St. Elizabeth Community Hospital

National Labor Relations Board - Board Decisions

Feb 26, 1979

240 N.L.R.B. 937 (N.L.R.B. 1979)

ST. ELIZABETH COMMUNITY HOSPITAL 937
St. Elizabeth Community Hospital and Hospital and
Institutional Workers Union, Local 250, SEIU,
AFL-CIO. Case 20CA- 13646
February 26, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MFMBN RS JFNKINS
AND PI-NF.lI O
On November 17, 1978, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a brief in support of the Admin-
istrative Law Judge's Decision and in support of the
exceptions to that Decision. Respondent also filed
limited exceptions, a brief in support thereof, and an
answering brief to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National abor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent. St. Eliza-
beth Community Hospital, Red Bluff, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
I. Insert the following as paragraph 2(a) and relet-
ter the subsequent paragraphs accordingly:
"(a) Upon request, bargain collectively with the
Union as the exclusive bargaining representative of
the employees in the bargaining unit previously de-
scribed and embody in a signed agreement anN un-
derstanding which may be reached."
'The General Counsel has excepted to certain credihilit, finding, made
hN the Administrative Law Judge I is the Board's established policx not to
overrule an Adminlstrallse aw Judge's resolutions with respect to credlhili-
I unless the clear preponderance of all of the relekant e dence colsince,
us that the resolutions are incorrect. Standard Dr; Ifal Prollis /1m . 91
NILRB 544 (1950). enfd 18R F2d 362 (Id (ir 1951) We hare carefulk
examined the record and find no basis for reversing his findings
' Ihe Administrate ude .a Inaderlenll omlited afflriatlxc hbr-
gaining language from hi, recommended Order and notice. We shall mlodf,
the Order and notice n this respect
240 NLRB No. 151
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
No-rlI- To EPI.OYvlus
POStED BY ORDER OF HE
NAIIONAI LABOR RELAtIONs BOARD
An Agency of the United States Government
Wt wl.ll NO1 grant unilateral wage increases
to employees in the bargaining unit set forth be-
low without notifying. consulting with, and bar-
gaining with Hospital and Institutional Workers
Union. Local 250. SEIU, AFL-CIO. The bar-
gaining unit is:
Included: All full-time and regular part-time
service maintenance employees including
LVN's, nurses' aides, ward clerks, departmen-
tal clerks and secretaries, X-ray technicians,
respiratory therapy technicians, orderlies.
EEG technicians, EKG technicians, OB tech-
nicians. lab assistants/aides. surgical techni-
cians. housekeeping employees, central supply
employees, dietar' employees. maintenance
employees, medical records clerks and tran-
scrip tionists.
Excluded: All other employees, guards, confi-
dential employees and supervisors as defined
in the Act.
WE WIltL NOI in any like or related manner
interfere with. restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WI wni. upon request, bargain collectively in
good faith with the Union as the exclusive repre-
sentative of all our employees in the aforemen-
tioned unit.
St EL lIAB t COMMuNI IY OSPI I AI
DECISION
STATEMENT OF THE CASE
RICHARD D TAPLITZ Administrative Law Judge: This
case was heard before me at San Francisco, California. on
June 15 and 16, 1978. The charge was filed on February 3,
1978. by Hospital and Institutional Workers Union. Local
250, SEIU. AFL-CIO, herein called the Union. The com-
plaint issued on March 31, 1978, alleging that St. Elizabeth
Community Hospital. herein called Respondent, violated
Section 8(a)(1), (3). and (5) of the National Labor Rela-
tions Act, as amended.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Issues
The primary issues are:
I. Whether Respondent violated Section 8(a)( ) of the
Act by telling one employee in September 1977 that she
would not receive a wage increase because of the employ-
ees' union activities and by telling another employee in
January 1978 that her wage increase would be delayed be-
cause of the employees' union activities.
2. Whether Respondent violated Section 8(a)(5) and (1)
of the Act on September 5, 1977, by unilaterally granting a
wage increase to employees in its service and maintenance
unit during the pendency of objections and challenges after
a Board-conducted election and before the Union was cer-
tified as the bargaining agent of the employees in that unit.
3. Whether Respondent violated Section 8(a)(3) and (1)
of the Act on September 5, 1977, by discriminating against
employees in that bargaining unit by granting them a gen-
eral wage increase substantially smaller than the general
wage increase granted other employees.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FA( I
I. Illt- BISIN SS () RRSPONI)FNI
Respondent, an acute-care hospital in the health care
industry, having a place of business in Red Bluff, Califor-
nia, is one of approximately 22 hospitals owned and oper-
ated by the Sisters of Mercy Institution of Omaha, Nebras-
ka, a charitable institution and religious order of the
Catholic Church. During the past 12 months, Respondent
in the course and conduct of its operations received gross
revenues in excess of $250,000; during the same period Re-
spondent purchased and received goods valued in excess of
$10,000 directly from suppliers located out of the State of
California. As was found by the Board in Case 20-CA
13574, which is discussed below, Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and it will effectuate the policies of
the Act to assert jurisdiction herein.
