Peninsula Medical Center

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 582 (N.L.R.B. 1993)

582
312 NLRB No. 97
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 309 NLRB 990.
2 Although we agree with the judge that the Nursing Service Orga-
nization (NSO) is a labor organization within the meaning of Sec.
2(5) of the Act, we find it unnecessary to rely, as did the judge, on
the ‘‘NSO Update,’’ G.C. Exh. 30.
3 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.
In adopting the judge’s decision, we note that, although there is
no evidence to indicate when the election petitions were filed, no ex-
ceptions were filed to the judge’s finding that the Respondent had
knowledge of union activity in January 1990.
The Respondent has excepted to, inter alia, the judge’s finding that
the Respondent’s executive staff received recommendations from
each of its members as to wage rates in their respective areas of re-
sponsibility. In adopting that finding, we note that Jeff Corrigan, the
Respondent’s vice president for human resources, testified that the
executive staff received input from the various department vice
presidents when establishing or improving a wage rate. We further
note that one of those executive staff members, Vice President for
Nursing Karen Poisker, also functioned as an NSO executive com-
mittee member and was active in the reorganization and other NSO
affairs.
4 We find that the judge’s rulings, findings, and conclusions are
consistent with the Board’s decision in Electromation, Inc., supra. In
this regard, Member Devaney concludes, consistent with his position
in Electromation, supra, and E. I. du Pont & Co., 311 NLRB 893
(1993), that the Respondent usurped the Sec. 7 right of its employ-
ees to choose their own bargaining representative and therefore vio-
lated Sec. 8(a)(2). Member Devaney rejects the Respondent’s cita-
tion to his concurring opinion in Electromation to support its argu-
ment that the Nursing Service Organization was not a labor organi-
zation but was solely a management/employee communication de-
vice, so that the Respondent’s involvement with the NSO did not
violate Sec. 8(a)(2). In this regard, he distinguishes the Respondent’s
use of the NSO after January 1990 and the use made of the safety
conferences or ‘‘safety pauses’’ found lawful in Du Pont, supra,
(majority opinion) and (Devaney, concurring). In conducting the
‘‘safety conferences’’ and ‘‘safety pauses,’’ Du Pont informed em-
ployees that bargaining issues could not be discussed and when
bargainable issues arose, they were put on a ‘‘bucket’’ list and were
not discussed during the meetings. The respondent in Du Pont,
supra, made a good-faith effort to avoid discussing bargainable
issues and assured employees that the union was their exclusive rep-
resentative respecting bargainable matters. By contrast, the NSO here
was presented to employees as a means of presenting proposals to
management and the NSO acted as a representative of the nursing
staff in bargaining with management. Vice President for Nursing
Poisker, a member of the Hospital’s executive staff, also served on
the board of the NSO. On February 26, 1990, Poisker wrote to the
nursing staff that the NSO was being reorganized as a means for
problem solving and decision making regarding, among other things,
career paths and clinical ladders, and stated that ‘‘I am confident that
with the support of all and participation of dedicated representatives
from each area, we will have a means to affect change and involve
staff in decision making’’ (emphasis added). At the March 20, 1990
NSO meeting, the area representatives decided that they would speak
for and report back to their area nurses. The NSO circulated surveys
to the nursing staff, which elicited replies largely concerned with
mandatory subjects of bargaining, and Poisker circulated a memo at
NSO’s October meeting giving the status of the nurses’ concerns
vis-a-vis management. Finally, Poisker served on the committee for
setting up new bylaws for NSO, which were approved by the Hos-
pital’s board of trustees.
For the reasons stated in his concurrence in Electromation, supra,
Member Raudabaugh agrees with his colleague’s adoption of the
judge’s finding that the employee committee involved here was a
labor organization within the meaning of Sec. 2(5) of the Act and
that the Respondent’s conduct in dominating and interfering with the
employee committee violated Sec. 8(a)(2). With particular respect to
the 8(a)(2) allegations, Member Raudabaugh considers four factors
in evaluating the Respondent’s conduct: (1) the extent of the Em-
ployer’s involvement in the structure and operation of the commit-
tee; (2) whether the employees, from an objective standpoint, reason-
ably perceive the employee participation program as a substitute for
full collective bargaining through a traditional union; (3) whether
employees have been assured of their Sec. 7 right to choose to be
represented by a traditional union under a system of full collective
bargaining; and (4) the Employer’s motives in establishing the em-
ployee participation program.
