Medical Center of Ocean County

National Labor Relations Board - Board Decisions

Dec 27, 1994

315 N.L.R.B. 1150 (N.L.R.B. 1994)

1150
315 NLRB No. 140
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.
2 No exceptions were taken to the judge’s conclusion that he need
not reach and determine further allegations (complaint pars. 5(c) and
(d)) involving Schibla’s conversations with employee Lindsay con-
cerning a threatened loss of pension benefits or Schibla’s alleged in-
terrogation of employee Maxson both occurring on or about May 14,
1993, or to his dismissal of complaint allegation 6(b) regarding an
alleged promise of benefit to employee Mack. Further, no exceptions
were taken to the judge’s finding that the challenge to the ballot of
Albert Behring be overruled.
1 The underlying charge in Case 4–CA–21694, filed by the Union
(International Union of Operation Engineers, Local 68-A, AFL–CIO)
was served on Respondent (Medical Center of Ocean County) on
May 12, 1993, with an amended charge filed on August 12, 1993,
and served on August 13, 1993. The charge in Case 4–CA–21793,
filed by the Union on June 15, 1993, was served on Respondent on
June 16, 1993. The charge in Case 4–CA–21794, filed on June 15,
1993, was served on Respondent on June 16, 1993.
Medical Center of Ocean County and International
Union of Operating Engineers, Local 68-A,
AFL–CIO. Cases 4–CA–21694, 4–CA–21793, 4–
CA–21794, and 4–RC–18096
December 27, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On July 14, 1994, Administrative Law Judge Robert
W. Leiner issued the attached decision. The Respond-
ent and Charging Party filed exceptions and supporting
briefs and the General Counsel filed cross-exceptions
and a supporting brief.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
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,1 and con-
clusions2 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, Medical Center of Ocean
County, Point Pleasant, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
IT IS FURTHER ORDERED that the election conducted
on June 24, 1993, is set aside and that the Regional
Director shall direct a second election whenever he
deems it appropriate.
Carmen P. Cialino Jr., Esq., for the General Counsel.
David F. Jasinski, Esq. (Jasinski & Paranac, P.C.), of New-
ark, New Jersey, for the Respondent.
Raymond G, Heineman Jr., Esq. (Kroll & Gaechter), of
Verona, New Jersey; and Jeffrey K. Lee, Organizer IUOE
Local 68-A, of West Caldwell, New Jersey, for the Union-
Petitioner.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter was heard in Philadelphia, Pennsylvania, on
five occasions on and between April 11 and 20, 1994, on
General Counsel’s consolidated complaint, dated August 16,
1993,1 which alleges various acts of independent violation of
Section 8(a)(1) of the Act together with the unlawful dis-
charge of an employee, John Cilento, in violation of Section
8(a)(3) and (1).
On May 27, 1993, the Regional Director for Region 4
issued a Decision and Direction of Election in Case 4–RC–
18096 and on November 2, 1993, issued a supplemental de-
cision on objections to election and challenged ballots.
Thereafter, in the presence of and following various inter-
mediate procedures including Respondent’s request for re-
view of the Regional Director’s supplemental decision, the
Regional Director, on January 28, 1994, ordered that the
hearing on objections and challenges be consolidated with
the above-captioned unfair labor practice proceeding, all of
which was to be heard by a duly designated administrative
law judge.
Respondent filed a timely answer admitting certain allega-
tions of the consolidated complaint, denying others, and de-
nying the commission of unfair labor practices.
At the hearing, the parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence, and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to file posthearing briefs which
have been carefully considered.
On the entire record, including the briefs, and on my most
particular observation of the demeanor of the witnesses as
they testified, comparing such testimony with the testimony
of both adverse and sympathetic witnesses, the interest of the
witnesses and documentary evidence, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
The complaint alleges, Respondent admits, and I find, that
Respondent, Medical Center of Ocean County (MCOC), a
New Jersey corporation, has been engaged in the operation
of an acute care hospital with facilities in Brick and Point
Pleasant, New Jersey. In the past year, in conducting its busi-
1151MEDICAL CENTER OF OCEAN COUNTY
2 Respondent’s admissions at the hearing, together with admissions
in the pleadings, demonstrate, as Respondent concedes, that at all
material times the following persons have been and are its super-
visors and agents within the meaning of Sec. 2(11) and (13) of the
Act: John T. Gribbin, president; Charles Jarvis, vice president; David
Kaplan, vice president; Robert Vogel, assistant director, Point Pleas-
ant facility; Victor Schibla, assistant maintenance director, Point
Pleasant facility; and Martin Giacobbe, construction manager.
Frances Keane, Respondent’s assistant vice president for employee
relations, is also a supervisor and agent within the meaning of the
Act.
3 In the May 27, 1993 Decision and Direction of Election, the Re-
gional Director found, inter alia, that William Gaunt, a leadman in
the power plant, was not a supervisor within the meaning of the Act
and was properly included in the above skilled maintenance unit.
Gaunt voted in the June 24 election without challenge.
ness operations, Respondent received gross revenues in ex-
cess of $500,000 and purchased and received materials and
supplies valued in excess of $50,000 directly from points
outside the State of New Jersey. Respondent concedes, and
I find, that at all material times it has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the act and has been a health care institution with-
in the meaning of Section 2(14) of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find, that
at all material times, the Union (International Union of Oper-
ating Engineers, Local 68-A, AFL–CIO) has been and is a
labor organization within the meaning of Section 2(5) of the
Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Medical Center of Ocean County, a New Jersey nonprofit
acute care hospital system consists of two primary care fa-
cilities (Point Pleasant Hospital and Brick Hospital, with a
total of over 400 beds), a half-dozen satellite facilities
throughout Ocean County, and a further facility in Mana-
hawkin, New Jersey. MCOC employs over 2000 employees
at these facilities.
On April 12, 1993, the Union filed a petition for certifi-
cation originally requesting representation of all regular full-
and part-time skilled maintenance employees employed at
Respondent’s Point Pleasant facility. Thereafter, the Union
amended its petition to include all skilled maintenance em-
ployees employed both at Point Pleasant and Brick Hospitals.
Following hearings pursuant to this petition (Case 4–RC–
18096) on May 3 and 11, 1993, the Regional Director, on
May 27, 1993, issued a Decision and Direction of Election.
The parties having agreed that a unit of skilled maintenance
employees at the Brick and Point Pleasant facilities was ap-
propriate, the Regional Director found that the following
skilled maintenance unit was the appropriate unit:
All full-time and regular part-time skilled maintenance
employees, including lead stationary engineers, station-
ary engineers, lead heating, ventilation and air condi-
tioning (HVAC) mechanics and HVAC mechanics,
electricians, maintenance mechanics, maintenance help-
er-drivers, locksmiths, carpenters, painters, masons,
plumbers, helpersand bio-medical technicians, employed
at the Employer’s Brick and Point Pleasant Hospital Di-
visions, excluding all other employees, the Power Plant
Manager, Maintenance Director, Assistant Maintenance
Director, Guards and Superiors as defined in the Act.3
On June 24, 1993, the Board conducted a secret-ballot
election in the above skilled maintenance unit wherein the
tally of ballots showed:
Approximate number of eligible voters 40
Void Ballots 0
Votes cast for Petitioner 18
Votes case against participating
labor organization 20
Valid votes counted 38
Challenged ballots 6
Valid votes counted plus
challenged ballots 44
On June 29, 1993, the Union filed objections to Respond-
ent’s conduct affecting the results of the election. Of the nine
specified paragraphs of union objections affecting the results
of the election, substantially all, as hereafter noted, were in-
corporated in the instant consolidated complaint as parallel
acts of alleged unfair labor practice committed by Respond-
ent.
On January 28, 1994, the Regional Director, having dis-
posed of three of the six challenges, ruled, inter alia, with
regard to the three remaining challenged ballots, that the
challenges concerning John Cilento, Albert Behring, and
Norman Piercy presented questions of fact requiring an evi-
dentiary hearing for resolution. He ordered the hearing on
these three challenges be consolidated with the unfair labor
practice hearing and the hearing on objections. At the hear-
ing, all counsel agreed that the unfair labor practice allega-
tions in the complaint and the objections to the election were
substantially coextensive.
B. Violations of Section 8(a)(1) of the Act
1. The May 14, 1993 ‘‘pizza party’’
There is no dispute that at noon, sometime in mid-May
1993, Maintenance Department Supervisors Robert Vogel
and Victor Schibla convened a meeting of about 30 skilled
maintenance employees, power plant employees, and bio-
medical employees in the Point Pleasant medical staff board
room next to the cafeteria. Although in the past, Respond-
ent’s president, Gribbin, and vice president, Jarvis, had met
with employees chosen on a random basis (Gribbin) or, rare-
ly (Jarvis), on a departmental basis, there is no dispute that
there had never been an ‘‘off-the-record’’ pizza party held by
Vogel or Schibla only for the skilled maintenance employees
and other unit employees. Michael Maxson, a carpenter and
unit employee, employed by Respondent for about 4 years,
had never before experienced such a meeting. After the em-
ployees finished their pizza, Supervisor Vogel asked them
only if they had any questions.
Employee Dan Blunk said that he would start the con-
versation and said that if the Union got into Respondent’s
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Cilento worked at the Jersey City Medical Center for 14 years
as a steam fitter/plumber/mechanic.
hospital, the unit employees would lose their jobs because
Respondent ‘‘would get an outside concern in and that Re-
spondent would hire [sub-contractor] Service Master.’’ Blunk
said that he had seen it done before. Vogel had assured the
employees at the beginning of the meeting that he wanted to
hear if they had anything to talk about and that they would
have no worries from management coming back to them as
to what was said; that it was ‘‘off-the-record.’’ (Tr. 28.) How
Blunk may have known that Vogel and Schibla desired ques-
tions about the Union is not known.
In response to Blunk’s statement, leadman William Gaunt
called Blunk ‘‘an asshole’’ and they went ‘‘into each other’s
face.’’ (Tr. 55–56.) In order that the ensuing yelling match
go no further, employees pulled Gaunt away and hustled him
out of the room. The meeting continued.
Thereafter, Vogel told the group that if the Union got in
‘‘we are not going to be getting along like we are now, we
are not going to be able to have these types of meetings.’’
(Tr. 29.) Maxson and John Cilento, who was sitting nearby,
recalled that Cilento then said that he had worked under a
union shop before and had never had any problems.
Cilento recalled that he said that he had belonged to a
union before and that management and employees had gotten
along fine. (Tr. 109–110.) In response, Vogel asked him why
he left the job [if he was satisfied with his prior job]. Cilento
told him he left his prior job because of the commutation in-
volved.4 When Cilento told him he left the job because of
commutation problems, Vogel asked him if the union had
tried to get him another job. Cilento answered that he did not
ask the union to get him another job because, in fact, he
started work for Respondent. (Tr. 110–111.)
After the meeting ended, Cilento and Maxson left the
room and were walking in the basement hallway to return to
their jobs (Cilento is a licensed plumber) when Supervisors
Vogel and Schibla approached them. Vogel asked Cilento
(Tr. 33): ‘‘Why don’t [you] give management 6 months to
straighten up all [employee] problems. If after the 6 months
anything isn’t fixed up, you guys can go ahead and start with
the Union again and you’ll have no problem getting the vote
in. You’ll have 100 percent of the vote.’’
In this same conversation, Vogel asked Cilento and
Maxson (Tr. 33) why they did not come to Vogel first before
going to the Union and Maxson told him that (Tr. 33):
‘‘Well, no one ever listened to us in the past, why should
they start to listen to us now?’’ Cilento then broke in: ‘‘Why
should we give up the union now? If we do, we will lose
our jobs.’’ When Vogel responded that ‘‘that would be ille-
gal,’’ Maxson told him: ‘‘Yeah, well, you can make up rea-
sons.’’ Vogel asked them to try to convince the (unit em-
ployees) to ‘‘forego the Union to give management a chance
. . . to hear our grievances and to let management try and
work out [our problems] as . . . long as they did not go
union.’’ (Tr. 111.)
Respondent’s Version of the Pizza Meeting
and Thereafter
Respondent presented two witnesses relating to the pizza
meeting, Victor Schibla and Robert Vogel. The testimony of
neither witness related to events which occurred at the pizza
meeting itself. In this regard, therefore, the testimony of
Cilento and Maxson stands unrefuted on the record. It is
credited.
With regard to events in the hallway immediately follow-
ing the pizza meeting, Victor Schibla and Robert Vogel testi-
fied.
Victor Schibla
Schibla testified that he recalled that Cilento asked Vogel
what Vogel would do ‘‘if he were them,’’ and Vogel re-
sponded that he ‘‘would give the hospital a chance for 6
months [and] if you weren’t happy, you could vote the union
in.’’ (Tr. 607.) In response to a leading question as to wheth-
er he left the other participants during the conversation,
Schibla said that he heard no one else say anything. (Tr.
608.) I do not credit this answer.
The substance of Schibla’s testimony doe not contradict
the testimony of Maxson and Cilento. In large part, it cor-
roborates it. It is unclear from his testimony whether, during
a period of this hallway conversation among Maxson,
Cilento, and Vogel, Schibla, himself, was in their immediate
vicinity during the entire conversation. At one point, he testi-
fied, that he was about 16 to 20 feet, way from them during
the time they were talking. (Tr. 686.)