A companion case involving the same parties, Case 20-
CA 13574. was submitted directly to the Board on March
6, 1978, on a Motion for Summary Judgment. On August
24, 1978, the Board issued its Decision and Order in that
case, which is reported at 237 NLRB 849, finding that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
would effectuate the policies of the Act to assert jurisdic-
tion; that since December I, 1977, the Union has been and
I In his brief the Cenerl (Counsel nmoves io include the cerlificatioln on
conduct of election for Case 2 R(' 14127 in the exhibit file. 1 lie exhibits
delivered to me contained that docuntit ais (i(. Ixh. 13.
now is the certified and exclusive representative of all em-
ployees in the following bargaining unit: Included-All
full-time and regular part-time service and maintenance
employees including LVN's, nurses' aides, ward clerks, de-
partmental clerks and secretaries, X-ray technicians, respi-
ratory therapy technicians, orderlies, EEG technicians,
EKG technicians, OB technicians, lab assistants/aides,
surgical technicians, housekeeping employees, central sup-
ply employees, dietary employees, maintenance employees,
medical records clerks and transcriptionists. Excluded
All other employees, guards, confidential employees and
supervisors as defined in the Act; and that by refusing on
or about December 13, 1977, and at all times thereafter, to
bargain collectively with the Union as the exclusive bar-
gaining representative of the employees in that unit and by
refusing on or about December 13, 1977, and at all times
thereafter, to furnish to the Union all necessary and rele-
vant information the Union has requested relating to bar-
gaining-unit employees' wages, hours, and other terms and
conditions of employment, Respondent has engaged in,
and is engaging in, unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act. The Board ordered Re-
spondent to cease and desist from refusing to bargain with
the Union and from refusing to furnish all necessary and
relevant information to the Union regarding bargaining-
unit employees' rates of pay, wages, hours, and other terms
and conditions of employment.
II ili LABOR OR(iANIZAIION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III Ie AL.(,ii.) NFAIR LABOR PRA(-ICFES
A. Background
Respondent operates a 45-bed, acute-care hospital in
Red Bluff, California. In early March 1977 the Union filed
four separate petitions for an election seeking elections in
four units of Respondent's employees. On May 20, 1977,
the Regional Director for Region 20 issued a Decision and
Direction of Election directing that elections be held in
each of the units. The unit in Case 20-RC-14116 consisted
of registered nurses; in Case 20-RC 14117, of business of-
fice clerical employees; in Case 20-RC 14126, of profes-
sional employees, including medical laboratory technolo-
gists, pharmacist, nursing coordinator, and social worker;
and in Case 20-RC 14127, of service and maintenance em-
ployees.2 An election in all four units was held on June 16,
1977. In each of the units other than service and mainte-
nance, a majority of the employees voted against the
Union, and a certification of the results of those elections
subsequently issued. As to the employees in the service and
maintenance unit, of approximately 96 eligible voters, 43
cast ballots for and 35 cast ballots against the Union. In
addition, there were 14 challenged ballots. On June 22. Re-
spondent filed timely objections in Case 20-RC-14127. Af-
A full descriptirlon of the sers ice and maintenance employees' unit is set
forth hive i the Satement of the Case.
ST. ELIZABETH COMMUNITY HOSPITAI. 939
ter investigation. the Regional Director issued a Supple-
mental Decision on August 30, 1977. recommending that
the objections be overruled in their entirety, that eight
challenges be overruled, that four challenges be sustained,
and that the Decision with regard to two challenges be
deferred until after the revised tall. On September 8. 1977.
Respondent filed a request for review of the Regional Di-
rector's Supplemental Decision. On November 20. 1977.
the Board, by telegraphic order, denied Respondent's re-
quest for review of the Regional Director's Supplemental
Decision as to Respondent's objections and deferred ruling
on the challenge to the ballot of one alleged supervisor. On
November 21, 1977. the Regional Director served a revised
tally of ballots showing that of approximately 96 eligible
voters, 45 cast ballots for and 40 cast ballots against the
Union. The three unresolved challenged ballots were insuf-
ficient in number to affect the election. On December 1 the
Regional Director certified the Union as the collective-bar-
gaining representative of the employees in that unit. Re-
spondent sought to test the certification by refusing to bar-
gain with the Union. As is set forth more fully above in the
Statement of the Case, a charge was filed in Case 20 CA
13574, a complaint issued thereon. and on a Motion for
Summary Judgment, the Board issued its Decision and Or-
der on August 24, 1978 (reported at 237 NLRB 849). find-
ing that Respondent violated Section 8(a)(5) and (I) of the
Act.