Here, as in Electromation, supra, the Respondent dictated the
structure of the committee and controlled its operations, the employ-
ees could reasonably view the committee as a substitute for collec-
tive bargaining through traditional union representation, and the em-
ployees were never given assurances of their right to choose collec-
tive bargaining through traditional union representation. The judge
made no findings regarding the Employer’s motives in dominating
and interfering with the employee committee, but in light of the
other factors present in this case, the lack of a finding of bad motive
is not determinative. Accordingly, Member Raudabaugh finds that
the Respondent’s conduct was unlawful.
Peninsula General Hospital Medical Center and
Professional Staff Nurses Association. Case 5–
CA–21440
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 14, 1992, Administrative Law Judge
Peter E. Donnelly issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, the Charging
Party filed a brief in response to the Respondent’s ex-
ceptions, and the Respondent filed a reply to the an-
swering briefs of the General Counsel and the Charg-
ing Party. On December 16, 1992, the Board issued its
decision in Electromation, Inc.1 In that decision, the
Board discussed in detail the standards for determining
whether an employee group is a ‘‘labor organization’’
within the meaning of Section 2(5) of the Act and the
kinds of employer conduct that violate Section 8(a)(2)
of the Act. The Board thereafter invited the parties to
file supplemental briefs concerning the impact, if any,
of Electromation, Inc., supra, on the facts of this case.
The Respondent and the Charging Party filed supple-
mental briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings,2 findings,3 and conclusions4 and to adopt the rec-
ommended Order.
583PENINSULA MEDICAL CENTER
1 The name of the Charging Party changed and was amended at
the hearing to appear as Professional Staff Nurses Association (the
Union or the Charging Party).
2 Poisker is one of eight individuals on the Hospital’s executive
staff. Those individuals are the president of the Hospital, consultant
for medical affairs, vice president for operations, vice president for
finance, vice president for nursing, vice president for support serv-
ices, vice president for professional services, and vice president for
human resources. It is the function of the executive staff to formu-
late a Hospital budget for each fiscal year. This involves input from
each of the executive staff, including wage recommendations for
their areas of responsibilities.
3 The co-chairs have staggered terms.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Peninsula General Hospital
Medical Center, Salisbury, Maryland, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Ronald Broun, Esq., for the General Counsel.
Arthur M. Brewer, Esq. and Gary Simpler, Esq., of Balti-
more, Maryland, for the Respondent.
Larry Grosser, of Columbia, Maryland, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. On
charges filed by Economic and General Welfare Program of
the Maryland Nurses Association,1 a complaint issued on
January 8, 1991, alleging that Peninsula General Hospital
Medical Center (the Employer or the Respondent) violated
Section 8(a)(1) of the Act by soliciting grievances from em-
ployees and promising to attempt to rectify them. The com-
plaint also alleges that Respondent dominated, interfered
with, and assisted in the administration and support of a
labor organization called the Nursing Service Organization
(NSO) in violation of Section 8(a)(1) and (2) of the Act. An
answer thereto was timely filed by Respondent. Pursuant to
notice, a hearing was held before me on September 17 and
18, 1991. Briefs have been timely filed by General Counsel,
Respondent, and Charging Party, which have been duly con-
sidered.
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
The Employer is a Maryland corporation with an office
and place of business in Salisbury, Maryland, where it is en-
gaged as a hospital in providing medical and professional
care services to the general public. During the preceding 12
months, the Employer, in the course and conduct of its busi-
ness operations, derived gross revenues in excess of $50,000,
and purchased and received at its Salisbury, Maryland facil-
ity products, goods, and materials valued in excess of $5000
directly from points outside the State of Maryland. The com-
plaint alleges, the Employer admits, and I find that the Em-
ployer is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, for the pur-
poses of this case, and I find that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent Hospital, as noted above, is located in Salis-
bury, Maryland, where it provides some 383 beds and em-
ploys some 1800 employees. Approximately 400 of these
employees are registered nurses and 100 are licensed prac-
tical nurses.