Robert Vogel
As in the case of Schibla’s testimony, Respondent chose
not to examine Vogel with regard to what occurred at the
pizza party itself. Like Schibla, Vogel places the meeting in
mid-May 1993, after which Vogel said he spoke with
Maxson and Cilento in the presence of Schibla while walking
in the hallway. Vogel, like Schibla, recalls Cilento asking
‘‘what would [Vogel] do in my shoes.’’ (Tr. 735–736.)
Vogel recalls his answer was: ‘‘I would give the hospital a
second chance. . . . They treat you well . . . they pay you
pretty good, normal. Benefits are good. Just give them the
opportunity to meet your needs.’’ (Tr. 736.)
Discussion and Conclusions
The evidence shows that the pizza party meeting occurred
in mid-May 1993 and thus about a month following the fil-
ing and service of the Union’s election petition. The com-
plaint alleges (par. 6(a)) that in substance, on or about May
14, 1993, Respondent violated Section 8(a)(1) of the Act by
promising employees improved benefits in order to discour-
age them from selecting the Union as their collective-bar-
gaining representative and solicited employees to convince
other employees to vote against union representation.
Maxson’s version of the hallway conversation after the
pizza party was that Vogel asked Cilento and Maxson why
they did not give Respondent ‘‘6 months to straighten up all
their problems’’ after which they could vote the Union in if
the solution to the problems were not made.
Schibla agreed that Vogel told Cilento and Maxson that
the employees should give Respondent a chance for 6
months and then if the employees were not happy (with the
results) they could vote the Union in. (Tr. 607–608.) Schibla,
I find, correctly construed this to mean a Vogel promise to
rectify past Respondent wrongs to the employees because, on
cross-examination, he testified that Vogel told Cilento and
Maxson to give the hospital a 6-month chance and ‘‘if we
1153MEDICAL CENTER OF OCEAN COUNTY
don’t do what you want to do, the union will be voted in
by the people.’’ (Tr. 686.) In short, Vogel, according to
Schibla, was promising the employees to rectify their prob-
lems in a 6-month period and if the Respondent failed to do
so, they should feel free to vote the Union in. This is a
promise of a benefit contingent on the employees surrender-
ing their rights to bring the Union in at least for 6 months.
Vogel’s promise of benefit is thus a quid pro quo for the sur-
render of statutory rights and violates Section 8(a)(1) of the
Act as alleged. The promise of benefits in exchange for sur-
render of statutory rights, especially during a union organiz-
ing campaign, is unlawful. St. Margaret Memorial Hospital
v. NLRB, 991 F.2d 1146, 1150 fn. 4 (3d Cir. 1993).
The second wing of the alleged violation is the assertion
that Vogel asked Maxson and Cilento not only to give Re-
spondent 6 months free of the Union to permit Respondent
to rectify unit employee problems, but to convince the other
unit employees to ‘‘forego the union and to give manage-
ment a chance to ‘meet [our] needs’ . . . to hear . . . our
grievances, and to let management to [sic] try an work out
any problems that the guys might have, as long as they
didn’t go Union.’’ (Tr. 111.) Vogel admits requesting for Re-
spondent a second chance ‘‘to meet your needs.’’ (Tr. 736.)
Maxson corroborates Cilento with regard to Vogel request-
ing that they speak to the other unit employees to ask them
to forego supporting the Union and Maxson told Vogel
‘‘we’ll see.’’ (Tr. 34.) Neither Schibla nor Vogel specifically
denied these elements in Vogel’s conversation with Cilento
and Maxson in the hallway. I do not accept Vogel’s testi-
mony that ‘‘nothing else was discussed’’ (Tr. 737) as deny-
ing Maxson’s and Cilento’s testimony. If it were to be con-
strued as a denial, I would discredit it.
The Board rule is that while an employer may unlawfully
ask employees to vote against the union, the employer vio-
lates Section 8(a)(1) when it asks an employee to make the
same request of other employees. Permanent Label Corp.,
248 NLRB 118, 132 (1980). I find that Vogel’s request to
Cilento and Maxson on or about May 14, 1993, that they
should try to convince other employees to give Respondent
another chance in order to meet their ‘‘needs’’ violates Sec-
tion 8(a)(1) of the Act. It is a solicitation of employees to
request their fellow unit employees to desist from engaging
in union activities and therefore is coercive within Perma-
nent Label Corp., supra; and it is also an unlawful promise
of benefits (Vogel: just give Respondent the opportunity to
‘‘meet your needs.’’ (Tr. 736). Schibla (Tr. 607–608, ‘‘give
the hospital a chance for 6 months . . . if you were not
happy [with the results], you could vote the union in).’’ Gen-
eral Counsel has thus proved the 8(a)(1) violations of para-
graph 6(a) of the complaint by a preponderance of credible
evidence.
I find it convenient here, rather than postponing this matter
to the discussion of Cilento’s discharge, to again note that
Respondent’s examination of Vogel and Schibla avoided in-
quiry concerning the events at the pizza meeting itself. This
despite unrewarding cross-examination of Maxson and
Cilento on the issue. (Tr. 144 et seq.) Therefore, the record
is uncontradicted (as both Maxson and Cilento credibly testi-
fied) that when Vogel told the pizza party unit employees
that if the Union got in, the Respondent and the unit employ-
ees were ‘‘not going to be getting along like we are now’’
(Tr. 29), Cilento responded that he had worked under a union
shop before and never had any problems in the past. (Tr. 29.)
In view of the mutual corroboration by Vogel and Maxson
(Tr. 29; Tr. 109–110), and in view of Respondent’s failure
to address, much less to deny, this testimony, I find that
Cilento made known his prior union membership when he
disputed Vogel’s assertion that the presence of a union
caused the employer and the employees to become alienated
from one another. He further identified himself as a union
member during the pizza party when he told Vogel that he
left his prior union job because of a commutation problem
and that it was his resulting employment with Respondent
which made it unnecessary to ask the union to find him a
further job.
Respondent nevertheless asserts that there was no record
evidence showing Respondent’s predischarge (June 9, 1993)
knowledge of Cilento’s union activities and support. (R. Br.
40, et. seq.) As above noted, neither Vogel nor Schibla de-
nied Maxson’s and Cilento’s otherwise credible testimony
concerning Cilento identifying himself as a union member
and ostensibly a union supporter.
Respondent argues with some heat that the one employee
in the pizza party audience who should have corroborated
Maxson’s and Cilento’s testimony but who failed to do so
was William Gaunt. Gaunt had identified himself as a union
supporter by taking immediate forceful issue with employee
Blunk’s statement that a union in the shop would cause Re-
spondent to subcontract out their unit jobs. (Tr. 411, Blunk
may have spoken for Respondent.) The problem with Re-
spondent’s argument, however, is that Respondent, on its
own cross-examination, established that immediately upon
Gaunt’s (‘‘ass-hole’’) confrontation with employee Blunk
(Respondent’s observer at the June 24 election), Gaunt’s co-
employees hustled him out of the room in order to avoid a
possible physical confrontation with Blunk. This occurred at
the opening of the meeting upon Blunk being the first em-
ployee to express his views. Cilento spoke and identified his
union sympathy only at a time subsequent to Gaunt’s exit.
The fact that Gaunt did not identify Cilento as a speaker at
the meeting is thus explained, on this record, by his having
been previously hustled out of the room. Further, even if
Cilento spoke while Gaunt was hustled out of the room,
there would be little reason for him to recall that Cilento was
then speaking, much less what he said. In the absence of Re-
spondent establishing (Tr. 411–412) that employee Gaunt
was in the room (Tr. 56) at a time that Cilento spoke,
Gaunt’s failure to identify (Tr. 411–412) Cilento as a speaker
has been explained. In any event, Respondent’s apparently
studied effort in avoiding having Schibla and Vogel testify
with regard to what occurred at the pizza meeting itself, to-
gether with the mutually corroborative testimony of Maxson
and Cilento, leads me to credit the testimony of Maxson and
Cilento in this regard. I therefore conclude, as will be noted
hereafter, that at all material times following May 14, 1993,
Respondent had actual knowledge that Cilento had been a
former union member and was presently a supporter of the
Union. In addition, I have credited Maxson’s and Cilento’s
testimony that their hallway conversation with Schibla and
Vogel included their statement: ‘‘Why should we give up the
Union.’’
Maxson and Cilento testified that they mentioned the sub-
stance of the post-pizza party hallway conversation with
Vogel to several other employees. Cilento testified, without
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Respondent appears to argue that Schibla was a low-level super-
visor and thus had no capacity to commit unfair labor practices. It
might be noted that in the second conversation, when Schibla di-
rected Mack to follow him outside the building to have a conversa-
tion, Mack protested that he was extremely busy at the time. Schibla
then did not hesitate to tell him: ‘‘Well, I’m the boss. I want you
to come with me now. I have something to talk to you about.’’ (Tr.
315.)
contradiction, that he spoke with employees Sacko, Gaunt,
and Skerchek. (Tr. 141.)
2. The alleged unlawful interrogation of and threats
made to employee Billy Mack (complaint par. 5(a))
Employee Billy Mack, a mechanic in the skilled mainte-
nance department, testified concerning two conversations he
had with his supervisor, Victor Schibla. (Tr. 313.) The first
was in mid-May 1993, and the second about 2 weeks there-
after. (Tr. 314.) Since Schibla testified only with regard to
the second conversation, which occurred outside the building
(Tr. 614), Mack’s testimony with regard to the first conversa-
tion is uncontradicted and credited.
In mid-May 1993, on worktime, Schibla called Billy Mack
into his office and closed the door. In the 10 years that
Schibla had worked for Respondent, he had never worked
with Schibla before this and had never been called into an
office for a conversation with his supervisor where the door
was closed.5
In the office, Schibla closed the door (Tr. 281) and told
Mack that he wanted to talk to him. He asked Mack:
‘‘What’s going on; what’s happening?’’ When Mack an-
swered: ‘‘Well, you want to know about the Union,’’ Schibla
said: ‘‘Now that you mention the union, we can bring it up.’’
(Tr. 280.) At this point, Schibla told Mack that he ‘‘could
lose [his] benefits, I could lose just about everything, and
. . . union dues can be real expensive.’’ Mack said he did
not understand; that he did not know much about it and that
he had attended only one union meeting. (Tr. 283–284.) That
was the end of the conversation and Mack went back to
work.
In this conversation, Schibla said nothing of the loss of
benefits resulting from negotiations (Tr. 312–313). The sub-
ject of loss of benefits through negotiations occurred 2 weeks
later in a second conversation. (Tr. 314–315.)
Discussion and Conclusion
Interrogation
There is no dispute that Schibla called Mack into the of-
fice and himself closed the door telling Mack that he wanted
to talk to him. When Schibla asked the question: ‘‘What’s
going on; what’s happening?,’’ and when Mack answered:
‘‘Well, you want to know about the union,’’ it is evident that
Schibla’s studiously ambiguous question, as reasonably inter-
preted by Mack, related to Schibla’s desire to know about ei-
ther or both Mack’s union sympathies or union activities in
the shop. There is no suggestion in the record that Mack was
an open or notorious union supporter nor even that Respond-
ent suspected that he was. For the immediate supervisor to
direct the employee into a room in which the door is shut;
where this has never happened in 10 years; and where the
supervisor directs the conversation to the unsuspecting em-
ployee about the union, this is coercive interrogation within
the meaning of Rossmore House, 269 NLRB 1176 (1984),
and Sunnyvale Medical Center, 277 NLRB 1217 (1985);
compare: Regency Manor Nursing Home, 275 NLRB 1261
(1985). I conclude that Schibla’s inquiry related to not only
Mack’s union activities and possible support, but to the ac-
tivities of other employees in the shop. That is the purport
of Schibla’s question. That Schibla did not use the word
‘‘union’’ is not dispositive. It is actually none of Schibla’s
lawful business as to Mack’s evaluation of union activities
in the shop when directing a subordinate employee to discuss
union activities during a union organizing campaign in a
closed room. This is precisely the type of information that
Mack was privileged to keep from Respondent. See Laredo
Coca Cola Bottling Co. v. NLRB, 613 F.2d 1338, 1342 fn.
7 (5th Cir. 1980), cert. denied 449 U.S. 889 (1980). Schibla
violated Section 8(a)(1) by this coercive interrogation.
Alleged Unlawful Threats
According to the uncontradicted and credited testimony,
Schibla also told Mack in that closed office: ‘‘You could
lose your benefits; union dues are expensive; you could lose
just about everything.’’ (Tr. 282.) Respondent’s sole defense
is that Schibla’s threat to Mack was phrased in the condi-
tional ‘‘could’’ rather than ‘‘would’’ which would be uncon-
ditional.
It is true that some Board cases, e.g., Monfort of Colo-
rado, 298 NLRB 73, 85 (1990), suggest that there is a neces-
sity for a ‘‘probability’’ that the employer would act dif-
ferently with respect to a benefit if the union was voted in
before the Board would find a violation based on this ‘‘pre-
diction about the effects of unionization.’’ Here, there is no
implication of ‘‘a probability’’ that the Respondent would act
differently in the face of unionization; there is only Schibla
telling Mack that he could lose his ‘‘benefits’’ and lose ‘‘just
about everything.’’ In the instant case, in the presence of a
one-on-one conversation behind closed doors at the summons
and instance of the supervisor, and in the absence of any
suggestion that the loss of benefits which ‘‘could’’ result was
to be derived from negotiations in the give-and-take of col-
lective bargaining, Regency Manor Nursing Home, supra, and
in view of the fact that such a closed door conversation
never occurred before in the 10 years of Mack’s employ-
ment, I find that the threat of loss of benefits if the Union
became the bargaining agent was unlawful within the mean-
ing of Section 8(a)(1) of the Act and that the use of the word
‘‘could’’ in the presence of Respondent’s unfair labor prac-
tices does not offer a defense as Respondent argues, United
Technologies, 313 NLRB 1303 (1994).