B. The Unilateral Pay Raise o f Seplemher 5, 1977- Factl,
and Conclusions
On September 5, 1977. Respondent granted a 5-percent
wage increase to all employees in the service and mainte-
nance unit. Respondent admittedly granted the raise with-
out notifying, consulting with, or bargaining with the
Union. The raise was granted after the election of June 16
and before the certification of December I, 1977. The com-
plaint alleges that the unilateral grant of the raise consti-
tuted a refusal to bargain with the Union in violation of
Section 8(a)(5) and (1) of the Act. Respondent contends
that because the raise was granted prior to the certification.
there was no obligation to bargain about it.
When an employer has a duty to bargain with a union, it
violates Section 8(a)(5) and (I) of the Act if it unilaterally
and in the absence of impasse grants a wage increase or
otherwise changes the terms and conditions of employment
of its employees. N.L.R.B. v. Benne Katz, etc., d bh,a Wil-
liamsburg Steel Products Co., 369 U.S. 736 (1962): Imperial
Tile Company. 227 NLRB 1751 (1977). The question pre-
sented here is whether, for the purpose of granting wage
increases, the duty to bargain arose as of the date of the
election or as of the date of the certification.
In Master Slack and, or Master Trousers Corp., et al., 230
NLRB 1054 (1977), the Board held that unilateral changes
of wages at a time when an employer was obligated to
bargain with a union violated Section 8(a)(5) of the Act.
that the violation existed even absent an independent
showing of overall subjective bad faith, and that the viola-
tion was not excused by economic expedience even if it
was made in good faith. The Board went on to hold:
"These principles also are applicable where an employer
changes terms and conditions of employment during the
pendency of objections to an election . . which even-
tuall results in certification." Id. In that case the Board
cited M:liAe O'Connor Chevrolel-Buick -GMC Co., Inc. (and
Pat O'('Connor Chevrolet-BuicA-(.GM(' Co., Inc., 209 NL.RB
701, 703 (1974). enforcement denied on other grounds 512
F.2d 684 (8th Cir. 1975). in which the Board held:
The Board has long held that, absent compelling
economic considerations for doing so, an employer
acts at its peril in making changes in terms and condi-
tions of employment during the period that objections
to an election are pending and the final determination
has not yet been made. And where the final determi-
nation on the objections results in the certification of a
representative. the Board has held the employer to
have iolated Section 8(a)(5) and () for having made
such unilateral changes. Such changes have the effect
of bypassing, undercutting. and undermining the
union's status as the statutory representative of the
employees in the event a certification is issued. To
hold otherwise would allow an employer to box the
union in on future bargaining positions by implement-
ing changes of policy and practice during the period
when objections or determinative challenges to the
election are pending. Accordingly, since we have al-
ready determined in this case that the Union should
be certified, we find, contrary to the Administrative
Law Judge, that Respondent was not free to make
changes in terms and conditions of employment dur-
ing the pendency of postelection objections and chal-
lenges without first consulting with the Union.
The Board has consistently followed the legal principles set
forth in O'Connor. IV. R. Grace & Co.. Construction Prod-
uclt. Dii.sion. 230 NLRB 617 (1977). enfd. as modified 571
F.2d 279 (5th Cir. 1978); Allis-Chalmers Corporation. 234
NLRB 350 (1978): Florida Steel Corporation. 235 NLRB
1010 ( 1978): The Catholic M edical Center of Brooklyn and
Queens, Inc..et al., 236 NLRB 497 (1978). See also N. L R.B.
v. Allied Products Corporation. Richard Brothers Division,
548 F.2d 644, 653 (6th Cir. 1977). In the instant case Re-
spondent granted an across-the-board, 5-percent wage in-
crease to the bargaining unit employees after an election in
which a majority of the votes counted were cast for the
Union and before the Union was certified. For the reasons
set forth above. Respondent could not at that time lawfully
change wages without first bargaining with the Union. The
5-percent wage increase was clearly a change in wages.
There can be no contention that the existing wage structure
contemplated an automatic wage increase of the kind giv-
en. The across-the-board increase to bargaining-unit em-
ployees was in contravention of past company policy. Re-
spondent contends that many employees were given more
than they would have otherwise received, and the General
Counsel contends that the employees received less than
they otherwise would have. Both agree that in granting an
across-the-board increase, Respondent deviated from its
past practice because of union considerations.
I find that Respondent violated Section 8(a)(5) and (l)
of the Act by granting its service and maintenance emploN-
ees a 5-percent raise on September 5. 1977. without notify-
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, consulting with, or bargaining with the Union.