The NSO has existed since at least 1968. Its membership
under bylaws enacted in 1988 consists of ‘‘all registered and
licensed practical nurses who are employed at Peninsula
General Hospital Medical Center.’’ Originally, the NSO was
supported by the voluntary dues of the membership, but by
1988, dues contributions had become insufficient to support
the NSO. It was then that Karen Poisker, vice president for
nursing, submitted as a Hospital budget item $500 annually
for funding the NSO. The NSO has been funded by Re-
spondent in that manner since that time.2 At its inception,
and for some time thereafter, the NSO was devoted exclu-
sively to the professional and social concerns of its members,
apparently not their working conditions. Typically, it sent
cards and flowers to members on such events as retirements,
births, and the like.
Poisker was first employed by the Hospital in 1975 as a
registered nurse and rose through the nursing ranks to her
present position as vice president for nursing. Her duties for
management include the supervision of all in-patient nursing
areas.
It appears that Poisker was and has been, throughout her
employment, a member of the NSO. Even after becoming
vice president for nursing, Poisker retained her membership
in the NSO. In addition to her membership, Poisker is a
member of the NSO executive committee, a group that meets
to discuss and formulate agendas for the NSO membership
meetings. The NSO executive committee consists of four in-
dividuals, the two co-chair persons of NSO, the immediate
past co-chairman of NSO,3 and the vice president of nursing,
Poisker herself. In addition, Poisker was a member of and
advisor to the bylaws committee of NSO, a group established
to revise the NSO bylaws.
It appears that the character of the NSO was basically un-
changed until about November 1989. Poisker became con-
cerned that the NSO was growing less effective and she
wanted to rejuvenate it. In this regard, the minutes of the
NSO meeting for November 28, 1989, reflect a discussion
among the NSO executive committee, including Poisker, to
the effect that to promote better communication, an employee
representative from each nursing area should be chosen as a
representative to attend NSO meetings and report back to the
staff of the area represented. According to the minutes:
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 NSO meetings were held on Hospital premises during work
hours. The minutes of all NSO meetings were taken and typed up
by Vicky Friedman for distribution. Friedman is the secretary to the
nursing administration office, headed by Poisker.
5 All dates refer to 1990 unless otherwise indicated.
6 The NSO bylaws provide for monthly NSO meetings attended by
a staff nurse representative from each of the various nursing areas.
It appears that the manner of selecting these representatives varied,
but as Poisker testified, at least some were appointed by manage-
ment.
Ms. Poisker also stated that the main concern of
NSO is that we have major concerns throughout all
nursing; concerns such as weekend differential, clinical
ladder, etc. We need to have a way to communicate
these major issues to all the nurses. NSO can accom-
plish that if we have [an area] representative who is
willing to participate. She pointed out that management
needs to make a commitment to get these individuals
here at these meetings. This can be accomplished by
prescheduling and seeing that these nurses get here to
these meetings. Ms. Poisker stated that they have tried
listening sessions, prescheduled meetings, etc., and the
attendance is always poor. Ms. Poisker stated that in
some instances it is more important to get the concerns
directly from the staff [nurses] instead of having them
filtered through management.4
It appears that at some time around January 1990,5 the
Union began an organizational effort at the Hospital. Jeffrey
Corrigan, vice president for human resources, testified that
he became aware of this effort in January, although Poisker
testified that she did not learn of any union activity until
February 1990. In any event, on January 9, the operating
room of nurses, dissatisfied with their working conditions,
staged a job action to protest various conditions of their em-
ployment, including wages, overtime, and staffing. Also in
January, the Union filed petitions for elections in two units,
a unit for all professional employees and a second unit for
all technical employees. An election was held in the profes-
sional unit on April 26, which the Union lost.
