Medical Center at Bowling Green

National Labor Relations Board - Board Decisions

Feb 21, 1984

268 N.L.R.B. 985 (N.L.R.B. 1984)

MEDICAL CENTER AT BOWLING GREEN
Bowling Green-Warren County-Community Hospital
Corporation d/b/a The Medical Center at Bowl-
ing Green, Kentucky and Kentucky Nurses As-
sociation, affiliated with the American Nurses
Association. Case 9-CA-17467
21 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 September 1982 Administrative Law
Judge William F. Jacobs issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions as modified and to adopt the recom-
mended Order.
The Respondent contends that its grant of previ-
ously unscheduled and indefinite wage increases to
nonunit employees, while withholding the wage in-
creases from the registered nurses, was lawful
under the Board's holdings in, inter alia, Singer Co.,
199 NLRB 1195 (1972), and Uarco Inc., 169 NLRB
1153 (1968). While we agree with the Respondent
that Daybreak Lodge Nursing Home, 230 NLRB
800 (1977), cited by the judge, may be distin-
guished on its facts because Daybreak involved a
denial of a definite benefit to an individual employ-
ee due to union activities, we find no merit in the
Respondent's contention that its denial of the wage
increase to the petitioned-for registered nurses was
lawful under our holdings in Singer, supra, and
other cases.
In Singer, and many other cases, we set forth the
axiom that an employer must grant or withhold
benefits during a period of employee union activi-
ties in the same manner as it would in the absence
of those activities. Further, when an employer
grants or withholds a benefit after the commence-
ment of Section 7 activity, it must have an explana-
tion for the timing of its action other than the pres-
ence or absence of union activities, such as a decla-
ration to the employees prior to the onset of union
activities of a wage increase definite in amount to
be implemented at a particular time. Where an em-
ployer, prior to the commencement of Section 7
activities, announces to the employees that it in-
tends to grant a benefit, but leaves the amount and
time to be determined at its discretion after a con-
dition precedent which is to occur subsequently
268 NLRB No. 133
(such as completion of a wage survey), the forego-
ing principles are put under a strain. In this last sit-
uation, we have held that when an employer pro-
poses to its employees a wage increase to be
awarded in the future after it conducts a wage
survey, and in the interim the employees begin or-
ganizational activities, such as the filing of a repre-
sentation petition, the employer does not violate
the Act or commit objectionable conduct if it then
tells the employees that it cannot exercise its dis-
cretion to determine the amount and time of a
wage increase pending the outcome of the union
activities or election. See, e.g., Uarco Inc., supra.
Here, however, the Respondent failed to follow
this course.
In this case, the Respondent announced to all its
employees that it was conducting an area wage
survey to determine what wage adjustments it
would implement at a future date. After the Union
filed a representation petition for a unit of regis-
tered nurses, the Respondent received the results of
its wage survey. Since the amount and time of the
wage increases had been left to the Respondent's
discretion in the original announcement, it had the
option of taking no action at all. Instead, the Re-
spondent exercised its discretion by awarding wage
increases to the group of employees outside the pe-
titioned-for registered nurse unit. In effect then, it
denied increases to the unit employees because of
their exercise of Section 7 rights, i.e., the pending
election. We find that the denial of the wage in-
creases pursuant to the prior announced wage
survey to employees in a petitioned-for unit reason-
ably tended to interfere with the employees' Sec-
tion 7 rights and thereby violated Section 8(a)(X1).
We further find that the Respondent's admitted
motive for its conduct was discriminatory and
indeed did discriminate against the employees in
the petitioned-for unit in violation of Section
8(a)(3) of the Act. We also find, finally, that the
Respondent's silence, with respect to the reason for
its denial of the increases to the petitioned-for em-
ployees, did not negate the unlawful discriminatory
impact of its conduct.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Bowling
Green-Warren County-Community Hospital Cor-
poration d/b/a The Medical Center at Bowling
Green, Kentucky, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was tried before me on August 18, 1982, at Bowling
Green, Kentucky. The charge was filed on September
28, 1981,' by Kentucky Nurses Association, herein called
the Union. The complaint issued November 3, 1981, al-
leging that Bowling Green-Warren County-Community
Hospital Corporation d/b/a The Medical Center at
Bowling Green, Kentucky, herein called the Respondent,
violated Section 8(a)(1) and (3) of the National Labor
Relations Act. More particularly the complaint alleges
that the Respondent denied its registered nurses a pay
raise which it implemented for all other employees be-
cause they joined, supported, and assisted the Union.
The General Counsel and the Respondent were repre-
sented at the hearing and were afforded full opportunity
to be heard, present evidence, and argue. Both the Gen-
eral Counsel and the Respondent filed briefs. Upon the
entire record and after giving due consideration to the
briefs, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Kentucky corporation with an
office and place of business in Bowling Green, Ken-
tucky, has been engaged as a health care institution in
the operation of a hospital providing in-patient and out-
patient medical and professional care services for the
general public. During the past 12 months, the Respond-
ent in the course and conduct of its business operations
derived gross revenues in excess of $500,000 and pur-
chased and received at its Bowling Green, Kentucky fa-
cility products, goods, and materials valued in excess of
$50,000 from points outside the State of Kentucky. The
complaint alleges, the answer admits, and I find that the
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
a health care institution within the meaning of Section
2(14) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
I11. THE ALLEGED UNFAIR LABOR PRACTICES