C. The Alleged Remarks by Supervisors Concerning Payl
Increases Facts and Conclusions
1. Ann Henley
Respondent granted the employees in the service and
maintenance unit a 5-percent, across-the-board wage in-
crease on September 5, 1977. The increase appeared in the
employees' checks on about September 18, 1977. Ann Hen-
ley is employed by Respondent as a ward clerk. She testi-
fied that sometime between September 5 and September
18, 1977, she had a private conversation with Respondent's
director of nursing services, Mildred Johnstone, concern-
ing the wage increase. Henley testified: that she asked
Johnstone whether it was true that they would be receiving
a cost-of-living increase; that Johnstone replied in the affir-
mative and said that it would be 5 percent; that Johnstone
said that they had done a salary survey of other hospitals,
and some people would be receiving more depending on
their job titles; that Henley asked if she would be one of
those and that Johnstone replied in the negative; and that
Johnstone said that because Henley was in the service and
maintenance unit and the certification question hadn't
been settled yet, Henley would not be receiving a wage
adjustment. In further examination, Henley clarified her
testimony to indicate that Johnstone distinguished between
a cost-of-living raise, which would be given, and a wage
adjustment that would not be given. On cross-examination
Henley testified that Johnstone did not tell her that she was
supposed to get more. Henley received two raises in 1977.
One was the 5-percent increase, and the other was an "an-
niversary raise." 4
Johnstone testified that she had a staff meeting in late
August 1977, which was attended by service and mainte-
nance employees, and that in response to a question from
an employee, she told them that there had been a salary
survey and that there would be a 5-percent increase.5 How-
ever, Johnstone categorically denied that she had any pri-
vate conversation with Henley concerning the raise, and
she specifically denied that she made any of the statements
attributed to her by Henley.
As between Johnstone and Henley, I credit Johnstone.
Henley's attempt to distinguish between the cost-of-living
increase and the wage adjustment was not convincing.
There was only one raise being considered at that time.
Her admission that Johnstone did not tell her that she was
supposed to receive more was somewhat inconsistent with
her testimony that Johnstone told her that because she was
in the service and maintenance unit, she would not be re-
ceiving more. Johnstone's denials were believable, and I
credit her.
3Respondent admits and I find that Johnstone is a supervisor within the
meaning of the Act.
4Respondent's usual practice was to grant a step increase each year for
the first 5 ears of employment on the anniversary date of the emplosee's
hire.
Henley testified that she did not attend any staff meeting n August or
September 1977 where Johnstone discussed a wage increase.
2. Pat Joralemon
Pat Joralemon is employed by Respondent as a respira-
tory therapist. She received the 5-percent increase on Sep-
tember 18, 1977, and, in addition, an "anniversary raise" of
5 percent a couple of weeks later. In mid-January 1978 she
had a conversation with Respondent's personnel director,
John Mattingly,6 in Mattingly's office with no one else
present. Mattingly had called Joralemon into his office.
Joralemon had been the union observer at the election.
Mattingly had never called her into his office before.
Joralemon testified as follows: Mattingly asked her what
her feelings were toward the administration and whether
she felt bitter or felt that she had been treated unfairly; she
replied that she did not feel better, but that she felt treated
unfairly as far as wages were concerned; Mattingly said
that he did, too, but that due to the union involvement he
was unable to rectify the situation at that time; Mattingly
also said that when the union situation was settled, he
would get right on it and that it was a shame that they got
involved with the Union, because it tied his hands and he
was not able to do his job properly.
Mattingly acknowledged that he had a conversation in
his office with Joralemon, but his version of that conversa-
tion was substantially different. He averred that he found
that there was a mistake with regard to an overpayment for
on-call pay paid to therapy technicians and that he called
each of the technicians into his office to discuss it with
them. He averred that he explained the overpayment to
her, that he said that he was sure she was not overly happy
with it, that he asked if there was any real problem, and
that she said that she did not like a mistake like that being
made. He testified that that was the only conversation he
had alone with her in his office, and he denied that he ever
had a conversation with her concerning her actual wages,
the Union, or the election. He specifically denied all the
remarks attributed to him by her.
As between Joralemon and Mattingly, I credit Matting-
ly. It is difficult to believe that Mattingly would, out of the
blue, call the union observer into his office, ask her wheth-
er she felt bitter, and say that the Union tied his hands.
There is no evidence that this was part of a pattern of
antiunion activity undertaken by Mattingly. Joralemon
was the only one who testified that she was called into
Mattingly's office for such a purpose. Mattingly testified in
a very convincing manner, and I believe him. He is credit-
ed.