Another event that occurred in January, after the job ac-
tion, was an open meeting of the NSO on January 16. This
meeting was attended by some 35 to 40 NSO members, as
well as Poisker, who attended most NSO meetings. It was a
disorderly meeting with employees voicing their complaints.
The regular agenda format for this meeting was not followed.
At this meeting Susan Steelman, who was president of the
NSO at that time, spoke about restructuring the NSO to meet
the concerns of the staff nurses. Poisker also spoke at this
meeting. According to registered nurse Melody Higgins,
Poisker told those present that she wanted to hear about their
problems, and thereafter ensued a question and answer period
between those nurses present and Poisker dealing with em-
ployment problems such as wages, insurance benefits, and
weekend scheduling. Poisker testified:
If you want to talk about the January 1990 meeting
of NSO, if they gave me concerns that I could rectify
then, I would of rectified them then. We did not have
any union activity at that point that I was aware of. If
someone said, I’ve got a problem with my schedule, I
would of said, fine I’ll let your manager know that.
On February 26, a letter was distributed to the nursing
staff from Poisker wherein Poisker sympathized with the
‘‘frustration and concern’’ of the nursing staff over various
conditions of their employment, including ‘‘salaries, bene-
fits.’’ In this letter, Poisker recites the following as actions
we have taken to begin to address the major areas of con-
cern:
1. Decision making. Last fall we began a reorganiza-
tion of the NSO to better utilize it as a means for active
problem solving and decision making regarding nursing
department policies, practice issues and projects (e.g.
career paths, shared governance, clinical ladder, budget
process). This change was agreed upon in the Novem-
ber NSO meeting and was targeted to be put into effect
for the January NSO meeting. I am confident that with
the support of all and participation of dedicated rep-
resentatives from each area, we will have a means to
affect change and involve staff in decision making.
The memo also advised the nursing staff that consultants
had been hired by the Respondent to examine ‘‘our entire
compensation package including benefits.’’ The memo also
recites, in pertinent part:
As you may know, Personnel is also planning a ben-
efits survey so that they will be sure to know what the
priorities should be for consideration in this next budget
year. Personnel’s survey will be completed in March; a
consultant’s recommendation will be available for plan-
ning for the upcoming fiscal year.
On February 27, another NSO meeting was held. The
meeting was conducted by Susan Steelman, president, and at-
tended by Poisker. The minutes of the meeting reflect the so-
licitation of a benefits survey by Jeff Corrigan, vice president
for human resources, and read, in pertinent part:
Ms. Steelman introduced Mr. Jeff Corrigan who was
present to introduce a benefits survey. The remainder of
the meeting was occupied in completing the survey.
Corrigan testified that management ‘‘had designed a survey
to get some information regarding employee preferences on
benefit enhancements and their feelings about a couple of
trade-offs on benefits that we were considering or looking
at.’’ Poisker testified that the purpose of the benefits survey
was ‘‘really to ascertain how we could best provide a menu
of benefits that most employees would be satisfied with.
What else they’d like to see that we didn’t have then.’’ The
survey was distributed to about 1100 employees at some 60
meetings. At the NSO meeting, as with the other meetings,
the survey was explained, distributed, filled out, and col-
lected at the same meetings.
On March 20, the monthly executive committee NSO
meeting was held, attended by about 19 area representatives
as well as Poisker.6 At this meeting, it was decided by those
area representatives present that the area representatives
would have the representatives speak for and report back to
their respective areas. The minutes of the March 20, 1990
585PENINSULA MEDICAL CENTER
meeting provide an insight into the nature of the NSO and
are set out here in their entirety.
EXECUTIVE NURSING SERVICE ORGANIZATION
March 20, 1990
PRESENT:
Isabelle White, PEDS Dot Ridgeway, Endo
Charlotte Brown, Cent.
Proc.
Christine Cannon, Vas. Lab.
Mary Kay Benn, Cath
Lab
Susan Collins, 2E
Tana Miles, 4EA Jo Washburn, 4EB
Mary Beth Thomas, 5W Laura Crum, CCU
Ann King, OPS Susan Matthews, Card. Rehab
Joyce Lecates, 3WA Bert Williams, 4W
Jo Ann Lewis, 2W June Elliott, Qual. Rev.