Respondent’s unintentionally misleading brief (Br. 18)
suggests that in this conversation, Schibla stated that: ‘‘No
one really knows what can happen in negotiations’’ and that
‘‘nobody knows for sure.’’ (Tr. 313–315.) Such statements
by Schibla did not occur in this conversation. They occurred
only in a conversation 2 weeks later. (Tr. 314–315.) That
conversation is not alleged to constitute a violation of the
Act. There is, of course, no basis for confusion since the
record is completely clear. The subject of a second conversa-
tion was raised solely as a result of Respondent’s own cross-
examination. That Mack felt no subjective coercion or threat
in either conversation is irrelevant. Crown Cork & Seal Co.,
308 NLRB 445, 450–451 (1992), and cases cited.
1155MEDICAL CENTER OF OCEAN COUNTY
3. Michael J. Skercheck, interrogation
As with the conversation, above, between Schibla and
Mack, at the same time in mid-May 1993, that Schibla was
unlawfully interrogating and threatening Mack, he directed
Skercheck to come to his office and Schibla, as in the case
of Mack, closed the door. Schibla told Skercheck that he
guessed that Skercheck heard about the Union trying to get
in and when Skercheck affirmed that he did, Schibla told
him: ‘‘If the union gets in here, you have a good chance of
losing your pension and other benefits.’’
To the extent that Schibla testified that he asked Skercheck
only if he had any questions about the Union, to which
Skercheck said that he had none (Tr. 617), I do not credit
Schibla.
I conclude, as I have with regard to Schibla’s interrogation
of Mack, that Respondent, through Schibla, was engaged in
systematic interrogation of and warnings to unit employees
concerning their interests and the impending Board-con-
ducted election and that such warnings or threats were un-
lawful. I also find, as I have, above, with regard, to em-
ployee Mack, that when Schibla told Mack that he had a
‘‘good chance of losing [his] pension and other benefits,’’
that was an unlawful threat within the meaning of Section
8(a)(1) and that the use of the phrase ‘‘a good chance,’’ like
‘‘could,’’ in the presence of contemporaneous unfair labor
practices is not a defense under the closed-door, one-on-one,
circumstances. Here, again, was no suggestion that in this
conversation Schibla raised the theory of the loss of benefits
through collective bargaining or in negotiations following
union certification. See United Technologies Corp., supra.
In view of the above findings, of unlawful interrogation
and threats of loss of benefits with regard to Schibla’s con-
versations with employees Billy Mack and Michael
Skercheck, I need not reach and determine further allegations
(complaint par. 5(c) and (d)) again concerning Schibla’s con-
versations with employee Lindsay concerning a threatened
loss of pension benefits or Schibla’s alleged interrogation of
employee Maxson, both occurring allegedly on or about May
14, 1993. Resolution of such allegations would not change
my recommended Order to the Board.
4. Unlawful promise of benefit by Supervisor Vogel;
paragraph 6(b)
Employee Billy Mack credibly testified that on or about
June 7 or 8, Supervisor Vogel called him into his office and
told him to shut the door. He told Mack, ‘‘off the record,’’
that he did not want to have Mike Skercheck in charge of
the HVAC (heating ventilating and air conditioning). ‘‘I
would much rather have you in charge, and its a sure thing.
My hands are tied because of this thing about the union. I
can’t do anything.’’ Mack answered okay, ‘‘Bob.’’ (Tr. 284–
285.)
In cross-examination, Mack admitted (Tr. 328–329) that he
and Skercheck worked the same hours, get the same pay, and
that there was no additional benefit in Mack being placed in
charge of HVAC. Indeed, he had no idea of what the advan-
tage was in being placed in charge. (Tr. 329.)
In the absence of General Counsel’s suggesting exactly
what benefit would occur from Vogel’s declaration of his
preference for Mack as being ‘‘in charge’’ (based on the
presence of the union as the inhibiting factor) there is no
promise of benefit based on abandoning the union or even
lack of support of it.
It is a philosophical rather than a legal question as to
whether, with no actual benefit, the alleged ‘‘better position’’
of being ‘‘in charge’’ is a promise of a ‘‘benefit.’’ I there-
fore recommend that paragraph 6(b) be dismissed. The cases
cited by General Counsel, LRM Packaging, 308 NLRB 829
(1992); Gerkin Co., 279 NLRB 1012 (1986); and Continental
Bus System, 229 NLRB 1262, 1267–1269 (1977), are distin-
guishable. They involve promises of tangible benefits or re-
lief from punitive conditions.
5. The alleged violations of Section 8(a)(1) by
Supervisor Martin Giacobbe
Paragraph 7(a) alleges that on or about May 27, 1993, Su-
pervisor Giacobbe (1) asked an employee what could be
done to stop the Union; (2) solicited the employee to form
an association of employees to deal with Respondent; and (3)
solicited employees’ complaints and grievances, promising
employees improved benefits in terms and conditions of em-
ployment all in order to discourage them from selecting the
Union as their collective-bargaining representative.
On May 27, 1993, while employee Michael Maxson was
in his carpenter’s shop, Supervisor Giacobbe, who enjoyed a
close relationship with Maxson, telephoned him and asked
(Tr. 35, et. seq.): ‘‘Just between friends, what could the hos-
pital do to stop the union?’’ Maxson answered: ‘‘At this
point, I don’t think anything could be done . . . the mainte-
nance department has been dumped on far too long . . . they
look at us [as] lower than housekeepers.’’ Supervisor
Giacobbe responded: ‘‘Well, why don’t you drop the union
and start your own association?’’ Maxson answered he knew
nothing about ‘‘associations’’ and said he was satisfied with
what the Union was doing for the employees at that point.
(Tr. 36.) When Giacobee cautioned that the Union was only
for power plant workers and not for maintenance workers,
that they weren’t going to do anything for the unit employ-
ees, Maxson answered: ‘‘Well, that remains to be seen.’’ At
this point, Giacobbe suggested that the unit employees could
come to him to relay their problems to management.
Giacobbe would show Respondent what the employees’
problems were and the employees would not have to worry
about going face-to-face with management and suffer any in-
timidation. (Tr. 36.) Giacobbe then said that if the Union got
in, he hoped that he and Maxson could still have a ‘‘working
relationship.’’ Maxson answered that he did not see any rea-
son why they couldn’t; that it would only be a ‘‘professional
basis.’’ (Tr. 36.) Giacobbe told Maxson that Respondent felt
that the only reason that the employees wanted the Union
was more money. Maxson told him that it had nothing to do
with money; that the Union had not offered, and could not
offer, more money; and that the employees wanted ‘‘a con-
tract, just like [president] Gribbin has.’’ (Tr. 37.)
Lastly, Giacobbe asked Maxson whether ‘‘things could
change’’ if ‘‘we got rid of Vogel and Vic [Schibla].’’ (Tr.
38.) Maxson answered that: ‘‘Vogel wasn’t the problem.
Victor is our problem.’’ Maxson called Schibla ‘‘an unskilled
imbecile . . . [who] has no respect for us and the guys have
absolutely no respect for him.’’ (Tr. 38.)
Maxson mentioned to Giacobbe that he regarded what was
going on at the hospital as a ‘‘joke’’: that before the Union
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Supervisor Giacobbe started his conversation, above, with his
friend, Michael Maxson: ‘‘Just between friends.’’
came around, no one knew his name but that now everyone
is tripping over their feet to say, ‘‘Hi.’’ (Tr. 39.)
Giacobbe did not testify.
To the extent Respondent defends on the ground that
Maxson regarded Giacobbe’s telephone statements as a
‘‘joke’’ (Tr. 42), the reference to ‘‘a joke’’ related to
Maxson telling coemployees that it was ‘‘a joke’’ that Super-
visor Vogel (not Supervisor Giacobbe in the above conversa-
tion) was asking Maxson and other employees to give the
hospital 6 months to try to straighten out the problems and
then to start up the Union again if the Respondent failed to
solve their problems. (Tr. 42.) Maxson described the ‘‘joke’’
as Vogel’s attempt to dissuade employees from supporting
the Union; not what Vogel said. To this extent, Respondent’s
brief (Br. 30) mistakenly suggests that the word ‘‘joke’’ re-
lated to the Giacobbe conversation.
Maxson also told other employees that Giacobbe was mak-
ing offers, doing what he was told (by Respondent) and that
the employees ‘‘are not going to take it serious.’’ (Tr. 43.)
That reference relates to the employees’ evaluation of
Giacobbe’s ability and power to change things rather than to
the seriousness with which Giacobbe made the offers of act-
ing as a ‘‘go between’’ and inquiring what Respondent could
do to ‘‘stop the union.’’
Respondent’s reliance on Globe Shopping City, 203 NLRB
177, 180–181 (1973) is misplaced. In that case, a supervisor,
engaging an employee in mock physical combat, feigned an
armlock on the employee and told him that he was ‘‘not tell-
ing [him] how to vote.’’ The Board found that the super-
visor’s statement was made in the course of ‘‘horseplay’’ and
the supervisor was ‘‘kidding around.’’ There is no evidence
that Supervisor Giacobbe’s telephone conversation with
Maxson was ‘‘horseplay’’ or that Giacobbe was ‘‘kidding
around’’ with Maxson. The most that can be said is that
Maxson regarded Giacobbe as engaging in conduct at the be-
hest of his superiors and was, himself, powerless to affect
change. I conclude, therefore, that, as alleged, Supervisor
Giacobbe’s May 27 telephone conversation with Maxson vio-
lated Section 8(a)(1) of the Act in that he coercively inquired
what could be done to stop the Union, solicited Maxson to
form an association of employees to deal with Respondent
rather than support the Union as the collective-bargaining
representative, and also solicited the employees in using him
as a go-between for their complaints and grievances and not
have to face the intimidation of presenting these grievances
to Respondent, all in order to improve their terms and condi-
tions of employment. All such conduct violates Section
8(a)(1) of the Act as alleged.
6. Supervisor Giacobbe at the Point Pleasant facility on
or about June 14, 1993
Paragraph 7(b) alleges that on or about June 14, 1993, at
the Point Pleasant facility, Supervisor Giacobbe created the
impression that employees’ union activities were under sur-
veillance; accused an employee of disloyalty; and unlawfully
interrogated an employee because of his union sympathies.
Employee John S. Sacko, a locksmith, testified that in the
morning of June 14, 1993, Supervisor Giacobbe, at the
Eldermed job, said he wanted to inform Sacko ‘‘off the
record’’6 that Vice President Dave Kaplan ‘‘feels that [you
are] an advocate of the union. So I wouldn’t be put in a cer-
tain category, and that I should make amends with Dave.’’
Sacko responded: ‘‘I don’t know what more Kaplan could
want. I’ve been giving 100 percent since day 1.’’ (Tr. 224.)
Sacko recalls that Giacobbe said that Kaplan ‘‘went out of
his way to get [you your] job.’’ (Tr. 225.)
Giacobbe then asked Sacko: ‘‘Oh, by the way, are you for
the union?’’ (Tr. 225.) At that point, another employee called
out to Giacobbe who turned away to answer the employee
and Sacko walked away. (Tr. 225.)
Sacko had not been an open or active member or supporter
of the Union. (Tr. 225–226, 236.) Giacobbe, as above noted,
failed to testify.
Discussion and Conclusions
(1) To the extent that the complaint alleges that Supervisor
Giacobbe’s remarks to employee Sacko created the impres-
sion that Sacko’s union activities were under surveillance,
that allegation is supported only by Sacko’s testimony that
Giacobbe told him that Kaplan suspected him of being a
union advocate. There was no suggestion that any of Sacko’s
union activities were the subject of that remark; merely
Kaplan’s suspicion concerning Sacko’s union sympathies.
Suspicion of status does not create an impression of unlawful
surveillance. To that extent, therefore, I recommend that the
allegation be dismissed as unsupported.
(2) The allegation includes an accusation of disloyalty:
Giacobbe telling Sacko that Kaplan had ‘‘gone out of his
way’’ to get Sacko a job and that therefore Sacko had to
make amends to Kaplan. I conclude that the expression
‘‘gone out of his way’’ suggests that Kaplan’s suspicion of
Sacko’s union support demonstrates, as alleged, an act of
Sacko’s disloyalty because the recommended conduct of
Sacko making ‘‘amends’’ with Kaplan amounts to avowing
‘‘loyalty’’ to Kaplan based on Sacko’s foreswearing the
union. Imposing such an implicit condition in Giacobbe’s
recommended remedy violates Section 8(a)(1) of the Act. I
find, in addition, not only is this assertion of disloyalty
(based on union membership) to have been proved but I find
a further act of unlawful assertion of ‘‘disloyalty’’ based on
Sacko’s support of the Union. Giacobbe told him that he
should make ‘‘amends with Dave . . . so I wouldn’t be put
in a certain category.’’ (Tr. 224.) In order to make
‘‘amends’’ he would have to therefor eliminate the source of
being in that ‘‘certain category,’’ i.e., withdraw his support
from the Union.
