NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
May 29, 2009
By Chairman Liebman and Member Schaumber
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On March 14, 2008, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief; the General Counsel and the Charging Party filed answering briefs. The General Counsel also filed a limited cross-exception, and the Respondent filed a reply.
On December 9, 2008, the National Labor Relations Board remanded the case to the judge for further consideration of his finding that the Respondent violated Section 8(a)(1) when it held a meeting on October 18, 2006 to announce the implementation of the shared governance concept.[1] On December 29, 2008, Judge Rosenstein issued the attached supplemental decision. The Respondent filed exceptions, a supporting brief, and a reply brief; the General Counsel filed an answering brief.
The National Labor Relations Board[2] has considered the decision, the supplemental decision, and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings,[3] and conclusions, as modified herein, and to adopt his recommended Order as modified and set forth in full below; we further find that the election must be set aside and a new election held.
We adopt the judge’s findings that the Respondent violated Section 8(a)(1) by directing representatives of the Union to retrieve their vehicles from its parking garage and to leave the parking garage, and promising employees improved terms and conditions of employment through a “shared governance” initiative in order to discourage employees from selecting the Union as their collective-bargaining representative. Based on our findings regarding these two unfair labor practices, we further adopt the judge’s recommendation to set aside the election results.[4]
As explained below, we reverse the judge’s finding that the Respondent violated Section 8(a)(1) by hiring Keith Peraino,[5] a former union organizer, and assigning him to campaign against the Union without providing assurances to employees that Peraino’s knowledge regarding their union activities would not be used against them.
i. facts
The Respondent is a 600-hundred bed, acute care hospital. The
ii. discussion
Contrary to the judge, we conclude that extant Board law
does not establish that the Respondent had an affirmative duty to provide assurances
to its employees regarding the hiring of Peraino, and that its failure to do so
violated Section 8(a)(1). The gravamen
of the complaint is neither that it was unlawful for the Respondent to hire
Peraino (or for Peraino to accept such employment), nor that it was unlawful
for the Respondent to assign him to campaign against the
Recognizing the absence of any direct precedential support
for this view, the judge cited two Board decisions, which he described as “instructive.” However, the judge’s reliance on
In the absence of applicable authority, we decline at this time to hold that Section 8(a)(1) imposes the affirmative notice obligations identified by the judge. Accordingly, we dismiss this allegation.[7]
ORDER[8]
The Respondent,
1. Cease and desist
from
(a) Directing representatives of the
(b) Promising employees improved terms and conditions of
employment through a “shared governance” initiative, in order to discourage
employees from selecting the
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following
affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
facility in Toms River, New Jersey, copies of the attached notice marked “Appendix.”[9] 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 and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since August 30, 2006.
(b) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible official on a form
provided by the Region attesting to the steps that the Respondent has taken to
comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the
employees in the unit found appropriate, whenever the Regional Director deems
appropriate. The Regional Director shall direct and supervise the election,
subject to the Board’s Rules and Regulations.
Eligible to vote are those employed during the payroll period ending immediately
before the date of the Notice of Second Election, including employees who did
not work during the period because they were ill, on vacation, or temporarily
laid off. Also eligible are employees
engaged in an economic strike that began less than 12 months before the date of
the election directed herein and who retained their employee status during the
eligibility period and their replacements.
To ensure that all eligible voters have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their addresses
that may be used to communicate with them.
Dated,
Wilma
B. Liebman,
Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not direct representatives of the New York State Nurses Association (NYSNA) to retrieve their vehicles from our parking garage and to leave the parking garage in order to interfere with their organizational activities.
We will not promise you improved terms and conditions of employment through a “shared governance” initiative in order to discourage you from selecting NYSNA or any other labor organization as your collective-bargaining representative.
We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the Act.
Randy M. Girer, Esq., for the General Counsel.
Francis A. Mastro, Esq. and Maurice J. Nelligan Jr., Esq., of
Hope A. Pordy, Esq., of
DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on August 13 through 15, 2007,1 October 1 through 4, October 22 through 25, November 13 through 15 and December 3, in Philadelphia, Pennsylvania, pursuant to a complaint and notice of hearing (the complaint), issued by the Regional Director for Region 4 of the National Labor Relations Board (the Board). In addition, Region 4 ordered consolidated certain issues arising from the representation election in Case 4–RC–21199.2 The complaint, based upon charges filed in Cases 4-CA–34888 and 35025 by New York State Nurses Association (the Charging Party or Union) alleges that Community Medical Center (the Respondent or Employer) has engaged in certain violations of Section 8(a)(1) of the National Labor Relations Act (the Act).
The Regional Director for Region 4 ordered the consolidation of the above cases for hearing before an administrative law judge. The Respondent filed a timely answer to the complaint denying that it had committed any violations of the Act.
Issues
The complaint alleges 8(a)(1) allegations of the Act in that the Respondent directed representatives of the Union to retrieve their vehicles from its parking garage while permitting other persons and entities to park in the garage, coerced an employee by telling the employee that it would put tape on the employee’s mouth to discourage her from engaging in union activity, promised improved terms and conditions of employment to employees to discourage them from selecting the Union as their collective-bargaining representative, and failed to notify employees that the Respondent hired a former union organizer without providing assurances that any information received from the former union organizer would not be used against the employees.