Dale Twilley, OR Carolyn Wootten, 5W
Susan Steelman, 3WA Karen C. Poisker, V.P. for
Nursing
ABSENT:
Linda Hooker, 5EC Joyce Harrison, 3E
Pat Raith, 2E Sherri Carrow, MNU
Gary Dowdena, 5E Jan Schaffner, ICU
Dawn Lietchy, L & D Cathy Hurley, PACU
I. CALL TO ORDER
The meeting was called to order at 9:07 a.m by Susan
Steelman, Chairperson.
II. GOALS AND OBJECTIVES
After much discussion re: the decision to reorganize
NSO it was decided that:
ACTION:
IT WAS THE CONCENSUS [SIC] OF THE GROUP THAT THE
REGULAR MONTHLY MEETING SHOULD CONSIST OF
ONLY THE REPRESENTATIVES FROM EACH AREA. THIS
WOULD LIMIT THE GROUP TO ONE THAT COULD EXPECT
TO ACTIVELY PROBLEM SOLVE.
Area representatives have the responsibility to speak for
and report back to their respective areas.
ACTION:
MOTION WAS MADE, SECONDED, AND CARRIED THAT
THERE SHOULD BE A QUARTERLY MEETING OPEN TO
ALL NURSING FOR OPEN DISCUSSION.
It was discussed that the organization should have two
co-chairpersons because of it being such a large group.
Discussion ensued.
ACTION:
MOTION WAS MADE, SECONDED, AND CARRIED FOR THE
CO-CHAIRPERSONS TO BE SUSAN MATTHEWS, CARIAC
[SIC] REHAB, AND JAN SCHAFFNER, ICU.
It was decided that each co-chairperson will contact
each of the 26 representatives to discuss and agree
upon what the agenda will be for the regular NSO
meeting.
II. BY-LAWS
Discussion of the need for By-Laws or some other or-
ganizational structure occurred. Mrs. Poisker volun-
teered to contact North Arundel Hospital to see if it
would be willing to share their organization’s By-Laws.
ACTION:
THE FOLLOWING INDIVIDUALS VOLUNTEERED TO BE ON
THE BY-LAWS COMMITTEE: JOYCE LECATES, JUNE EL-
LIOTT, LAURA CRUM, CHRIS CANNON, SUSAN STEELMAN,
AND KAREN POISKER.
III. BOARD REPRESENTATION
ACTION:
MOTION WAS MADE, SECONDED, AND CARRIED THAT
THE TWO CO-CHAIRPERSONS WILL REPORT IN THE JOINT
CONFERENCE COMMITTEE OF THE BOARD OF TRUSTEES
QUARTERLY.
IV. EDUCATIONAL SEMINAR
Some of the representatives said that they felt that they
did not understand the structure of the Board, its role
or its functions and how decisions are made for the
hospital.
ACTION:
IT WAS DECIDED THAT KAREN C. POISKER PRESENT AN
EDUCATIONAL SEMINAR ON THE ROLE AND FUNCTION
OF THE BOARD. SOMETIME IN THE NEAR FUTURE, PROB-
ABLY FOLLOWING THE RESOLUTION OF TESTIMONY ON
PROFESSIONAL AND TECHNICAL VOTING UNITS.
V. AGENDA
Discussion ensued.
ACTION:
THE AGENDA WAS DECIDED UPON FOR THE NEXT MEET-
ING BY THE REPRESENTATIVES.
VI. ADJOURNMENT
The meeting was adjourned at 10:10 a.m. by Susan
Steelman, Chairperson.
At the March 27 quarterly open meeting of the NSO, with
respect to the matter of drafting new Bylaws for the NSO,
the minutes recite:
VI. Bylaws
Ms. Matthews discussed the setting up of new bylaws
for NSO and informed the group that Karen Poisker
would be serving on the committee as an advisor and
Susan Steelman would also be serving on the commit-
tee as a consultant.
The minutes also recite that:
Ms. Jan Schaffner stated that she sees NSO as an advo-
cate for nursing where suggestions, complaints, etc.,
can be discussed and that she feels that NSO will be-
come a bridge between nurses and nurses management.