The statement that Sacko, by making amends to Vice
President Dave Kaplan, would ensure that he would not be
put in a disfavored ‘‘category’’ of union supporters, comes
within the rule of Ichikoh Mfg., 312 NLRB 1022 (1993); In
Ichikoh Mfg., supra, a supervisor approached employees
wearing union buttons and told them that if it was up to him,
he would take off the buttons because it looked like the em-
ployees were trying to organize for the union. The supervisor
did not instruct or order the employees to remove the but-
tons. His remarks to the employees showed that a decision,
forcing the employees to remove the buttons, was not ‘‘up
to him’’ and they could therefore continue to wear the but-
1157MEDICAL CENTER OF OCEAN COUNTY
tons. In that case, the Board, observing that an employer vio-
lates Section 8(a)(1) by prohibiting employees from wearing
union buttons, found that the supervisor’s remarks neverthe-
less conveyed the impression that the employer wanted em-
ployees to cease wearing the union buttons. Such an impres-
sion violates Section 8(a)(1) of the Act notwithstanding that
the supervisor’s statement did not amount to an order that the
employees remove the union buttons. The supervisor’s re-
marks were unlawfully coercive because:
they conveyed the clear message that it was not a good
idea to be perceived as being prounion and that union
button-wearers would therefore be revealing themselves
as members of a disfavored group. See Certain-Teed
Insulation Co., 251 NLRB 1561, 1564 (1980). [Ichikoh
Mfg., supra at 1024.]
In the instant case, Giacobbe told Sacko that by being sus-
pected of being a ‘‘union advocate,’’ Kaplan was identifying
him ‘‘as a member of a disfavored group’’ (Ichikoh Mfg.) or,
as in the instant case, placing Sacko ‘‘in a certain category.’’
I find that the coercive effect of being placed in a
‘‘disfavored group’’ by wearing union buttons, Ichikoh Mfg.,
supra, governs the instant facts where Giacobbe told Sacko
that, as a suspected union advocate’’ he would be placed ‘‘in
a certain category.’’ (Tr. 224.) I find that Giacobbe’s imposi-
tion of an obligation to make amends in order to avoid being
placed in the disfavored group is a requirement that Sacko
abandon his disloyal union advocacy and show loyalty to
Vice President Kaplan. As in Ichikoh Mfg., the Sacko’s sup-
port of the union as placed him in the disfavored group.
Giacobbe’s statement is coercive and violates Section 8(a)(1)
of the Act as alleged.
It follows, in addition, that, after such coercive assertions
of Sacko’s disloyalty (and the method by which Sacko could
make amends) that Giacobbe’s subsequent question, whatever
its innocence in other contexts, ‘‘Are you for the union?’’
(Tr. 225), constitutes coercive interrogation within the mean-
ing of Section 8(a)(1) of the Act as alleged.
7. The alleged violation of Section 8(a)(1) by Vice
President David Kaplan
Kaplan did not testify in this proceeding.
Complaint paragraph 8(a) alleges that on or about May 25,
1993, Kaplan unlawfully interrogated an employee (Thomas
Brown) concerning the employees’ union membership. In
view of my findings of other unlawful interrogation by Re-
spondent’s supervisors and in view of the fact that it would
not change the remedy in this case, it is unnecessary to ana-
lyze and decide the alleged coercive interrogation raised by
the testimony of employee Thomas Brown.
Under paragraph 8(b) of the complaint, the General Coun-
sel further alleges that on or about May 27, 1993, Vice Presi-
dent Kaplan solicited employee complaints and grievances,
and promised them improved benefits in terms and condi-
tions of employment in order to discourage them from select-
ing the Union as their collective-bargaining representative.
William Gaunt who, as above noted, at Respondent’s May
14 pizza party meeting, angrily confronted pro-Respondent
employee Dan Blunk (Tr. 53; ‘‘asshole’’); (Blunk as
proemployer, Tr. 411), testified that he had been a lead engi-
neer in Respondent’s powerhouse for 3 years before being
appointed chief engineer after the union election.
On May 27, 1993, his powerhouse supervisor (Bob
Wissel) told him that Vice President Kaplan wanted to see
him that afternoon. In Kaplan’s office, Kaplan told him that
he wanted to know of the power plant employee grievances.
Kaplan said his request had nothing to do with management
and the Union; it was a matter only between Gaunt and him-
self. Gaunt then gave Kaplan a list of grievances including
the need for more overtime, greater evening-shift pay dif-
ferentials; premium pay for weekends; drug plans for part-
time employees, etc. Kaplan transcribed the grievances (Tr.
376) and told Gaunt that Respondent ‘‘had made mistakes,
and he wanted to rectify it or straighten them out.’’ (Tr.
376.)
As alleged, Kaplan’s statements to Gaunt in this May 27,
1993 conversation constitutes, prima facie, an unlawful solic-
itation of grievances coupled with an express promise to rec-
tify them and thus improve benefits and conditions of em-
ployment. I conclude that Kaplan, contrary to Kaplan’s state-
ment, solicited Gaunt for the purpose of discovering unit em-
ployee grievances, rectifying them and thereby discouraging
employees from thereafter selecting the union as their collec-
tive-bargaining representative.
Respondent defends on the assertion, that, prior to its re-
ceipt of the Board’s Decision and Direction of Election (May
27, 1993), Kaplan had the above conversation with Gaunt (R.
Br. 33). This conversation, therefore, occurred immediately
before the receipt of the Board’s May 27 determination of
Gaunt’s nonsupervisory status. Respondent asserts that prior
to receipt of that document, and particularly at the time of
the meeting between Kaplan and Gaunt, the supervisory sta-
tus of Gaunt remained uncertain. Respondent asserted prior
to the Board’s determination, that Gaunt was a supervisor
and Respondent treated him as a supervisor (R. Br. 33).
During the course of the hearing, I solicited from Re-
spondent the citation of authority to support its defense that
Respondent’s good-faith, though mistaken, belief in Gaunt’s
statutory supervisory status provides a defense to Kaplan’s
remarks in the conversation of May 27 between Kaplan and
Gaunt. Thereafter, by letter dated April 14, 1994 (not other-
wise included in the record) Respondent submitted as its au-
thority Pillows of California, 207 NLRB 369 (1973).
It has long been established that the burden of proof is on
the parties seeking to exclude from the bargaining unit, on
the basis of supervisory status, an employee otherwise in-
cludible. Quadrex Environmental Co., 309 NLRB 101, 102
(1992); Bennett Industries, 313 NLRB 1363 (1994).
In Pillows of California, supra at 372, the Board held that,
in view of a supervisor’s prefatory remarks and good-faith
belief that an employee was a supervisor, no coercive inter-
rogation in violation of Section 8(a)(1) of the Act had oc-
curred. In that case, however, the supervisor-interrogator
went through a series of explanations of supervisory status
and ‘‘prefatory remarks’’ concerning the duty of loyalty to
the employer which a supervisor owes and which requires
that a supervisor desist from union activity. United Expo-
sition Service Co. v. NLRB, 945 F.2d 1057 (8th Cir. 1991).
In the instant case, contrary to Respondent’s argument (R.
Br. 33) there is no suggestion in the record that Respondent
ever accorded the accolade of supervisory status on Gaunt or
treated him as a supervisor prior to the union’s organizational
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
effort commencing on April 12, 1993, or at any other time
prior to the June 24 election. Nothing in the conversation be-
tween Gaunt and Kaplan suggests that Kaplan stated (or im-
plied) that Gaunt was a supervisor; nothing in the records
supports the conclusion that Kaplan or any other supervisor
suggested that Gaunt was a supervisor; nothing in Respond-
ent’s brief alleges that there are facts in the record which
suggest he was a supervisor or treated like a supervisor (see:
Decision and Direction of Election, May 27, 1993; G.C. Exh.
1(d)). Rather, the record, in this regard, shows that Gaunt,
along with all other unit employees, attended the skilled
maintenance, powerhouse, biomedical employees May 14
unit pizza party meeting convened by Supervisors Vogel and
Schibla. Gaunt, for instance, in the audience with his co-
employees, was not called to stand with Supervisors Vogel
and Schibla nor was he identified as the power house super-
visor or asked to address the employees on behalf of Re-
spondent. In short, he was treated just as any other unit em-
ployee was treated. Nor was he remonstrated with by Re-
spondent, as a ‘‘supervisor,’’ for calling proemployer em-
ployee Dan Blunk an ‘‘asshole’’ in front of all the other unit
employees when Blunk told the employees that the accession
of the Union would mean that Respondent might subcontract
all their jobs. In short, there is no evidentiary basis in this
record for Respondent relying on a good-faith belief that
Gaunt was a supervisor.
In Permanent Label Corp., 248 NLRB 118 fn. 2 (1980),
the Board distinguished Pillows of California, supra, on the
ground that in that case, the administrative law judge found
that the employer had a good-faith belief in the employee’s
supervisory status. In Permanent Label Corp., supra, the Re-
spondent had contrived a ‘‘flimsy basis’’ for such a belief.
In the instant case, as above noted, there is simply no evi-
dence to support a Respondent ‘‘good-faith’’ belief that, at
any material time prior to the Kaplan-Gaunt conversation,
Gaunt was a statutory supervisor, was treated as a supervisor,
or was held out to be a supervisor (G.C. Exh. 1(d)). Rather,
the meager evidence of record carries the implication, by
Guant’s attendance at the pizza party meeting along with all
other unit employees, that he was a mere unit employee and
so regarded by Respondent.
In the absence therefore, of any evidence suggesting Re-
spondent’s good-faith belief in Gaunt’s supervisory status
prior to this May 27 meeting between Kaplan and Gaunt, I
conclude, in accordance with Permanent Label Corp., supra,
that Respondent had no good-faith belief of Gaunt super-
visory status and that its defense herein is merely a ‘‘flimsy’’
attempt to escape its statutory obligation not to coercively
deal with unit employees.
In any event, the Board’s more recent view has apparently
abandoned the ‘‘good-faith belief’’ defense and presently is
that an employer acts at its peril when it seeks to chill the
exercise of Section 7 rights by individuals who may later be
found to be under the protection of the Act. Shelby Memorial
Hospital, 305 NLRB 910 fn. 2 (1991). That Kaplan told this
openly prounion employee that Respondent had made mis-
takes which it was attempting to rectify, it seems to me, was
a device to blunt Gaunt’s enthusiasm for the Union and to
have Kaplan’s message spread among Respondent’s unit em-
ployees.
I conclude that Kaplan, in violation of Section 8(a)(1), un-
lawfully solicited employee grievances from an employee
and promised an employee to rectify them in order to dis-
courage employees from selecting the Union as their collec-
tive-bargaining representative.
8. Alleged violations of Section 8(a)(l) by Respondent’s
vice president, Charles Jarvis
In his speech of June 17, 1993, to all unit employees, Re-
spondent’s vice president, Charles Jarvis, allegedly promised
to ‘‘work out’’ all of the employees’ problems if they did
not select the Union as their collective-bargaining representa-
tive. According to the General Counsel (par. 9, consolidated
compliant), this constitutes a violation of Section 8(a)(1) of
the Act in that it promises benefits conditioned on the em-
ployees’ abandoning their union support.
Employee Dominick Bonafide testified that, along with 10
or 12 other unit employees, he attended, by direction of a
Respondent memorandum, a June 17, 1993 meeting along
with President Gribbin, Assistant Vice President Keane, and
Vice President Jarvis.
Bonafide testified that President Gribbin, just 1 week be-
fore the election, told the employees that the former mainte-
nance supervisor, John Hopler (succeeded by Robert Vogel),
had failed to communicate that there were problems in the
maintenance department. At the point, employee Bill Bradley
said that Gribbin should have known that there were prob-
lems because Bradley wrote letters on the problems and that
nothing was ever done; but now that the Union came in, the
Respondent called a meeting in the Board room and wanted
to hear all about their problems. (Tr. 336.) Vice President
Charles Jarvis answered Bradley by saying (Tr. 337): ‘‘All
I can tell you is if you vote no on the 25th [of June] then
we can work all these problems out.’’
On cross-examination, Bonafide testified that he could not
recall President Gribbin saying that he could not make any
promises to the employees. (Tr. 342.) But he did recall that
at the beginning of the meeting, Gribbin said that Respond-
ent could not ‘‘do anything now’’ (Tr. 343) and that Re-
spondent’s ‘‘hands are tied.’’ (Tr. 343.) Bonafide recalled
that Jarvis’ statement was made toward the end of the meet-
ing. After Jarvis made the above comment, Bonafide testified
that Gribbon did not say that the employees should not
‘‘walk away and consider Mr. Jarvis’ statement as a prom-
ise.’’ (Tr. 344–345.)
Charles Jarvis testified that at the end of this June 17
meeting, at which Respondent solicited employee grievances,
he said: ‘‘When this is all over, we can address your issues.’’
He testified that Gribbin then immediately said: ‘‘This
should not be construed as a promise, but we can and will
not make any promises to the employees.’’ (Tr. 557.)
Gribbin testified in support and corroborated Jarvis’ testi-
mony. (Tr. 583.)
Discussion and Conclusions
I have already found, above, with regard to the May 14,
1993 postpizza party conversations between Supervisor
Vogel and employees Maxson and Cilento, that Vogel prom-
ised improved benefits in violation of Section 8(a)(1) of the
Act. I have also found that on or about May 27, Supervisor
Giacobbe made unlawful promises of improved benefits upon
the solicitation of complaints and grievances from employee
Maxson. I have further found that there was an unlawful
1159MEDICAL CENTER OF OCEAN COUNTY
7 In addition there is the underlying problem whether, in view of
certain prior meetings with employees, Respondent at the June 17
meeting was merely continuing a lawful past practice of soliciting
employee grievances during an organizational campaign, Lasco In-
dustries, 217 NLRB 527 (1975), or, in this meeting limited to unit
employees, was unlawfully significantly altering its past practice,
Carbonneau Industries, 228 NLRB 597, 598 (1977). If Respondent,
here was significantly altering its past grievance solicitation practice,
the June 17 solicitation would be unlawful and Gribbin’s asserted re-
pudiation of Jarvis’ ‘‘promise of benefits’’ would be rendered irrele-
vant. Cf. House of Raeford Farms, 308 NLRB 568, 569 (1992).