D. The Allegation that the Service and Maintenance
Employees Should Have Received a Larger Wage Increase
on September 5-Facts and Conclusions
On September 5, 1977, Respondent granted an across-
the-board, 5-percent increase to the service and mainte-
nance employees. That increase was part of the regular fall
increase that it grants employees each year.7 The fall in-
' Respondent admits and I find that Mattingly is a supervisor within the
meaning of the Act He was hired b Respondent on September 6, 1977.
That was after the September 5. 1977. raise had been granted.
In addition. Respondent gives "anniversary raises." merit increases, and
at arilous times, such as January 1977. a general Increase.
ST. ELIZABETH COMMUNITY HOSPITAL 941
crease in 1974 was granted on August 12: in 1975, on Au-
gust II : in 1976, on September 6; and in 1977, on Septem-
ber 5. However, Respondent admits that in determining
the amount of the fall increase for the service and mainte-
nance employees in 1977, it deviated from its standard
practice. In the past, all of Respondent's employees were
placed into various categories, and a raise was decided
upon for each of the categories separately. That procedure
was followed in 1977 for all employees other than those in
the service and maintenance unit. J. Michael Barry, Re-
spondent's administrator.8 testified that the usual criteria
he would have applied in the absence of the election would
have led to some of the employees in the unit receiving a
small or no raise and that he was afraid that he would be
accused of taking reprisals against them. He averred that
he used his normal criteria to decide which category within
the service and maintenance unit would receive the highest
raise and that he converted that raise to a percentage figure
and gave everyone in the unit that percent increase. Gener-
al Counsel contends that employees in the bargaining unit
would have received a larger-than-5-percent increase if the
normal criteria had been applied. Counsel for the General
Counsel has not indicated what he thinks the raise should
have been. However, all parties agree that Respondent de-
viated from its standard practice with regard to the Sep-
tember 5 raise for the service and maintenance employees
because of the employees' union activities with relation to
the representation proceeding.
The complaint alleges that Respondent discriminated
against the employees in the service and maintenance unit.
in violation of Section 8(a)(3) and 1) of the Act, by grant-
ing them a general wage increase on September 5 that was
substantially smaller than the general wage increase grant-
ed its other employees. At first blush it appears inconsis-
tent for the General Counsel to contend that the Septem-
ber 5 increase to those employees constituted a violation of
Section 8(aX5) of the Act on the theory that no raise could
have been lawfully granted without bargaining with the
Union, while at the same time contending that the same
wage increase violated Section 8(a)(3) of the Act because it
was not large enough. However, Respondent cannot at the
same time refuse to honor its bargaining obligation and use
the existence of that bargaining obligation to defend
against the 8(a)(3) allegation. In Verona Dvestuff Division
Mobay Chemical Corporation, 233 NLRB 109 (1977), an
employer refused to bargain with a union to test the find-
ing in a representation case that the unit was appropriate
for bargaining. In a Motion for Summary Judgment, the
Board found that the employer violated Section 8(a)(5) of
the Act. With regard to the 8(a)(3) allegation, the Board
held:
It is well established that the withholding of wage
increases and/or benefits from employees who are
awaiting the holding of a Board election, or who have
chosen a union as their collective-bargaining represen-
tative, violates Section 8(a)(3) and (1) of the Act if
such employees otherwise would have been granted
Respondent admits and I find that Barrn is a superior slthin Ihc
meaning f the ct
the wage increases and/or benefits in the normal
course of the employer's business. ' ,' Furthermore, Re-
spondent's claim that its withholding of the wage in-
crease and the additional holiday from unit employees
is justified by virtue of its established policy of negoti-
ating such matters with the employees' collective-bar-
gaining representative is unavailing, particularly in the
circumstances here in which Respondent has admit-
tedly refused to recognize and bargain with the
Union.l Accordingly. we find that Respondent has
violated Section 8(a)(3) and (1) of the Act by refusing
and failing to grant to unit employees the general
wage increase and additional holiday which it granted
to all production and other employees at its Bushy
Park Plant.
0'i(orlndl Sel ( orlrtim n 220 NI.RB 1201. 1203 1975. and
,lses cited theretl
Where an employer withholds a wage raise that would
otherwise be given to employees but for their union activi-
ty, that employer discourages union activity and interferes
with employee rights guaranteed by the Act. The same is
true for the granting of a pay raise. That logic applies even
after an election when objections are pending and the em-
ployer refuses to bargain. Wells Fargo Alarm Services, a
Diivision of Baker Industries. Inc. 224 NLRB 1111 (1976). In
such circumstances the employer's legal duty is to proceed
as it would have done had the union not been on the scene.