A communication dated April 1990, captioned ‘‘NSO UP-
DATE’’ and signed by co-chairs Matthews and Schaffner,
read, in pertinent part:
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The election in the professional unit was held on April 26, as
noted above.
8 Attached to the minutes is a numbered itemization of some 23
‘‘Nurses Concerns’’ dealing almost exclusively with dissatisfaction
about wages, hours, and other terms and conditions of employment.
There have been some recent changes in the NSO
structure and philosophy. The ground work for these
changes was set November 20, 1989. The goal is to in-
crease nursing participation in NSO and to see NSO as
a vehicle to affect change, serve as an advocate for
nursing and become a bridge between nurses and nurs-
ing management.
By memo dated April 11, Matthews and Schaffner solic-
ited NSO area representatives to participate in a survey to
determine what the problems were with the working condi-
tions of the nursing staff. It reads:
Please remit your concerns or problems to Susan Mat-
thews, cardiac rehab, or Jan Schaffner, ICU, so that
they may prioritize and set the agenda for the NSO area
rep meeting on April 24, 1990.7
Please remit these items to them by Monday after-
noon.
Having received responses to these solicitations, which
clearly concern primarily matters of wages, hours, and terms
and conditions of employment, it appears that at the April 24
meeting, these issues were presented to the group by Mat-
thews, utilizing a flip chart listing the individual items. The
minutes of that meeting state, inter alia:
Mrs. Matthews reviewed a list of ideas and concerns
that were generated from the area reps. Some of these
ideas will need to be prioritized by the Recruitment and
Retention Committee (see attached list).8
At the NSO meeting on October 23, the above list of con-
cerns raised by the area survey and presented to the April
24 meeting was ‘‘updated.’’ Those matters, relating almost
exclusively to working conditions of one kind or another,
were discussed among those present, with Poisker responding
to the various complaints.
Many of those complaints raised at the April 24 meeting
had been rectified by management between April 24 and the
October 23 meeting. Others were still under consideration or
had been rejected. When Matthews was questioned as to why
these matters, which clearly concerned working conditions,
were reviewed, the record reflects the following exchange:
JUDGE DONNELLY: All right. Let me ask you this. At
the October meeting we got—well, first of all, we have
the April 24 meeting and this was meeting at which
you set out on a flip board the responses that you got,
nursing concerns?
WITNESS: Yes, sir.
JUDGE DONNELLY: And then in the October meet-
ing—I’m referring to the Minutes. We’ve got Updating
Nurses Concerns. Ms. Poisker circulated copies of the
nursing concerns to the group, reviewed the items,’’
and so forth. They go down the line with those items,
right?
WITNESS: Yes, sir.
JUDGE DONNELLY: Now, your testimony has been
that the NSO did not exist for dealing with that type
of concern? Is that correct?
WITNESS: Yes, sir.
JUDGE DONNELLY: Can I ask you why they were
raised, discussed, brought up these various—at least
two meetings. You have the one on the 9th—excuse
me, you have the one in April, April 24, and again on
October 23 and they were gone over and reviewed.
What was the purpose of that if the NSO served no
function in that regard?
WITNESS: In our request for the nursing concerns and
problems we received those issues sent to us along with
others that were nurse practice related. After having re-
ceived them, it was necessary to do something with
them. Therefore, we made—we felt that what we had
done was we made management aware that these con-
cerns were there. That was all. We did not expect to
address those in terms of a solution for them because
we could not do that. We were more concerned with
the nurse practice issues, but the other issues that had
surfaced we had to take them somewhere and—
JUDGE DONNELLY: Management was the only one
who could change the shift hours? Management was the
only one—management is the only one who’s going to
be able to change—to increase money for shift differen-
tials?
WITNESS: Exactly.
JUDGE DONNELLY: Or to change overtime—the over-
time hours and all of those other concerns?
WITNESS: Yes, sir.
JUDGE DONNELLY: Did you view it as a function of
NSO to bring those matters to the attention of the peo-
ple who could so something about it, namely the man-
agement?