8 The 10 categories are (1) quality of work; (2) quantity of work;
(3) ability to learn; (4) teamwork; (5) compliance with instructions
and regulations; (6) dependability; (7) attendance; (8) initiative; (9)
appearance; and (10) adaptability.
promise of improved benefits by Vice President Kaplan in
his May 27 conversation with employee William Gaunt, all
in violation of Section 8(a)(1) of the Act. I therefore find it
unnecessary to resolve the question of whether Jarvis’ June
17 statement to the assembled unit employees wherein, as
employee Bonafide testified, he told the employees that if
they voted against the Union then the Respondent could
‘‘work all these problems out’’ (Tr. 337), constitutes an un-
lawful promise of benefits.
Bonafide’s testimony contradicts in large part the testi-
mony of Jarvis and Gribbin. There also remains the legal
question of whether, even if Gribbin’s testimony is accepted
(that he immediately told the employees that they should not
construe what Jarvis said as a ‘‘promise’’ of benefits), that
the retraction was sufficient as a matter of law, Passavant
Memorial Hospital, 237 NLRB 138 (1978); Agri-Inter-
national, 271 NLRB 925 (1984).7 There was the further
question whether Gribbin’s apparent retraction is sufficiently
enigmatic and ambiguous as to make it ineffective. Thus, as-
suming, arguendo, that Gribbin said that the assembled unit
employees should not construe Jarvis’ statement as a promise
of benefits, the question remains what should they construe
it as? He did not inform them what the employees’ construc-
tion should be. Ordinarily, it might be expected that if the
employer’s chief executive officer or his chief operations of-
ficer makes unlawful promises to employees during an
antiunion campaign speech, he may not then, at the end, tell
them with impunity that they should not construe the prom-
ises as promises.
Violation of Section 8(a)(3)
The Discharge of John Cilento
Background
John Cilento was twice employed by Respondent, the first
time as a maintenance mechanic in the period 1987–1990
when he did plumbing. He was never disciplined during that
period and resigned in order to enter into his own business.
During the period 1990–1992, he received a plumbing li-
cense in the State of New Jersey. He was rehired by Re-
spondent as a maintenance mechanic on or about December
30, 1992, and was discharged on June 9, 1993.
On being rehired in the maintenance department, Decem-
ber 30, 1992, as a probationary employee, the departmental
supervisor, Hopler, told him there was something in his per-
sonnel file which recommended against his being rehired.
Hopler nevertheless told him that it was ‘‘no big deal’’ and
that he should not worry about it. Among other supervisors
who interviewed him besides Hopler were Maintenance De-
partment Supervisor Robert Vogel and Vice President Dave
Kaplan. In interview discussions, Hopler and Kaplan told
him that they wanted a licensed plumber and were particu-
larly desirous of using a licensed plumber on their outside
jobsites. Kaplan and Hopler told Cilento that they wanted a
professional atmosphere, with licensed people in the mainte-
nance department. Cilento reported to Hopler (director of the
engineering department) and Supervisor Vogel (not a li-
censed plumber). After Hopler left, in or about mid-April,
1993, Victor Schibla became a supervisor in the maintenance
department assisting Vogel. Neither Vogel nor Schibla hold
any trade licenses or certificates. On one occasion, Vice
President Kaplan told Cilento that there was a great deal of
anticipated work to be done outside the hospital facilities and
Respondent needed a licensed plumber. Indeed, Kaplan
called Cilento Respondent’s ‘‘plumber of the future.’’ (Tr.
94.)
Respondent evaluates its probationary employees twice in
the 6-month probationary period: first at the end of 3
months’ of employment; second at the end of the 6-month
probationary period. Respondent’s first evaluation of Cilento
(G.C. Exh. 2), for the period December 30, 1992, to March
30, 1993, signed by Supervisor Vogel (and Cilento) on
March 31, 1993, is entitled ‘‘New Employee Progress Re-
port.’’ It provides for evaluation in 10 categories of work
and conduct measured in 4 grading levels running from
‘‘above average’’ (the highest level) to ‘‘average,’’ then to
below average’’ and finally to ‘‘unacceptable’’ as the fourth
category. In all 10 categories8 Vogel rated Cilento in the
highest grade: ‘‘above average.’’ Under the heading ‘‘rec-
ommendation,’’ which provides three categories (a. termi-
nation; b. needs improvement; and c. employment should be
continued), Vogel wrote that Cilento should be continued in
employment. When Cilento and Vogel discussed this evalua-
tion, Vogel told him that he was doing an excellent job and
that Respondent was very happy with him. (Tr. 87.)
Cilento regularly received work orders (work ‘‘req-
uisitions’’) from Supervisors Vogel, Schibla, and Martin
Giacobbe. In addition to specific work orders for repair and
other functions, Respondent maintained a separate preventive
maintenance program, scheduled in books maintained by Re-
spondent.
During the 6 months of Cilento’s second employment,
until his termination June 9, 1993, he worked predominantly
at Respondent’s Point Pleasant facility and at other ‘‘sat-
ellite’’ locations including Respondent’s facility for senior
citizens located about 5 miles from the Point Pleasant Hos-
pital known as the ‘‘Eldermed’’ facility. That facility, origi-
nally a part of a group of shopping center retail stores in-
cluding a restaurant, was being renovated to accommodate
Respondent’s new facility. Cilento, among other activities,
also built a complete plumbing shop in Respondent’s Point
Pleasant Hospital facility. Over a period of months com-
mencing with his second employment, he expanded a closet-
like plumbing storage area into a full-fledged plumbing sup-
ply facility by knocking down walls (with the help of car-
penter Maxson) and installing shelving, racks, benches, and
vises. The new facility was well stocked and designed to
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
take care of any plumbing emergency. During and after its
construction, Vice President Kaplan and Supervisor Schibla
often told him that he had performed an excellent job; that
Respondent was very happy with it; and inquired whether he
needed any other materials. They told him that he should not
hesitate to so inform them.
A. The Prima Facie Case of Unlawful Discharge
The Union filed its petition for certification in Case 4–
RC–18096 on April 12, 1993. The Union’s unfair labor prac-
tice charge alleging violation of Section 8(a)(1) of the Act
(soliciting employee grievances and promising increased
overtime opportunities), filed on May 10, 1993, was served
on Respondent by certified mail on May 12, 1993. The re-
turn receipt showing actual service, signed by Respondent’s
president, John Gribbin, bears no date. In addition, the record
is obscure as to precisely when the mid-May ‘‘pizza’’ meet-
ing was held, under the direction of Supervisors Vogel and
Schibla, directed only at the unit employees subject to the
Union’s petition. Although there is no dispute that it oc-
curred sometime in mid-May 1993, the General Counsel sug-
gested, and Respondent did not contest, that it happened on
or about May 14, 1993. (Tr. 109.) It was during that meet-
ing, as I have found, above, that Cilento’s rebuttal to em-
ployee Blunk’s argument (against supporting the Union),
clearly identified Cilento as a union supporter and a former
union member. It was in this conversation, as above noted,
nowhere denied by Vogel or Schibla, that Vogel inquired
into Cilento’s prior union affiliation and experience. Thus, on
the uncontradicted and credited evidence, I find that Re-
spondent had predischarge knowledge of Cilento’s prounion
stance and his position as a union supporter among unit em-
ployees. Furthermore, his post pizza party conversation with
Schibla and Vogel, in the presence of coemployee Maxson,
wherein Vogel, inter alia, asked them to convince the other
unit employees to forego support of the Union and give Re-
spondent another chance to hear employees’ grievances and
work out problems, also demonstrates that Vogel knew of
Cilento’s position as a union supporter, indeed his having a
potential power of persuasion over the union activities of his
fellow unit employees. Lastly, when Vogel then heard
Maxson and Cilento ask him why they should give up sup-
port for the Union, Vogel had further knowledge of Cilento’s
prounion position by May 14.
With regard to the element of union animus, I have found,
above, that Respondent, through its supervisors, including its
Vice President Kaplan and its maintenance department Su-
pervisor Vogel, engaged in numerous unfair labor practices
in violation of Section 8(a)(1) of the Act. Those conclusions,
alone, demonstrate union animus and must be taken into ac-
count in relation to Respondent’s June 9, 1993 discharge of
Cilento.
In determining union animus, I cannot avoid noting the
testimony of Respondent’s president, John Gribbin. Whatever
else his testimony showed, he demonstrated a personal ani-
mus against the employees attempting to organize in the
maintenance department. He particularly denied that he ever
took the employees’ attempt to organize the maintenance de-
partment ‘‘personally.’’ (Tr. 585.) Rather, he testified that in
his three June 1993 meetings with unit employees, he took
‘‘personally’’ only the Union’s misrepresentations concerning
his salary relations with Respondent. (Tr. 586.) As a result
of this testimony, General Counsel produced Gribbin’s letter,
dated June 2, 1993, distributed to unit employees (G.C. Exh.
8), urging employees to vote against the Union. With regard
to Gribbin’s personal feelings on the Union’s organizational
effort, President Gribbin stated in the letter: ‘‘Some people
have accused me of taking this Union petition personally.
Well, they’re right and I cannot help it.’’
In short, I find that President Gribbin gratuitously and
falsely attempted to deny a personal animus against the em-
ployee’s organizing effort. His subordinate supervisors could
be expected to refrain from manifesting contrary attitudes.
The June 9, 1993 Discharge
Cilento credibly testified that although the union organiz-
ing drive started in March 1993, he intentionally played no
part in it, fearful, as a probationary employee, of not surviv-
ing probation because of his being identified as a union sup-
porter. Nevertheless, although Respondent maintains an ‘‘em-
ployee handbook’’ (G.C. Exh. 6) providing, inter alia, a dis-
ciplinary system including the giving of oral and written
warnings (G.C. Exh. 6; par. 6.2), there is no dispute that
Cilento never received a written or oral warning for any de-
fect in work or conduct during his second term of employ-
ment with Respondent, commencing December 30, 1992, re-
gardless whether the handbook discipline applied to proba-
tioners.
As above noted, Cilento’s second and final probationary
evaluation, occurring at the end of 6 months of employment,
was due on June 30, 1993. Respondent, however, executed
the memorandum supporting the evaluation a month early, on
June 1, 1993 (G.C. Exh. 4).
There is also no dispute that Respondent’s payday is
Thursday of each week; and that the pay period covered by
such payday is for the prior 2-week period of Sunday
through Saturday. Thus, Respondent discharged Cilento on
Wednesday, June 9, not only without regard to its regular
payday but in midpay period. The necessary inference of the
abruptness of the discharge, absent any prior discipline, or
sudden malfeasance, and in the presence of his distinguished
initial evaluation, was never explained or refuted.
On Wednesday, June 9, 1993, at about 1:30 in the after-
noon, Vogel ‘‘beeped’’ Cilento to come to his office. As
Cilento entered the office, Vogel told him: ‘‘I guess you
know what this is about’’ and handed him an envelope. In
the envelope were two documents: Respondent’s final, 6-
month unsigned evaluation (G.C. Exh. 5) of Cilento as a pro-
bationary employee; and a memorandum, dated June 1, 1993
(G.C. Exh. 4), supplying the supporting data for the unfavor-
able evaluation together with a termination date of June 4
(sic).
According to Cilento, he responded to Vogel’s question
(‘‘I guess you know what this is about’’) by stating that he
did not know. Cilento says that Vogel then said: ‘‘With all
the bullshit that is going around here, I have to be the bad
guy.’’ It was at that point that Cilento opened the envelope
and withdrew and inspected the termination notice (G.C.
Exh. 5) and the supporting memorandum (G.C. Exh. 4).
Cilento testified that he asked Vogel why he was being ter-
minated and Vogel answered that it was because ‘‘we are not
using your plumbing license like we wanted to at the
Eldermed job.’’ (Tr. 131.) Cilento responded that he had
been willing to do the work at the Eldermed job; that it was
1161MEDICAL CENTER OF OCEAN COUNTY
9 In the period 1991 to June 24, 1993, Cilento was the only proba-
tionary employee discharged for poor job performance. (Tr. 490–
491.) The only other probationer who was discharged in this period
was discharged for drunkenness (Tr. 483–486) and he was dis-
charged only because he refused to enter Respondent’s alcohol reha-
bilitation program. (Tr. 486.)
10 With regard to ‘‘quality of work,’’ Respondent, at the hearing,
contradicted even this modest positive standard and declared that
Cilento was discharged for ‘‘incompetence.’’ (Tr. 288.) This con-
tradiction, in turn, contradicted Schibla’s estimation of the quality of
Cilento’s work in the final evaluation period which was ‘‘all right.’’
(Tr. 633.)
all set but that Respondent then hired an outside contractor.
At this point, Cilento asked Vogel who had written the
memorandum (G.C. Exh. 4) and Vogel said that he did not
know but thought it was the employee relations department.