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, Charging Party and the Respondent, I make the following
Findings of Fact
i. jurisdiction
The Respondent is a corporation engaged in the operation
of an acute-care hospital in Toms River, New Jersey, where it annually derived
gross revenues in excess of $250,000 and purchased and received goods valued in
excess of $50,000 directly from points outside the State of
ii. alleged unfair labor practices
A. Background
The Employer’s facility consists of a 600 bed acute care hospital along with numerous buildings and various other departments staffed by approximately 800 registered nurses. The highest ranking manager at the hospital is Executive Director Mark Pilla. The Employer’s operation is divided into eight divisions, each run by a vice president who reports to Pilla.
The majority of the registered nurses in the petitioned for unit are assigned to the Patient Care Services Division, that was headed by Vice President Lauren Burke during the critical period. Five administrative directors report to Burke. Beneath the administrative directors are 27 directors and 54 assistant directors who supervise the units.
Included in the Employer’s facility, just inside the main entrance, is a 24-hour coffee shop that is open to the general public. The coffee shop has an L shape. Along the other wall there are several tables that line a long horizontal window that extends the length of the coffee shop, and overlooks an access road and a courtyard. Customers who are seated in booths next to the window have an unobstructed view across the courtyard to hallway one West. Likewise, individuals who are standing in hallway one West can view and identify individuals who are sitting in the booths along the window.
The Petitioner commenced its first organizing campaign in
2004–2005 but it proved unsuccessful.
The
In both Union organizing campaigns, a number of the registered
nurses served on the organizing committee and met on a weekly basis. Normally, after working their
The Employer hired outside consultants to oppose the
B. The 8(a)(1) Violations in Complaint 4-CA-34888
1. Allegations concerning the parking garage
The General Counsel alleges in paragraph 5 of the complaint that on August 30 and 31, 2006, the Respondent directed Union representatives to retrieve their vehicles from its parking garage and to leave the garage despite the fact that it permitted other persons and entities, including Wachovia Securities, to park in the garage, that prior to August 30, 2006, it had permitted Union representatives who were entering the coffee shop in the Hospital to park in the garage, and it also took the action because the Union began a new attempt to organize certain of Respondent’s employees.
a. Facts
During the first organizing campaign, union organizers
parked their vehicles in the Employer’s visitors’ garage and at a strip mall
across from the Hospital without incident.
There were no agreements either oral or in writing that restricted the union
organizers from parking in the garage and no
On August 30, 2006, after distributing campaign flyers to
organizing committee members, Ruiz went to the coffee shop as was her normal
practice. In early afternoon, a security
guard approached Ruiz and asked if she was with the
On August 31, 2006, the employee union organizers distributed flyers at the Hospital and then a number of them including Linda Gural joined Ruiz and Conklin in the coffee shop.
Gural saw Rosen through the coffee shop window walking with two security guards in the direction of the visitors parking garage. Shortly thereafter, Rosen reappeared in the window as she walked toward the Hospital entrance accompanied by the two guards. One of the guards entered the coffee shop and approached the Union booth. He asked, “If we were the Union people”. The guard then asked if anyone was driving a white Solara. Conklin identified the Solara as her car. The guard then informed Conklin that she was not allowed to park in the garage anymore and if the car was not removed, it would be towed. Conklin said that other individuals park in the garage and that this was disparate treatment. The guard replied that he had been instructed to tell the union organizers to move their cars, and if they did not, then they would be towed. After further discussion, Conklin complied and removed her car from the parking garage. The interchange between the guard and the union organizers was observed by nurses who were also in the coffee shop and at the next Union organizing meeting Ruiz informed all those in attendance what had occurred regarding herself and Conklin.
Gelormini testified that Assistant Director of Security Tom Moore informed him on August 30, 2006, that the union organizers were parking in the visitors parking garage. In addition, on the same day, Rosen also told him that union organizers were parking in the garage.
Gelormini noted that the garage has a capacity for approximately
400 cars and the first floor and lower level is reserved for physicians. In addition, the garage is available for use
by patients, visitors, and vendors who have business at the Hospital. During the month of August 2006, the garage
was undergoing renovations and during the construction process approximately
100 parking spaces were cordoned off and not available for parking. Gelormini testified that since he assumed his
position in 1999, he has never asked anyone to remove their car from the
visitors parking garage other then on
Director of Security Anthony Plinio testified that between March and June 2006, he stationed a guard at the visitors parking garage on a regular basis to insure that proper individuals entered the garage.6 He also noted that while there was an informal agreement in the first election campaign that the union organizers would park in the strip mall across the street from the Hospital, there was no such agreement for the second election campaign. He further confirmed that there are no written rules or signs posted in the garage or inside the Hospital that prohibit visitors who are using the coffee shop or the ATM machine inside the Hospital from parking in the garage.
b. Discussion
The General Counsel first argues that the Respondent directed the Union organizer’s vehicles be removed from the parking garage, notwithstanding that it permitted other entities, including Wachovia Securities, to park in the garage.