See The Catholic Medical Center of Brookivn and Queens,
Inc., et al. 236 NLRB 497; Stumpf Motor Compan,. Inc.,
208 NLRB 431, 433 (1974). 9
Respondent admits that it deviated from its normal pat-
tern of raise increases due to union considerations. A viola-
tion of Section 8(a)(3) of the Act can exist whether the raise
was more or less than the amount that normally would
have been given. However, there is no need to consider
whether Respondent violated Section 8(a)(3) of the Act by
granting a larger increase than it normally would have giv-
en. The only 8(a)(3) allegation in the complaint is that Re-
spondent granted too small an increase. The 8(a)(5) viola-
tion found above will fully remedy any violation related to
the grant of too large an increase. In no event would Re-
spondent be ordered to rescind the increase. The 8(a)(3)
issue raised by the complaint turns on whether or not Re-
spondent gave employees a smaller raise on September 5
than they would have received if the Union was not in the
picture. In the course of the hearing the General Counsel
introduced into evidence voluminous records showing pay
raises received by Respondent's employees in 1974, 1975,.
1976, and 1977. The General Counsel argues that a com-
parison of the raises for the service and maintenance em-
ployees with the raises for other employees indicates that
the service and maintenance employees would have re-
ceived more than 5 percent in 1977, but for the union activ-
ity. Respondent argues that it used its normal, nonunion-
related criteria in deciding which category within the ser-
vice and maintenance employees would receive the highest
Vrhoigh there are certain exceptions to this rule. the! aire not applicable
in the rilant cse See ( te I ..hoiatoric, . , 221 N RB 161 ( 1975).
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raise, that it granted that amount to all employees in that
unit, and that none of those employees would have re-
ceived a greater increase if the Union had not been in the
picture.
The documents received in evidence relating to wage in-
creases contained the raw wage data of Respondent's pres-
ent and past employees. In his brief the General Counsel
organized the voluminous data into categories of employ-
ees and converted dollar increases into percentage
amounts. The brief points out that the number of increases
varies from employee to employee and goes on to state:
Thus in 1974, general aides and custodians received
approximately 5 increases, dietary, housekeeping
and linen aide employees received approximately 8%.,
LVN's-5.6',, nurses' aides and orderlies 8.4%, ward
clerks 5.1%, RN's 7.7(% and office clerical employ-
ees---5.8'. In 1975 and 1976, the wage raises seemed
to be approximately 5, for all of the above classifica-
tions.'
In 1977 the service and maintenance unit employees
received a flat, uniform wage increase of 5%.' The
RN's received no uniform increase, but their increases
generally ranged from between 8 and I 1%. The busi-
ness office employees received no uniform raise, but
received between 7 and 12% increases. Only 5 employ-
ees employed by Respondent, who are not in the ser-
vice and maintenance unit, received wage increases of
5% or less. Every other employee (approximately 50)
received increases in excess of 5.7%, and most received
increases in excess of 7%. (43 employees). Respondent
clearly treated service and maintenance employees
differently from the other employees, and gave the
other employees higher wage increases.
. . . in 1975 and 1976, all employees received raises in
the same approximate percentage range.
4 hese figures are er? rough and are based on , t sinple can of
the figures In Appendixes B and ( .
The figures sho Ithat out of approximalely 72 unit c erplo ee, i1
1977. onls h received an increase other han a flat 5 percent. his is
significantly less than the desiaton i increases given in 1974. 1975.
and 1976.
The General Counsel's analysis is not fully exact or com-
plete. However, the company records do appear to indicate
that in 1974 there was a wide variation in pay raises given
to employees in 1975 and 1976 the bulk of employees re-
ceived raises of about 5 percent, and in 1977 most of the
employees in the service and maintenance unit received a
smaller percentage raise than most of the other employees.
Respondent contends that some of the service and main-
tenance employees received more, but none less, than they
would have if the Union had not been in the picture. Its
evidence to that effect must be considered.
Respondent's administrator, J. Michael Barry, formu-
lates Respondent's wage policies. When he became admin-
istrator in 1974, the hospital was running at a loss and he
was told by Respondent's governing board that they were
thinking of closing the hospital unless he could turn it
around. He did manage to eliminate the loss.
Barry testified in detail concerning the criteria he used in
deciding on wage increases. The following paragraphs
summarize that testimony.
Barry used the same procedure in 1977 to evaluate the
need for pay raises that he did in prior years. Each fall he
grants a wage increase. That wage increase is discretionary
on his part as to amount and as to who gets the raise. At
times certain employees do not receive any wage increases
for a variety of reasons, such as poor work performance or
a lack of professional certification for the work that they
perform.
During the summer of 1977 Barry contacted a number of
other hospitals in the area in order to formulate a salary
survey. He spoke to the administrators of each of those
hospitals and compared different categories of employees.
His general intention was to keep Respondent's salary
scale in the middle range of wages paid by other hospitals.