Cilento then left but, on rereading the supporting memoran-
dum (G.C. Exh. 4), and the termination notice (G.C. Exh. 5),
noticed that there were no signatures on the documents and
returned to Vogel for signatures. At that time, according to
Cilento, Vogel said that: ‘‘I guess I will be the one going
to court.’’ Vogel then signed and dated both documents. He
dated both documents June 9 notwithstanding that the memo-
randum (G.C. Exh. 4), supporting a discharge no later than
June 4, is dated June 1, 1993.
Vogel testified that he told Cilento that he was terminated
and no longer needed; that it was ‘‘just a matter of all the
time talking to you . . . about the work requisitions . . . and
giving Vic [Schibla] a hard time.’’ (Tr. 756–757.) Vogel fur-
ther testified that when Cilento returned to have the unsigned
form signed, Cilento rather than himself, said: ‘‘I’ll see you
in court.’’ I specifically discredit Vogel’s testimony on this
point.
On the above credited testimony of Cilento, and Maxson,
and on all the circumstances of the case, I find that the Gen-
eral Counsel, by a preponderance of the credible evidence,
has proved that Respondent, prior to the June 9 discharge,
had knowledge of Cilento being a supporter of the Union;
that Respondent (including Supervisors Vogel, Schibla,
Giacobbe, and Kaplan) by virtue of commission of prior and
contemporaneous unfair labor practices, manifested union
animus against the Union, in general, and Cilento, in particu-
lar; that Respondent’s president (Gribbin) harbored a per-
sonal union animus against its employees’ organizing activi-
ties in the skilled maintenance unit; that Respondent dis-
charged Cilento in midpay period prior to payday, in the ab-
sence of any sudden precipitating event or oral or written
warnings concerning his work or conduct during his entire
second (or any other) term of employment, and in the pres-
ence of an entirely outstanding work evaluation in the first
3 months of his employment; that this abrupt discharge, be-
fore the election, following unfair labor practices and Re-
spondent’s identification of Cilento as an outstanding union
supporter with apparent persuasive powers over his co-
employees, all constitute evidence supporting a finding of a
prima facie case: that Respondent’s June 9, 1993 discharge
of Cilento violated Section 8(a)(1) and (3) of the Act, as al-
leged.9
B. Respondent’s Defenses
1. The documents comprising the Respondent’s
termination of Cilento; the supporting memorandum
(G.C. Exh. 4) and the termination document
(G.C. Exh. 5)
The termination notice (G.C. Exh. 5) carries on its face
Vogel’s signature and his newly inscribed date, June 9, 1993.
The rating period appearing on its face is from December 30,
1992, to June 30, 1993. Manifestly, a document dated June
9, 1993, cannot cover a rating period ending 3 weeks later
(June 30, 1993). Since Respondent’s evaluation (G.C. Exh.
2) of Cilento together with Vogel’s and Kaplan’s remarks,
for the period ending March 31, 1993, was entirely outstand-
ing, it is difficult to understand how, for the entire 6-month
period, in the June 1993 evaluation, none of his work or con-
duct was above average; that in only three categories was his
work average (quality of work,10 ability to learn and appear-
ance); that two of the categories were below average (team-
work and adaptability) and that four categories were ‘‘unac-
ceptable’’ (quantity of work, compliance with instructions or
regulations, dependability, and initiative).
Be that as it may, Vogel testified that he recommended the
termination of Cilento well before the June 9 date appearing
on the termination document (G.C. Exh. 5) and, indeed, even
before the June 1 date appearing on the supporting memoran-
dum which, on Vogel’s recommendations, was crafted by the
personnel department (G.C. Exh. 4).
As I understood Vogel’s testimony (Tr. 757–762), Vogel
had already determined to terminate Cilento before he en-
tered into a hospital for catheratization. (Tr. 759.) Before he
entered the hospital, he spoke with the personnel department,
particularly Assistant Vice President Keane, with his rec-
ommendation and the supporting grounds to discharge
Cilento. Since he spoke with Keane and gave her his rec-
ommendation for the discharge prior to his entry into the
hospital and prior to the time that the supporting memoran-
dum was typed up (June 1), it appears to me that he had rec-
ommended the Cilento discharge to Assistant Vice President
Keane prior to June 1 when either the maintenance depart-
ment clericals or the personnel department actually memori-
alized the reasons for the discharge (G.C. Exh. 4). In short,
I find that toward the end of May 1993, Vogel decided to
discharge Cilento because Vogel had already recommended
the termination to the personnel department prior to his entry
into the hospital and the memorialization of the reasons for
an anticipated June 4 discharge was not typed up until June
1 (G.C. Exh. 4, June 1, 1993). I conclude, therefore, that not-
withstanding that the discharge date was June 9, 1993, and
notwithstanding that the memorialization of the discharge,
signed by Vogel on June 9, was the same date as the termi-
nation notice itself, Vogel’s decision to terminate Cilento oc-
curred prior to June 1, 1993, and appeared to be sometime
during the last week of May 1993. That being the case, it
is provident to inquire into the reasons (advanced in late
May) for the discharge propounded in the supporting memo-
randum (G.C. Exh. 4), dated June 1, 1993.
The first reason advanced in the supporting memorandum
(G.C. Exh. 4), is that Cilento never showed up at an offsite
job assignment on April 23, 1993. There is no dispute that
this was the Eldermed facility on which Cilento and other
employees worked from time-to-time. Dozens, and perhaps a
hundred, pages of testimony were devoted to the question of
whether Cilento actually worked on the Eldermed job on
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Schibla (Tr. 642–643) and Vogel (Tr. 740–743) testified that
notwithstanding that Cilento allegedly never showed up at the
Eldermed job, they never asked him why he failed to show up. They
asked him only why he was so late in returning to the Point Pleasant
facility.
April 23, 1993. It should be noted, however, that it was not
only in the supporting memorandum that Respondent took
the position that on April 23 Cilento never showed up at the
Eldermed job; rather, extensive testimony of Vogel and
Schibla was replete with assertions demonstrating their
doubts that he ever showed up at the job. It is unnecessary,
nevertheless, to inquire into or analyze this issue. It is suffi-
cient to note that Vogel’s and Schibla’s vague testimony on
this point damaged their credibility and that, ultimately,
Vogel admitted, under oath, that this reason advanced in the
supporting memorandum—that Cilento never showed up at
that Eldermed job on April 23, 1993—was ‘‘incorrect.’’ (Tr.
773.)11 It is unnecessary in disposing of this defense, to de-
termine whether this ‘‘incorrect’’ reason was known to be
false prior to Vogel and Schibla giving their testimony under
oath. In any event, I credit Cilento’s testimony: that he
worked at the Eldermed job on April 23, 1993; and I dis-
credit Respondent’s admittedly ‘‘incorrect’’ defense.
The second of the four reasons in the supporting memo-
randum is that on April 26, 1993, Cilento was found sleeping
in his shop by Vice President Dave Kaplan. The only evi-
dence with regard to Cilento being asleep (Respondent failed
to regard this act as serious enough to engage its disciplinary
machinery if it applied to probationers or, if not, to manifest
some serious displeasure) is the testimony of Supervisor
Vogel. He testified that it was not only Vice President
Kaplan who caught Cilento asleep in his plumbing shop, but
that he himself also caught him sleeping. (Tr. 754.) Vogel
testified that he could not remember the month in which it
occurred (Tr. 755) but that he found Cilento asleep in his
chair in the plumbers’ shop with Cilento telling him that he
was not feeling well. Vogel said he remonstrated with
Cilento and told him that he should have spoken to Vogel
who perhaps would have let him go home. Although Vogel
testified that he regarded his discovery of Cilento sleeping
during working hours to be important to him, he could not
explain why he did not put it into the recommendation to
discharge Cilento that he forwarded it to Assistant Vice
President Keane (Tr. 774) or even issue some sort of dis-
cipline. In view of Cilento’s failure to deny Vogel’s testi-
mony, even in rebuttal, I credit Vogel that he did find
Cilento asleep; that Vogel believed that Cilento was not feel-
ing well; and that this event, whatever its date, was consid-
ered insignificant by Vogel. Since Vogel could not remember
the date, it may well have been in the first 3 months of
Cilento’s employment when Vogel rated him so highly.
With regard to Vice President Kaplan allegedly finding
Cilento asleep, the only credible testimony of record comes
from Cilento himself. Cilento testified that in late April
1993, he was in the plumbing shop during lunch hour with
feet up on the desk. Kaplan came in and, as Cilento with-
drew his feet from the desk, Kaplan said, ‘‘[N]o, stay there.’’
They spoke for 5 minutes about how nice the plumbing shop
was; whether Cilento needed anything further and Cilento’s
evaluation of a new employee. About 2 weeks to a month
later (i.e., sometime in May 1993), Vogel approached Cilento
and told him (Tr. 105–106) that he had ‘‘saved your ass.’’
When Cilento asked how that occurred, Vogel said that
Vice President Kaplan caught him sleeping. Cilento told
Vogel that he did not know what he was talking about and
Cilento immediately went to see Kaplan. Kaplan told him
that when Kaplan entered the office, Cilento was sleeping.
Cilento denied it and said that he was not sleeping and had
looked Kaplan right in the face as he had walked into the
office. Cilento said that he was on lunchbreak and Kaplan
answered that if he was on lunchbreak he should have been
in the cafeteria.
Not only did Cilento not receive any oral or written warn-
ing concerning the above sleeping incident with Vogel and
not only did he not receive one with regard to the same or
similar incident with regard to Vice President Kaplan, but
Kaplan never testified in this hearing. Under these cir-
cumstances, I do not credit Vogel that Kaplan had caught
him sleeping; and I do not credit his assertion that he had
‘‘saved your ass’’ because of that occurrence. Particularly in
view of Kaplan’s failure to testify to deny Cilento’s version,
I credit Cilento. I therefore find, consistent with Cilento’s
testimony, that Kaplan never found Cilento asleep; and that
Vogel’s testimony that he had ‘‘saved your ass’’ because of
this incident is not credible. I find, in any event, that even
if Kaplan found Cilento asleep, Kaplan’s failure to issue any
type of warning or discipline indicates that Kaplan regarded
the matter to be as insignificant as Vogel did when he, too,
found Cilento asleep.
Ultimately, Vogel’s testimony regarding what Kaplan
found is the purest hearsay. Kaplan’s failure to testify (on
this or any other question), under these circumstances, is dis-
positive of my crediting Cilento’s version.
The third basis on which Respondent discharged Cilento
is the assertion that on May 20, 1993, he was found ‘‘hang-
ing around the shop—not working on assignments.’’
Cilento kept a daily log of the work he performed. Cilento
credibly testified, and the log confirmed, that in the period
May 18 through May 21, he was busily engaged, sometimes
with a coemployee, in the installation of a certain sink at the
direction of Supervisor Schibla. Schibla, however, directed
Cilento to install the wrong sink in the wrong place. On May
20, Cilento testified that he was very busy that day and was
called off the installation of the wrong sink and told to do
other jobs.
Respondent went to considerable effort, attempting to un-
dermine Cilento’s veracity, to show that he tampered with
the log by interlineating matter into the log to show that he
was busy in the period commencing May 19, 1993. (Tr. 793,
et. seq.) In order to do so, Respondent requested, and Gen-
eral Counsel produced, the original of the log kept by
Cilento. Evidently the original log showed no tampering and
the matter was dropped. (Tr. 866.) Employee Sacko, who
worked with Cilento in the installation of the wrong sink,
testified that they both worked at a steady pace except for
interruptions caused by Cilento being contacted by beeper to
work on other assignments.
Ultimately, Cilento disconnected the wrong sink and con-
nected the correct sink into the proper place. In addition con-
trary to Respondent’s assertion, I credit Cilento who testified
that the work was completed on May 21 rather than being
incomplete as late as May 25, 1993 (G.C. Exh. 4).
1163MEDICAL CENTER OF OCEAN COUNTY
12 Among other relevant, but unanswered, questions are whether
similar notes and memoranda were compiled against any other pro-
bationary employee and whether Respondent was merely ‘‘building
a file’’ against Cilento after it discovered his support of the Union.
See Quebecor Group, 258 NLRB 961 (1981); Cherry Hill Convales-
cent Center, 309 NLRB 518 (1992).
13 As noted in a prior footnote, Respondent’s new defense, never
before mentioned, contradicts all its evaluations of Cilento (G.C.
Exhs. 2 and 5) and Supervisor Schibla. (Tr. 633.)
In short, Cilento’s credited testimony shows that he was
busy for the entire period May 18 through 21, 1993. This
testimony was corroborated by employee Sacko.
Respondent relies exclusively on the testimony of Super-
visors Schibla and Vogel to show that Cilento was hanging
around, socializing with coemployees, and did not perform
his work. No other witness was produced to support this tes-
timony. More important, however, Schibla repeatedly testi-
fied that he and Vogel kept notes and memoranda regarding
Cilento’s failure to perform his work. Indeed, Vogel and
Schibla kept an index of 3 by 5 cards demonstrating
Cilento’s poor performance. (Tr. 626–628.) It appeared, at
one point, that Schibla testified that he himself did not keep
notes but merely supplied the information to Vogel. (Tr.
626.) On another occasion, he said he wrote notes. (Tr. 634.)
On one occasion, with regard to Cilento’s alleged failure to
perform preventive maintenance, Schibla testified that he told
Vogel of the incident and Schibla himself memorialized it.
(Tr. 634.) In particular, Schibla said that on April 7 or 8,
Cilento refused to perform preventive maintenance; and that
Cilento was sitting around in his shop at the time he refused
to do the work. (Tr. 695.) On the other hand, Cilento’s log
shows that in the period April 6 through 9, he did in fact
perform preventive maintenance work.
