
5 Da!-Tex Optical Company Inc. 137 NLRB 1782 (1962).
FAIRBANKS MEDICAL & SURGICAL CLINIC
Hhnka was not acting at management's direction. An em-
ployer is normally responsible for statements or acts of his
supervisors which constitute interference with the Section 7
rights of his employees.7
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)(1) of the
National Labor Relations Act, as amended, I shall recom-
mend that the Respondent be ordered to cease and desist
therefrom and to take certain affirmative actions designed
to effectuate the policies of the Act. I shall also recommend
that the election heretofore held on September 19, 1973, be
set aside and vacated and a new election conducted at an
appropriate time as directed by the Regional Director for
Region 19.
Upon the basis of the above findings of fact and upon the
entire record in this case, I reach the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 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. By the act of questioning and discussing the views and
attitudes of employee Nancy Templeton toward the Union
in the office of Joseph Hlinka, assistant administrator and
controller of Respondent, Respondent has interfered with
and coerced the employees in violation of Section 8(a)(1) of
the Act and has, thereby, interferred with the "laboratory
6 Colwell testified that there had been both oral and written instructions
issued to all supervisors and physicians not to interrogate employees in
regard to union activities There were no written instructions or memoran-
dums relating to this subject offered in evidence Moreover, there was no
evidence to indicate the employees were aware of the instructions issued to
the supervisors
N L R B v La Salle Steel Co, 72 NLRB 411 (1947), affd. 178 F 2d 829,
(C.A 7, 1949); J S Abercrombie Company v N L R B , 83 NLRB 524 (1949),
appeal denied 180 F 2d 578 (C A 5, 1950)
745
conditions" necessary for a free and fair election.
4. The foregoing violations are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'
Respondent, Fairbanks Medical and Surgical Clinic, Inc.,
its officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Questioning employees regarding their union activi-
ties and those of their fellow employees.
(b) In any like or related manner interfering with, re-
straining, or coercing any employee in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Post at its Fairbanks, Alaska, clinic copies of the
attached notice marked "Appendix." 9 Copies of said notice
on forms provided by the Regional Director for Region 19,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in a conspicuous place, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Decision, what
steps have been taken to comply herewith.
IT 1S FURTHER RECOMMENDED that Case 19-RC-6668 be se-
vered and remanded to the Regional Director of Region 19
with instructions to vacate and set aside the election held on
September 19, 1973, and to conduct a new election at the
earliest date deemed feasible for a fair and free expression
of the will of the employees
8In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
9 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."