Barry compiled a detailed wage survey indicating the wage
rates paid at the neighboring hospitals. On that survey he
showed the number of hospitals that paid more to employ-
ees in particular categories and the number of hospitals
that paid less. The list shows that for LVN's (licensed voca-
tional nurses) there were 10 that paid more and 10 that
paid less; for aides, 15 more and 7 less: for x-ray techni-
cians, 10 more and 10 less; for RT's (respiratory thera-
pists), 5 more and 7 less: for housekeeping employees, two
categories, with 16 more and 6 less in one and 9 more and
II less in the other; for dietary employees, 7 more and 15
less; for cooks, 13 more and 7 less: for medical records
employees, two categories, with 10 more and 6 less in one,
and 7 more and 5 less in the other; for medical technolo-
gists, 10 more and 5 less: for RN's (registered nurses) with-
out experience, little data: and for RN's with experience 7
more and 11 less: for business office employees, three cate-
gories, with 6 more and 5 less in one category, little data in
another category, and 10 more and 8 less in the third cate-
gory.
Barry then took each category of employees and consid-
ered the following items:
Criteria used for determining salary ranges:
1. Competition
A. How hard is it to get replacements when one
terminates
B. How long does it take to get a replacement
C. How many employees in a certain job category
have left to go to work at another place in a similar
position
D. How many people have left other hospitals to
come here to take a job
2. Changes in the job requirements
A. When additional responsibilities are assumed
B. When the job is changed to require more experi-
ence or a higher level of expertise
C. When changes are made in the area that might
cause our people to start to look around
On a scale of 1-10 with I being the easiest job to fill
I. Dietary Housekeeping-Aides. Med. Rec.
Clerks
ST. ELIZABETH COMMUNITY HOSPITAL 943
2. Janitors. (Hskg. 2)
3. R.T.
4. L.V.N.
5. X-Ray
6. Business Office, Patient Rep. (Billers)
7. Computer Operators
8. Social Workers
9. R.N.'s
10. Medical Technologists
Barry started with the medical technologists. He had
been running ads throughout the State for medical technol-
ogists and was having difficulty obtaining them. Because it
was hard to find replacements, he decided to put a maxi-
mum amount of money toward their salaries in order to
attract them.
He next considered the RNs. He had also run ads for
RNs and had difficulty recruiting them. However, he gave
the RNs a lower priority for raises than he gave the medi-
cal technologists because Respondent employed more RNs
than technologists, so if the hospital was one short, he
could more easily cover for the shortage. He considered the
length of time it took to replace RNs and decided to make
their salary range attractive so that he could hire them. The
hospital had hired inexperienced RNs who were enticed
away by other hospitals when the RNs obtained more ex-
perience. Because of that, he added a new category of inex-
perienced RNs.
The next category he considered was that of social work-
er. The hospital had only one social worker, and that one
was on a part-time basis. Most hospitals in the area do not
have a social worker, and it would be difficult to, replace
her. The social worker had insisted on working on a full-
time basis, so he hired her full time and tried to keep her
pay scale up.
The next category was computer operator. Another hos-
pital in the area had been attempting to pirate his com-
puter operators because few people were experienced to
run the type of computers the hospitals had. Barry decided
to raise the computer operators' pay significantly.
The next category was business office. One of the other
hospitals had pirated his best business office clerk and in-
creased her salary. He raised the pay of employees in that
category so that others would not be pirated.
The next category was X-ray technician. The hospital
had not had problems in obtaining X-ray technicians, but
it employed only four of them, and one of those four had
to be on call for evening and night shift. If one of the X-ray
technicians were to leave, it would put a heavy burden on
the others, and Barry was concerned with how long it
would take to get a replacement. He raised the pay scale of
the X-ray technicians to be able to recruit and keep them.
The next category was LVNs. The hospital had not had
a problem obtaining LVNs, and it employs a number of
them, so if one terminates, it is not difficult to cover for the
one that has been lost. However. Barry was trying to up-
grade the quality of the staff by hiring more I.VNs and he
formulated a raise which would enable him to recruit them.
The next category was respiratory therapists. Respon-
dent pays more for respiratory therapists than do most of
the other hospitals in the area. It pays the same rate to
them as it pays to X-ray technicians, while most of the
other hospitals pas a lower rate. The hospital has had no
problem in obtaining respiratory therapists. In addition, if
a respiratory therapist leaves, the work can be performed
by an outside contractor who is available in a matter of
hours. Using his salary criteria, he decided that he should
not give them any raise.
I'he next category was janitors. The hospital had not had
an? trouble obtaining janitors, and Barry thought that their
pay was already good. However, there were only a few
janitors. so if one terminated, it would take some time to
get another. He decided to give them a small increase.
The last categor s was dietary employees, housekeepers.
aides, and medical records clerks. Those people were hired
with no experience and were trained by the hospital. There
is a waiting list for people in those job categories, and if
one of them leaves, he can be replaced in a day.