In view of Cilento’s otherwise credible testimony, the cor-
roborative entries in his daily work log (R. Exh. 4), but par-
ticularly in view of Respondent’s failure to produce Vogel’s
and Schibla’s notes of Cilento’s failure to perform assigned
work, I do not credit Respondent. Rather, I draw an adverse
inference against Respondent’s testimony with regard to
Cilento’s failure to perform work because of Respondent’s
failure to produce Vogel’s and Schibla’s notes to support
their own testimony. Accordingly, I infer that if produced,
the notes would fail to support Respondent’s position where-
in Cilento was allegedly failing to perform his work. PRC
Recording Co., 280 NLRB 615, 626 (1986), enfd. sub. nom.
Richmond Recording Corp., 836 F.2d 289 (1987). Compare
Auto Workers v. NLRB, 459 F.2d 1329 (D.C. Cir. 1972),
with Hitchiner Mfg. Co., 243 NLRB 927 (1979). See Inter-
national Automated Machines, 285 NLRB 1122 (1987).12
As above noted, Respondent’s June 1, 1993 memorandum
supporting a discharge to take place no later than June 4 but
which ultimately occurred on June 9, lists ‘‘just a few inci-
dents’’ of Cilento’s misbehavior, all of which incidents
proved to be without merit (April 23, 1993, failure to show
up at the Eldermed job; found sleeping in his shop by Vice
President Kaplan on April 26, 1993; May 20, 1993 hanging
around the shop and not working; and May 25, 1993, failing
to fulfill assignment—installation of a sink). At the hearing,
however, Respondent, for the first time, added a further de-
fense on which it supports Cilento’s discharge: that in whole
or in part, Cilento was incompetent. (Tr. 288.) This incom-
petence necessarily must have occurred after Respondent’s
March 31, 1993 evaluation (G.C. Exh. 2). In that 90-day pe-
riod (December 30, 1992, to March 30, 1993), the first 90
days of Cilento’s probationary period, the quality and quan-
tity of his work, along with his ability to learn, dependabil-
ity, initiative, and adaptability were all above average. As
above noted, none of his work or conduct was merely aver-
age; all was ‘‘above average.’’ Thus, the incompetence must
have started sometime after March 31, 1993.13
Cilento testified, that it took him months to convert a clos-
et into an organized plumbing shop so that any plumbing
emergency could be met. In late April, Vice President
Kaplan complimented him on it, supra. Certainly his work
did not deteriorate in later April when he cleaned out a dis-
charge line in the kitchen which hampered the work of the
entire kitchen. (Tr. 102.) Vogel inspected this work and said
that Cilento had done a very good job. (Tr. 102.) Vogel did
not deny this Cilento testimony. As General Counsel further
notes, in late May 1993, Cilento discovered and laboriously
repaired a hot water leak in the coffee shop which earned
Schibla’s particular praise. (Tr. 101.) Schibla did not con-
trovert this testimony. There is no dispute that Cilento, a li-
censed plumber in the State of New Jersey, passed a written
examination in order to gain the license.
As in the case of Respondent’s above preexisting defenses,
(G.C. Exh. 4), I find this newly minted defense of Cilento’s
‘‘incompetence,’’ raised for the first time at the hearing, to
be also without merit. Not a single instance of poor work,
much less incompetance, was mentioned by Respondent’s
witnesses. Indeed, there is an inference to be drawn here of
a certain desperation in Respondent’s efforts to denigrate the
work, conduct, and cooperativeness of an otherwise fully
competent employee.
The further one inspects Respondent’s defenses, the more
unpersuasive they appear to be. Since the decision to termi-
nate Cilento was purely the determination of Supervisor
Vogel (Tr. 737–738), and since Vogel admitted that one or
more of the reasons appearing in the memorandum support-
ing the discharge (G.C. Exh. 4) was ‘‘incorrect’’ it would ap-
pear particularly relevant to determine whether, in view of
Cilento’s alleged ‘‘hanging around’’ and numerous alleged
failures to perform and complete his work, Vogel ever actu-
ally confronted him; in a case of apparently important mal-
function (a backed up toilet); whether he told Cilento that his
work order showing that the job was completed was false or
at least erroneous. Thus, when Vogel, on the witness stand,
was confronted with the naked question whether he ever told
Cilento: ‘‘You signed off on this [job] and you didn’t do it,’’
Vogel responded: ‘‘I can’t say definitely yes. I can’t say that
[Schibla] did it either. Nor did I instruct Schibla to confront
him.’’ (Tr. 745–746.) Not only did Vogel admit Schibla
never inspected Cilento’s work (contrary to Cilento’s testi-
mony regarding Schibla’s praising Cilento’s work), but
Vogel testified that he did not regard some of Cilento’s al-
leged failures to perform to be ‘‘serious.’’ (Tr. 746.) While
he did not regard Cilento to be a chronic liar, Vogel stated
that even one instance of a failure to perform, as Cilento al-
legedly said he had performed, would be one instance too
many. (Tr. 747.) Although Schibla testified that he himself
did not check Cilento’s work in preventive maintenance (Tr.
710), Vogel said that he did check it and most of the time
Cilento had completed preventive maintenance. He said he
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 I am at a loss to understand Respondent’s extensive defense liti-
gation surrounding Cilento’s alleged failure to help employee
McCann move a cabinet. To insist, as Vogel insisted (Tr. 775) that
Cilento’s misconduct in this June 2 episode was ‘‘the final straw’’
that led to the late May decision to discharge Cilento was baffling.
As might be expected, Vogel was asked to, but could not, explain
how Cilento’s alleged misconduct of June 2 (Schibla’s note of June
2, 1993; G.C. Exh. 9; Tr. 775) could be the ‘‘final straw’’ in
Vogel’s late May decision to discharge Cilento. Even Respondent’s
formal memorialization supporting the entire rationale of the dis-
charge (G.C. Exh. 4) is dated June 1 before the McCann incident
(June 2). At that late point in the hearing, a common case of
pretextual discharge was lurching into opera buffa.
spoke to Cilento many times about Cilento’s ‘‘work ethics’’
but could not recall the dates. (Tr. 747–748.) Such testimony
is not encouraging with regard to establishing Vogel’s and
Schibla’s veracity and crediblity.
I conclude on the basis of Cilento’s and other credited tes-
timony and Respondent’s ‘‘incorrect’’ and otherwise
unproven or nonexistent defenses, including the newly mint-
ed allegation of Cilento’s incompetence, not only that Gen-
eral Counsel’s prima facie case of Cilento’s discriminatory
and unlawful discharge was proved, but that Respondent
failed to produce preponderant credible evidence to rebut
General Counsel’s evidence or to prove that Respondent, in
any case, would have discharged Cilento regardless of his
union activities. Wright Line, 251 NRLB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); NLRB v. Transportation Management Corp., 462
U.S. 393, 400–401 (1983); NKC of America, 291 NLRB 683
fn. 4 (1988). In the face of General Counsel’s proof, Re-
spondent failed to bear its burden, to prove by a preponder-
ance of the credible evidence, that the General Counsel’s
facts were unsupported or, in the alternative, that Respondent
would have taken the same action against Cilento regardless
of his protected or union activities, Merillat Industries, 307
NLRB 1301 (1992). In view of Cilento’s exemplary work
record through March 31, 1993; his never having been given
a warning for work or conduct; (whether or not Respondent’s
disciplinary system applied to probationary employees); Re-
spondent’s ‘‘incorrect’’ defense with regard to Cilento’s fail-
ure to show up at the Eldermed job; its new and unproven
defense of Cilento’s incompetence; its failure to support its
defenses that Cilento failed to do preventive maintenance
work or install a sink; that he had been found asleep by Vice
President Kaplan; Respondent’s failure to produce its notes
recording Cilento’s failures; Cilento being the only proba-
tionary employee between 1991 and the June 24, 1993 elec-
tion ever discharged for poor work; all of these unproven
faults and shifting and unproven defenses demonstrate that
the discharge was pretextual.14 The preponderant credible
evidence thus necessarily establishes the unlawful motive in
Cilento’s discharge. Best Plumbing Supply, 310 NLRB 143
(1993).
CONCLUSIONS OF LAW
1. Respondent, Medical Center of Ocean County, is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and is a health care institu-
tion within the meaning of Section 2(14) of the Act.
2. International Union of Operating Engineers, Local 68-
A, AFL–CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent, in the period commencing May 14 through
June 14, 1993, by its supervisors, Schibla, Vogel, Giacobbe,
and Kaplan, in violation of Section 8(a)(1) of the Act, unlaw-
fully and coercively interrogated its maintenance employees,
unlawfully promised them improved benefits, threatened
them with loss of benefits, and solicited employees to con-
vince other employees to vote against union representation,
all with the object of unlawfully defeating the Union’s at-
tempt to organize Respondent’s skilled maintenance employ-
ees.
4. In or about the period May 27 and June 14, 1993, Re-
spondent, by its Supervisor Martin Giacobbe, unlawfully
asked an employee what could be done to stop the Union;
solicited the employee to form an association of employees
in order to prevent the Union from organizing Respondent’s
employees; solicited employee complaints and grievances
and promised skilled maintenance employees improved bene-
fits in order to discourage them from selecting the Union as
their collective-bargaining representative; and unlawfully
warned an employee to make amends and forego further sup-
port of, the Union because Vice President David Kaplan sus-
pected the employee of being a union supporter, all in viola-
tion of Section 8(a)(1) of the Act.
5. On June 9, 1993, in violation of Section 8(a)(3) and (1)
of the Act, Respondent unlawfully discharged its employee,
John Cilento, because he supported and engaged in the ac-
tivities in behalf of the Union and in order to discourage him
and other employees from such support and engaging in such
activities.
6. Respondent’s unfair labor practices burden and affect
commerce within the meaning of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act,
I recommend to the Board that it order Respondent to cease
and desist therefrom and to take certain affirmative action to
effectuate the policies of the Act. In addition to posting no-
tices which prohibit repetition of Respondent’s unlawful con-
duct, I shall recommend that Respondent make its employee,
John Cilento, whole for any loss of earnings and benefits he
may have sustained by virtue of Respondent’s unlawful dis-
charge of June 9, 1993, to be computed in the manner estab-
lished by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
The Union’s petition in this matter was filed on April 12,
1993. All of the above unfair labor practices occurred there-
after and before the Board-conducted election of June 24,
1993. As the General Counsel observes (G.C. Br. 2), certain
of the unfair labor practices found herein were not the sub-
ject of objections filed by the Union. These unfair labor
practices include the findings that Supervisor Robert Vogel,
on May 14, 1993, engaged in the unfair labor practice, inter
alia, of promising employees improved benefits and soliciting
employees to convince other skilled maintenance employees
to vote against the Union, all in violation of Section 8(a)(1)
of the Act. See paragraphs 6(a)(ii) and (b). In addition, pur-
suant to complaint paragraph 7(b)(i) General Counsel further
1165MEDICAL CENTER OF OCEAN COUNTY
observes that Supervisor Giacobbe’s telephone question to
employee Maxson (what could be done to stop the Union)
was not included as objectionable conduct by the Union. The
balance of the established Section 8(a)(1) violations con-
stituted objectionable conduct. I find, however, that all of the
objectionable conduct and all of the findings of violation of
Section 8(a)(1) of the Act (whether or not alleged as objec-
tionable conduct) occurred between the filing of the petition
(April 12, 1993) and the holding of the election (June 24,
1993). Findings of these disseminated violations of Section
8(a)(1) of the Act in this period, especially in this relatively
small unit (44 employees) in a close election, mandate that
the election be set aside, Ideal Electric & Mnfg. Co., 134
NLRB 1275 (1961). This objectionable conduct undermined
the laboratory conditions in which Board-conducted elections
are held. Conduct violative of Section 8(a)(1) is, a fortiori,
conduct which interferes with the exercise of a free and
untrammeled choice in elections Dal-Tex Optical Co., 137
NLRB 1782, 1786 (1962). In view of the fact that this was
a consolidated hearing, it is immaterial whether the mis-
conduct alleged as unfair labor practices was raised by the
Union in its objections. Thus, in a consolidated hearing, as
here, findings of unfair labor practices in the Ideal Electric
period not raised as objectionable conduct may form the
basis of setting aside the election. Monroe Tube Co., 220
NLRB 302, 305, (1975); White Plains Lincoln-Mercury, 288
NLRB 1133 (1988). I therefore recommend to the Board that
the election of June 24, 1993, in Case 4–RC–18096 be set
aside because of my findings of objectionable conduct occur-
ring as largely parallel, disseminated unfair labor practices
during the Ideal Electric period in violation of Section
8(a)(1) and (3) of the Act.
The Challenges
There is no dispute that there are three challenges to be
resolved in this litigation. At the June 24, 1993 election, the
NLRB agent conducting the hearing, inter alia, challenged
the ballots of Albert Behring, John Cilento, and Norman
Piercy because their names did not appear on the list of eligi-
ble voters. In addition, Respondent challenged the ballot of
Albert Behring on the further ground that he was a tem-
porary employee; and the ballot of John Cilento on the
ground that he was ineligible to vote because he was not em-
ployed on the date of the election. By virtue of the Regional
Director’s supplemental decision on objections and chal-
lenged ballots, dated November 2, 1993, as thereafter modi-
fied by the Regional Director’s January 28, 1994 order con-
solidating cases and scheduling consolidated hearing, a hear-
ing on the challenges to the ballots of John Cilento, Norman
Piercy, and Albert Behring was consolidated with the hearing
on objections and unfair labor practices in the instant con-
solidated matter.