WITNESS: Once they had been delivered to us and
sent to us, even if that wasn’t what we had looked to
receive, we felt that it was best for us to send them on
for someone to address them and that was all.
JUDGE DONNELLY: Okay.
The minutes of the October 23 meeting set forth the fol-
lowing remarks by Poisker:
Ms. Poisker summarized the discussion by circulat-
ing a summary of the NSO’s Nurse’s Concerns cat-
egorized as those implemented, not implemented, but
under consideration. Not implemented and not under
consideration, and those that required further informa-
tion (see attached). Karen also stated that she kept hear-
ing ‘‘nothing had changed’’ and considering all these
changes plus clinical ladder, acuity, pension, per diem,
and those that NSO had made, she felt that perhaps that
was due to limited changes in day to day things on
nursing areas. Since it is important to know what con-
cerns and issues are on units, so that we can address
those we can do something about, Ms. Poisker asked
the group to complete a survey (see attached) that re-
quested information on 4 issues for the area and 2
changes that could make an immediate positive impact.
Ms. Poisker stated that we are committed to making
positive changes and that she would like to share the
587PENINSULA MEDICAL CENTER
9 Sec. 8(a)(2) makes it an unfair labor practice for an employer
‘‘to dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it.’’
10 Respondent also appointed at least some of the area representa-
tives within the NSO, and this too was interference in the internal
affairs of the NSO.
11 The complaint alleges that on or about March 27 and April 24,
Poisker solicited grievances from employees and promised to attempt
to rectify them. However, the record is factually insufficient to sup-
port these allegations.
results of this survey with NSO. She also informed the
group that Nurse Managers would be working with
solving some of the issues that the survey identified.
The minutes of the October 23 meeting also reflect that
the newly formulated NSO bylaws were ‘‘shared with’’ Re-
spondent’s board of trustees by NSO co-chairs Matthews and
Schaffner and ‘‘formally approved.’’
B. Discussions and Analysis
There are two basic issues to be resolved in this case. First
is whether the NSO was a labor organization. The second,
assuming that it is a labor organization, is whether Respond-
ent dominated or interfered with its formation or administra-
tion.
As to the issue of labor organization, Section 2(5) of the
Act defines a ‘‘labor organization’’ as ‘‘any organization of
any kind, or any agency or employee representation commit-
tee or plan, in which employees participate and which exists
for the purpose, in whole or in part, of dealing with employ-
ers concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work.’’ The pro-
bative evidence in this record makes it clear that the NSO
is a labor organization. At its inception, the NSO may have
been a social organization designed to provide amenities or
address social concerns not related to the working conditions
of the nurses. However, whatever its origins may have been,
the nature of the NSO changed in late 1989 and early 1990
when it began to address issues that clearly concerned work-
ing conditions. For example, the co-chairs of the NSO,
Schaffner and Matthews, conducted a survey of the area rep-
resentatives to the NSO to identify problem areas in working
conditions. The results of this survey were presented at the
NSO meeting on April 24. As set out in the minutes of that
meeting, the survey results disclose a litany of work-related
items that were causing dissatisfaction among the nursing
staff. Surely, there was a purpose in conducting the survey,
and that purpose must have contemplated the involvement of
management, since management alone was in the position to
remedy perceived inequities. The fact is that management
was involved. Specifically, the record discloses that Poisker,
vice president for nursing and a member of Respondent’s ex-
ecutive staff which set corporate policy and established Hos-
pital budgets, was also, and at the same time, not only a
member of the NSO, but also a member of the NSO execu-
tive committee, a committee involved in establishing agendas
for the NSO meetings, and an active member of and advisor
to the bylaws committee of the NSO which formulated a new
set of bylaws to govern the NSO. Clearly, Poisker was ac-
tively involved in the affairs of the NSO and particularly
prominent in the reorganization and restructuring of the
NSO. The record also discloses that she was fully engaged
in the matter of accepting and rectifying, where possible,
complaints by the nurses about their working conditions. Any
dealings that the NSO had with Poisker concerning dis-
satisfaction with working conditions is tantamount to dealing
with the Respondent on those matters.