After evaluating all the criteria and considerations men-
tioned above, Barry decided on the amount of increase for
each of the categories. The X-ray technicians were the ca-
tegory within the service and maintenance unit that would
receive the highest raise. Barry was concerned, however.
because one of the respiratory therapists was a union ob-
server at the election, and he thought she might say that he
was taking reprisals against her. He spoke to counsel and
decided to convert the amount of raise he was giving to the
X-ray technicians to a percentage basis and to give that
percent increase to all of the employees in the service and
maintenance unit. The increase was 5 percent. None of the
employees in that unit other than the X-ray technicians
would have received that much if Respondent's ordinary
criteria had been applied.'
Barry testified as is indicated above. He was an extreme-
ly believable witness, and his demeanor was such as to
inspire confidence in his veracity. I credit him. The Gener-
al Counsel has shown that the employees in the service and
maintenance unit received less of a percent increase in Sep-
tember 1977 than most of the employees outside of that
unit. However. Barry's credible testimony, establishes that
the service and maintenance employees were not granted a
smaller raise than they would have received if the Union
had not been in the picture. I shall therefore recommend
that the 8(a)(3) allegation of the complaint be dismissed.
I IIlE L FFFE(T O I I NAIR I BOR PRA( I(FS I PON
COMMELR(
The activities of Respondent set forth in section III.
above. occurring in connection with the operations of Re-
spondent described in section 1, above. have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
' [he milltires of Reponldetlnl Ilnurli cr icc .ill ilir.iiic - unle l
cdled Scptleiher I 1 77'. tl
\I Blirir icported Ihil . s..iAls Illtrc 'nIl il.I1 he i Ilxc I ill e lfele oni
Scpt 5ih. 1'17 Ih 3 uit certified bh the NI RB alil rccee raises
hai cd ii recenit ,dlrxltlx oil it perAcltage h}).ls 1he Scrxlcc &
l111ai n.telilc it I ll1 rceXie A straight '; Iireielilcn
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices. I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
it will effectuate the policies of the Act to assert jurisdic-
tion.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following unit is appropriate for the purposes of
collective bargaining:
Included: All full-time and regular part-time service
and maintenance employees including LVN's, nurses'
aides, ward clerks, departmental clerks and secre-
taries, X-ray technicians, respiratory therapy techni-
cians, orderlies, EEG technicians, EKG technicians,
OB technicians, lab assistants/aides, surgical techni-
cians, housekeeping employees, central supply em-
ployees, dietary employees, maintenance employees,
medical record clerks and transcriptionists.
Excluded: All other employees, guards, confidential
employees and supervisors as defined in the Act.
4. The Union is the Board-certified, exclusive collective-
bargaining representative of the employees in the above-
described unit.
5. On September 5, 1977, during the pendency of objec-
tions and challenges to an election that later resulted in
certification, Respondent violated Section 8(a)(5) and (1)
of the Act by granting a unilateral wage increase to em-
ployees in the above-described unit without having noti-
fied, consulted, or bargained with the Union.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. Except as is set forth above, the General Counsel has
not established by a preponderance of the credible evi-
dence that Respondent violated the Act as alleged in the
complaint.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER
Respondent, St. Elizabeth Community Hospital, Red
Bluff, California, its officers, agents. successors, and as-
signs, shall:
1. Cease and desist from:
(a) Granting unilateral wage increases to employees in
the bargaining unit set forth below without notifying, con-
sulting with, and bargaining with Hospital and Institution-
al Workers Union Local 250, SEIU, AFL CIO.' 2 The bar-
gaining unit is:
Included: All full-time and regular part-time service
and maintenance employees including LVN's, nurses'
aides, ward clerks, departmental clerks and secre-
taries, X-ray technicians, respiratory therapy techni-
cians, orderlies, EEG technicians, EKG technicians,
OB technicians, lab assistants/aides, surgical techni-
cians, housekeeping employees, central supply em-
ployees, dietary employees, maintenance employees,
medical records clerks and transcriptionists.
Excluded: All other employees, guards, confidential
employees and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Post at its Red Bluff, California, facility copies of the
attached notice marked "Appendix." 13 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 20, after being duly signed by its authorized represen-
tative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by it to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT I FURTHER ORDERED that those allegations in the com-
plaint as to which no violations have been found are
hereby dismissed.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusiion,. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted b the Board and become
its findings, conclusions, and Order. and all objections thereto shall be
deemed %saived for all purposes.
i tolhling is this Order is to he construed as requiring or permitting S.
.lizaheth (Communit) Hospital to withdraw or rescind any wage increase
that has been granted.
In the event that this Order is enforced bh a judgment of a United
States ('ourt of Appeals, the words in the notice reading "Posted b 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
Natiinal labor Relatiions Board."