With regard to John Cilento, I have found that Respond-
ent, in violation of Section 8(a)(3) and (1) of the Act, unlaw-
fully discharged him on June 9, 1993. Under established
Board doctrine, an unlawfully discharged employee remains
an employee for purposes of voting in the election. I there-
fore overrule the challenge to John Cilento’s vote and rec-
ommend to the Board that his vote be counted if, under my
subsequent ruling, the counting of Cilento’s vote is nec-
essary.
With regard to Albert Behring, the uncontradicted evidence
shows that Behring was hired in October 1992 on an indefi-
nite basis to replace employee Richard Hourigan, a stationary
engineer, a member of the bargaining unit. Hourigan, at the
time of the hiring of Behring, and thereafter through the date
of this hearing, remains on extended medical leave because
of a neurological impairment. There was no showing at the
hearing that Hourigan’s neurological impairment, at any ma-
terial time, subsequent to the hiring of Behring, entered into
a state of remission or that there was a prognosis showing
that remission was imminent or even in the picture. Respond-
ent was unable to establish that Hourigan, who had been ab-
sent from work for many months, had not exhausted his sick
leave accumulation or personal leave accumulation. The evi-
dence establishes that Respondent did not know whether
Hourigan would ever return to work in view of his disability.
Behring was hired on a full-time interim basis and neither
Respondent’s records nor other evidence shows a terminal
date for Behring’s employment. Respondent’s records further
show that at the time of his hiring in October 1992, Behring
said that he would ‘‘be willing to go permanent if a perma-
nent full-time position became open.’’ (R. Exh. 23.)
The Board rule is that a ‘‘temporary’’ employee is eligible
to vote unless there is a definite termination date established
for his tenure. U.S. Aluminum Corp., 305 NLRB 719 (1991).
In the instant case, not only was Behring’s tenure of employ-
ment not limited by a definite termination date, but there
was, in addition, no manifested condition upon which his
employment would terminate. In short, not only was there no
termination date established but Respondent did not assert
that even if Hourigan entered into a state of remission he
would be rehired or that Behring would be terminated. I con-
clude, therefore, that the challenge to Behring’s ballot based
upon his being a ‘‘temporary employee’’ be overruled and
that Behring’s vote be counted if the Board finds that his
ballot, like Cilento’s, would be relevant under the cir-
cumstances hereinafter noted in my ruling on the challenge
to Norman Piercy’s ballot.
The Challenged Ballot of Norman Piercy
As noted in the Regional Director’s decision and direction
of election issued May 27, 1993, the Union and Respondent
stipulated and agreed that a unit of skilled maintenance em-
ployees at Respondent’s two hospital facilities was the ap-
propriate unit. Accordingly, the Regional Director, with the
consent of the parties, found that the following unit con-
stituted a unit appropriate for the purpose of collective bar-
gaining within them meaning of Section 9(b) of the Act:
All full-time and regular part-time skilled maintenance
employees including . . . maintenance helper-drivers
. . . excluding all other employees.
Norman Piercy was initially employed as a security guard,
had no maintenance experience, and commenced his employ-
ment as a driver effective July 1987. There are no mainte-
nance skills listed on his application for the job and the only
skill he listed was his possession of a driver’s license and
his ability to be punctual. His job has routinely consisted of
the pickup and delivery of boxes of supplies, mail, paper,
prescriptions, birth certificates, and X-rays. The Union failed
to establish that Piercy, at any material time, performed any
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 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.
skilled maintenance work or worked in conjunction with, or
helped, any of the skilled maintenance employees perform
their jobs. He was never assigned the performance of any
maintenance work, skilled or otherwise, nor was he ever as-
signed to assist in the performance of such work, nor did he,
in fact, ever assist or perform such work. Respondent ob-
serves that the driver classification, in contrast to the skilled
maintenance classification, requires only a high school edu-
cation and a valid New Jersey driver’s license (R. Br. 53).
Respondent’s drivers are employed in several departments in
Respondent’s establishment: the X-ray department, the lab-
oratory department, Eldermed, and the maintenance depart-
ment.
Discussion and Conclusions
The Board’s final rule in establishing bargaining units ap-
propriate in the health care industry, reprinted in 284 NLRB
1528 (1987), establishes that one of eight appropriate units
is: ‘‘All skilled maintenance employees.’’ St. Margaret Me-
morial Hospital v. NLRB, 991 F.2d 1146 (3d Cir. 1993). The
validity of the Board’s rule was upheld in American Hospital
Assn. v. NLRB, 111 S.Ct. 1539 (1991).
As the Union acknowledges, where there are voting eligi-
bility disputes in a stipulated unit, the Board’s function is to
ascertain the parties’ intent with regard to the disputed em-
ployees (U. Br. 13). In the instant case, the parties stipulated
the inclusion in the skilled maintenance unit not of ‘‘driv-
ers’’ but only of ‘‘maintenance helper-drivers.’’ Whatever
else Piercy was, he was not declared to be a maintenance
help-driver. He was hired as a ‘‘driver’’ and performed work
as a ‘‘driver.’’ He was never a maintenance helper nor did
he in fact help skilled maintenance employees (or, on this
record, any other employees) perform skilled maintenance or
any other maintenance work. He was a driver.
The fact that he was employed in the maintenance depart-
ment, was supervised by the supervisors of skilled mainte-
nance employees, and worked closely with clerical employ-
ees in the maintenance department (similarly excluded from
the skilled maintenance unit) is not determinative. The de-
partment in which an employer places an employee is not de-
terminative of whether the employee nevertheless properly
belongs in the skilled maintenance unit. Rhode Island Hos-
pital, 313 NLRB 343 (1993). See Toledo Hospital, 312
NLRB 652 (1993). In Rhode Island Hospital, supra, the
union would include in the skilled maintenance department
certain classifications in the transport department including
two motor vehicle operators. In that case, as in the instant
case, the drivers were required to have completed a high
school education and hold a valid chauffeur’s license. One
of the drivers was responsible for transporting confidential
materials from the hospital to other hospitals and any other
materials needed to be hand-delivered by a courier. The other
driver was primarily responsible for delivering mail to the
hospital’s two off-campus sites. In that case, as in the instant
case, the drivers used motor vehicles provided by the hos-
pital, performed no maintenance work and assisted no em-
ployees who performed maintenance functions. The Board
held, that these drivers performed no skilled maintenance
work and that there was no basis for including them in the
skilled maintenance unit. The fact that the drivers drove to
all areas of the hospital and were not generally confined to
a single building was as irrelevant to their placement as was
the level of their salary and the ultimate supervision, com-
mon with skilled maintenance employees, under which they
worked. In short, the Board excluded them from the skilled
maintenance unit. Rhode Island Hospital, supra.
The fact that driver Lowe, another driver employed in the
skilled maintenance department, voted in the June 24, 1993
election without challenge (G.C. Exh. 10) by any party
makes his vote, his qualification, and his function irrelevant
in the instant case. Had Lowe been challenged, the matter of
his classification and function would have been presented for
resolution. Where, as here, all parties permitted him to vote
without challenge, they have effectively mooted his position
as a means of comparison with that of Norman Piercy. The
issue is whether Piercy should vote, not whether unchal-
lenged Lowe, who may have been similarly situated, creates
a precedent supporting Piercy’s vote.
I therefore conclude that the unit and classifications stipu-
lated by the parties, the classification and functions of Nor-
man Piercy all demonstrate that it was the intent of the par-
ties to exclude mere drivers from the skilled maintenance
unit; that Piercy is not a maintenance helper-driver; that his
functions do not remotely resemble that of a helper to any
maintenance employee; and that he has no community of in-
terest with the unit employees. I therefore recommend to the
Board that Piercy is not eligible for inclusion in the unit and
that the challenge to the ballot of Norman Piercy be sus-
tained.
In view of my recommendation to the Board that the chal-
lenge to Norman Piercy’s ballot be sustained, it follows that
his vote may not be counted in the election. Assuming, there-
fore, that the challenged ballots of Cilento and Behring,
supra, are to be opened and counted because their challenges
have been overruled and assuming, further, that they voted
in favor of the Union, the result of such voting would never-
theless show, in the light most favorable to the Union, a tie
vote of 20 to 20. It is therefore my recommendation that, al-
though I have overruled the challenges to both Cilento and
Behring, if the Board accepts my further recommendation
that the challenge to Piercy be sustained, it is then unneces-
sary to open or count the ballots of Cilento and Behring be-
cause the resulting tally of ballots would, in a light most fa-
vorable to the Union, show a tie vote of 20 to 20.
I therefore recommend to the Board that in view of my
having sustained the objections to the June 24, 1993 election,
that the election in Case 4–RC–18096 be set aside; that the
case be severed and remanded to the Regional Director; and
that a new election be held whenever the Regional Director,
Region 4, finds that the circumstances for such new election
in the appropriate unit be just and proper.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
The Respondent, Medical Center of Ocean County, Brick
and Point Pleasant, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1167MEDICAL CENTER OF OCEAN COUNTY
16 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.’’
1. Cease and desist from
(a) Coercively interrogating employees with regard to their
membership in, sympathy for, and activities on behalf of
International Union of Operating Engineers, Local 68-A,
AFL–CIO (the Union), or any other labor organization.
(b) Threatening employees with loss of benefits if the em-
ployees select the Union, or any other labor organization, as
their collective-bargaining representative.
(c) Asking employees to give Respondent additional time
to solve employee problems; promising employees to im-
prove their benefits and terms and conditions of employment;
and soliciting employees to convince other employees to
cease their support of the Union all for the purpose of dis-
couraging employees from selecting the Union as their col-
lective-bargaining representative.
(d) Asking employees what could be done to stop the
Union; soliciting employees to form an association of em-
ployees to deal with the Respondent rather than deal through
the Union.
(e) Soliciting employees’ complaints and grievances and
promising them improved benefits in order to discourage
them from selecting the Union as their collective-bargaining
representative.
(f) Warning an employee to make amends to a supervisor
because of the supervisor’s belief that the employee is a
union advocate, in order that the employee not be placed in
an unfavorable category by the supervisor.
(g) Discharging or otherwise discriminating against any
employee because of his membership in, sympathy for or ac-
tivities on behalf of the Union thereby discouraging support
for the Union or any other labor organization.
(h) In any like or related manner, interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to John Cilento immediate and full reinstatement
to his former job and position of employment, discharging,
if necessary, any replacement, or if such job or position no
longer exists, to substantially equivalent employment without
prejudice to his seniority and other rights and privileges, and
make him whole, with interest, as set forth in the remedy
section of this decision above, for any loss of earnings and
benefits he may have suffered as a result of Respondent’s
discrimination against him.
(b) Remove from Respondent’s files any notes, memo-
randa, and records, for the period March 31 to June 9, 1993,
or any other reference to or supporting Cilento’s June 9,
1993 discharge, and notify him, in writing, that this has been
done and that these materials will not be used against him
hereafter in any personnel actions.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due and the right of reinstate-
ment under the terms of this Order.
(d) Post at its facilities in Point Pleasant and Brick, New
Jersey, and at its Eldermed facility, copies of the attached
notice marked ‘‘Appendix.’’16 Copies of the notice, on forms
provided by the Regional Director for Region 4, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the Union’s objections to the
election herein be sustained, and that the election in Case 4–
RC–18096 be set aside.
IT IS FURTHER ORDERED that Case 4–RC–18096 be sev-
ered and remanded to the Regional Director for Region 4,
and that the Regional Director conduct a second election at
such time and place as he deems circumstances afford a free
choice of a bargaining representative in the appropriate unit.
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 discharge, or otherwise discriminate against,
any of our employees because of their membership in, sym-
pathy for, or activities on behalf of International Union of
Operating Engineers, Local 68-A, AFL–CIO (the Union).
WE WILL NOT coercively interrogate our employees with
regard to their membership in, activities on behalf of, or
sympathies for the Union or any other labor organization, or
threaten them with loss of benefits if they support the Union.
WE WILL NOT promise any employee benefits or changes
in their terms or conditions of employment if they forego
their support for the Union.
WE WILL NOT inquire of any employee how to stop union
activity among our employees, suggest that they form an as-
sociation of employees rather than bargain through the
Union, solicit employees’ complaints and grievances, promis-
ing them improved benefits in terms and conditions in order
to discourage them from selecting the Union as their collec-
tive-bargaining representative.
WE WILL NOT warn employees to apologize to or make
amends to a supervisor because the supervisor believes that
the employee is a union advocate, all in an effort to discour-
age employees’ support for the Union.
WE WILL NOT request employees to give us time to solve
their problems in order that they cease their support of the
Union.
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with,
restrain or coerce employees in the exercise of rights guaran-
teed by Section 7 of the Act.
WE WILL offer to John Cilento, unlawfully discharged on
June 9, 1993, immediate and full reinstatement to his former
position of employmentat our Point Pleasant facility, dis-
charging, if necessary, any replacement or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights he previously en-
joyed, and WE WILL make him whole with interest, for any
loss of earnings or benefits he may have suffered by reason
of his being unlawfully discharged.
WE WILL remove from our files any notes, memoranda,
records, for the period March 31 to June 9, 1993, or any
other reference to or supporting Cilento’s June 9, 1993 dis-
charge, and notify him, in writing that this has been done
and that these materials will not be used against him here-
after in any personnel actions.
MEDICAL CENTER OF OCEAN COUNTY