The hearing occurred without the presentation of testi-
mony by witnesses and was tried on the basis of docu-
ments and a stipulation. According to the evidence thus
supplied the following occurred:
On January 21, 1981, the Bowling Green-Warren
County Community Hospital Corporation board of direc-
tors met in regular session. At this meeting Chairman
Joel Rodgers reported that the Salary, Wage & Benefit
Committee had recommended that the Respondent "pro-
ceed as rapidly as possible to implement the framework
Hereafter, all dates refer to 1981 unless otherwise noted.
of the Meidinger Plan 2 and to refer the Meidinger Plan
to [the] administration and [to] the Finance committee
for their recommendation on salary percentage changes
for future augmentation of the plan." The committee's
recommendations were approved.
On March 5, the Union filed a petition to represent all
registered nurses at the Respondent's facility. On March
13, Administrator of the Medical Center John C. Des-
marais contacted his counsel by letter advising him that
the hospital employees had been informed of the Mei-
dinger study through postings on bulletin boards and by
discussions with department heads. Specifically, Desmar-
ais states that, although the employees had not been ad-
vised of the date or of the dollar amounts involved, they
were advised of changes to be made, obviously a prom-
ise of wage increases. Desmarais then voiced his doubt as
to the appropriateness of implementing the wage increase
for the employees who were to be included in the bar-
gaining unit in the upcoming election, i.e., the registered
nurses. He added, significantly:
Balancing this concern, however, is my desire to
not penalize other hospital departments and employ-
ees who deserve adjustments.
On March 17 the Respondent's counsel replied, in rele-
vant part, that if Desmarais had already announced the
amount of the wage increase and the date that it was to
become effective he was bound to effectuate the an-
nounced wage increase. Counsel advised further that
since Desmarais had not announced the specific amount
of increases nor the date of implementation he should
withhold the implementation of the Meidinger Plan inso-
far as "employees petitioned for by the KNA" are con-
cerned in order to avoid an unfair labor practice charge
but to implement the plan, that is grant the wage in-
creases to nonunit employees.
On April 1, in accordance with the advice of counsel,
wage increases were awarded to the Respondent's other
employees but were withheld from the registered nurses
"so as not to upset the laboratory conditions in the elec-
tion scheduled for May 14, 1981." Thus, it is admitted
that but for the advent of the Union and the representa-
tion election which was scheduled the registered nurses
would have received a wage increase as had the other
employees. It has long been held that it is a violation of
Section 8(a)(1) and (3) for an employer to deny a sched-
uled wage increase to its employees because of the pend-
ency of a union campaign, 3 and in accordance with case
law I find that a violation was committed in the instant
case.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
and in an industry affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act and a health care
2 A study to determine if wage increases should be granted to the Re-
spondent's employees.
a Daybreak Lodge Nursing & Convalescent Home, 230 NLRB 800
(1977), enfd. 585 F.2d 79 (3d Cir. 1978). Similarly, it is of no consequence
that the violative act was pursuant to advice of counsel. GC. Murphy
Co., 223 NLRB 604 (1976).
986
MEDICAL CENTER AT BOWLING GREEN
institution within the meaning of Section 2(14) of the
Act.
2, The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. By withholding scheduled wage increases from em-
ployees because of the Union's campaign and the forth-
coming representation election, the Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(l) and (3) of the Act.
REMEDY
Having found that the Respondent unlawfully with-
held scheduled wage increases, I shall recommend that
the Respondent be required to grant to each employee
such wage increases as would have been granted in the
normal operation of its facility, and make whole each
such employee for any loss of benefits suffered by reason
of the Respondent's unfair labor practices.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended
due and the rights of employment under the terms of this
recommended Order.
(c) Post at its location in Bowling Green, Kentucky,
copies of the attached notice marked "Appendix."6
Copies of said notice, on forms provided by the Regional
Director for Region 9, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days thereafter in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or.covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of of this Order what steps the Re-
spondent has taken to comply.
6 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
ORDER 4 APPENDIX
The Respondent, Bowling Green-Warren County-
Community Hospital Corporation d/b/a The Medical
Center at Bowling Green, Kentucky, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Withholding scheduled wage increases from em-
ployees because of the Union's campaign and the forth-
coming representation election.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Grant the scheduled wage increases for employees
discriminated against as found above, and make them
whole for any loss of earnings they may have suffered
by the Respondent's failure to grant such increases earli-
er. Interest on moneys owed said employees are to be
computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651.a
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary and relevant to analyze the amount of backpay
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
6 See, generally, Isis Plumbing Ca, 138 NLRB 716 (1962).
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT withhold scheduled wage increases for
employees because of the Union's campaign or because
of representation proceedings which may be pending.
WE WILL grant the scheduled wage increases for em-
ployees discriminated against by us and make them
whole.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights under the Act.
BOWLING GREEN-WARREN COUNTY-COM-
MUNITY HOSPITAL CORPORATION D/B/A
THE MEDICAL CENTER AT BOWLING
GREEN, KENTUCKY
987