In addition, it appears that the NSO adopted a policy of
having its co-chairs report to the Hospital board of trustees.
This was done with the new NSO bylaws which were
‘‘shared with’’ and ‘‘formally approved’’ by the board of
trustees. The record includes numerous other examples which
illustrates the nature and purpose of the NSO, and based on
the facts recited above, and the entire record, especially the
minutes of the various NSO meetings, there can be little
doubt that the NSO, whatever its origins may have been,
clearly became an organization dealing with the Employer
concerning working conditions within the meaning of Section
2(5) of the Act.
Having concluded that the NSO is a labor organization,
there remains for consideration whether Respondent domi-
nated or interfered with the formation or administration of
the NSO or contributed financial or other support to it in vio-
lation of Section 8(a)(2) of the Act.9
First, let us examine the role played by Poisker in the af-
fairs of the NSO. As noted above, Poisker was vice president
for nursing and a member of the Hospital executive staff
which was responsible, inter alia, for funding the operation
of the Hospital. At the same time, she was active in the reor-
ganization of the NSO into the labor organization which sub-
sequently evolved. She was an active participant in affecting
fundamental changes in the NSO. She was a member of the
executive committee of the NSO and took part in establish-
ing agendas for NSO meetings. She was an active member
of the NSO bylaws committee, a consultant and actor in for-
mulating new NSO bylaws, which were eventually approved
by the Hospital board of trustees. Poisker was also involved
in discussing, responding to, and resolving a whole array of
work-related issues such as overtime scheduling, vacation,
wages, shift differential, and sick leave, all within the NSO,
and did so in a leadership role at NSO meetings.
A complete reading of the record convinces me that
Poisker was not only a compelling active vocal force within
the NSO, but was in fact the dominant force in restructuring
the NSO as a labor organization. Such activity constitutes
domination and interference in the affairs of the NSO.10
In addition to the direct participation in NSO affairs set
out above, the NSO meetings were conducted on Respond-
ent’s premises, and on its time. The annual budget $500
budget of the NSO was funded by management as a nursing
department budget item. Additional support was afforded to
the NSO by management in the form of secretarial assistance
provided to the NSO by the Hospital’s nursing department
whose secretary took the notes and typed of the minutes of
the NSO meetings for distribution.
Based on the foregoing, I am satisfied not only that the
NSO is a labor organization, but also that its affairs are
dominated and interfered with by Respondent.11 NLRB v.
Cabot Carbon Co., 360 U.S. 203 (1959); St. Vincent’s Hos-
pital, 244 NLRB 84 (1979).
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 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.
13 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.’’
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with Respondent’s operations de-
scribed in section I, above, have a close and intimate rela-
tionship to traffic and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VI. THE REMEDY
Having concluded that Respondent has unlawfully domi-
nated and interfered with the reorganization and administra-
tion of a labor organization, the NSO, I shall recommend that
it completely disestablish and withdraw all support from the
NSO.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Sections 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The NSO is a labor organization within the meaning of
Section 2(5) of the Act.
4. By dominating, assisting, and supporting the NSO, Re-
spondent has been, and is, violating Section 8(a)(1) and (2)
of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Peninsula General Hospital Medical Cen-
ter, Salisbury, Maryland, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Dominating, assisting, or contributing financial or other
support to the NSO or any other labor organization.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw all financial or other support from and com-
pletely disestablish the NSO.
(b) Post at its facility in Salisbury, Maryland, copies of the
attached notice marked ‘‘Appendix.’’13 Copies of the notice,
on forms provided by the Regional Director for Region 5,
after being signed by Respondent’s authorized representative,
shall be posted by it immediately on receipt and maintained
for 60 consecutive days in conspicuous places, including
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for in writing within 20
days from the date of this Order what steps have been taken
to comply.
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 dominate, assist, or contribute financial or
other support to the NSO or any other labor organization.
WE WILL NOT in any like or related manner interfere, re-
strain, or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL withdraw all financial or other support from and
completely disestablish the NSO.
PENINSULA GENERAL HOSPITAL MEDICAL
CENTER