The evidence discloses that the Respondent has a primary business relationship with Wachovia Bank that generates yearly fees paid by the Employer to the Bank in excess of one million dollars. Accordingly, and in consideration of this business relationship, the Bank has provided employees of Saint Barnabas Health Care System the right to maintain a payroll direct deposit account with numerous benefits not provided to the general public (GC Exh. 62). While the Respondent does not pay Wachovia directly for this benefit, it is obvious that these accounts would not be made available to its employees absent the Respondent’s long standing business relationship and the substantial fees that the Bank generates.
Human Resources Manager Mariann Pouso testified that the Bank has been provided the opportunity to have a table set up outside the Hospital cafeteria on a monthly basis but she is unaware of the location where the Bank representatives park their cars. Pouso also testified that representatives of Wachovia Securities have been permitted to set up tables at the Hospital on five or six occasions since 2005 to attend benefit fairs and luncheons for the purpose of introducing its numerous financial products to employees. Pouso is not aware of the location that the Wachovia Securities representative’s have parked their cars after December 2006, the time that Human Resources moved into the main facility. Prior to that time, representatives of Wachovia Bank and Securities parked their cars in the Riverwood II garage, a leased building on the Employer campus where Hospital and private doctor offices are located and the Human Resources department was previously housed. Pouso also noted that representatives of Hyatt Legal Services and Wellquest (fitness discount under the Employer’s health plan) have attended the yearly benefit fair held in the Hospital auditorium but the Employer pays no fees directly to them and she has no knowledge where the representatives park. Pouso further testified that representatives of telephone companies have not been at the facility since sometime in 2003.
Based on the forgoing, I conclude that the General Counsel has not presented conclusive evidence to sustain the first part of there argument particularly noting that they have not established that representatives of the above companies parked in the visitors garage.7 Moreover, as it concerns Wachovia Bank and Securities, even if the General Counsel had been able to establish that they parked in the garage when visiting the facility, I find that special circumstances exist that would have privileged there parking in the garage. In this regard, while the Respondent does not pay directly for there services, the emoluments provided to its employees would not have otherwise occurred but for the large fees generated from the business relationship. In these circumstances, I find that the Bank falls within the exception for nonemployee solicitations related to employees’ benefits. Likewise, I do not find that the limited number of times that Hyatt Legal Services, Wellquest or other entities might have parked in the garage when compared to the almost weekly use by the uion organizers gives rise to disparate treatment. Therefore, I reject the General Counsel’s argument that the union organizers were directed to remove their vehicles from the garage based on disparate treatment when compared to other entities. See, Lucile Salter Packard Children’s Hospital v. NLRB, 97 F.3d 583, 587–589 (D.C. Cir. 1996) (“no violation of section 8(a)(1) occurs if the solicitations approved by the employer relate to the employer’s business functions and purposes,” including informational solicitations relating to benefits that are part of employees’ regular benefit package).
With respect to the General Counsel’s position that union
organizers have parked in the garage on numerous occasions when visiting the
coffee shop prior to August 30, 2006, and because the
The record discloses that Union Organizers Ruiz and Conklin
parked in the visitors parking garage continually between March and August
2006, when visiting the coffee shop. Indeed,
when the security guard was posted in the garage from March to June 2006, he
would waive and say hello to Ruiz as she entered the parking facility and no
attempt was made to prohibit her from parking in the garage.8 While the Respondent opines that the union
organizers were directed to remove their cars from the garage because they were
not visitors to the Hospital and due to ongoing construction during the month
of August 2006 that limited the number of parking spaces available for physicians,
patients and visitors, that argument does not withstand scrutiny. In this regard, even during the construction
period, the union organizers were parking in the garage without incident and
the Respondent introduced no evidence that visitors to the parking garage were
turned away for lack of parking spaces.
Second, at no time prior to the directive to remove their vehicles, did
the Respondent enter into any discussions with the union organizers to find
other alternatives to there perceived parking shortfall or rationale for
excluding them from parking in the garage.
Third, the Respondent has no rules or policies against individuals
parking in the garage when visiting the coffee shop or the ATM machine inside
the Hospital. Likewise, the Respondent
admits that no signs are posted in the garage, in the coffee shop or inside the
Hospital that prohibits visitors to the coffee shop from parking in the
garage. Fourth, Gelormini admitted that
since he assumed his position in 1999, he has never asked anyone to remove
their car from the garage other then on
I also note that it was more then a coincidence that the union organizers were directed to remove their vehicles on the same date that the representation petition was filed and a flyer announcing the event was widely distributed at the Hospital (GC Exh. 73). Moreover, the date that this occurred was also the first time that Ruiz observed Peraino at the facility and he was intimately familiar with the type of cars that Ruiz and Conklin drove. Additionally, Gelormini testified that Rosen informed him on August 30, 2006, that the union organizers were parking in the garage and on the following day, Rosen was seen in conversation with the guards heading in the direction of the parking garage and then returning to the main entrance with the guards. It was shortly thereafter that one of the security guards went into the coffee shop and inquired if Ruiz and Conklin were the Union people and who was the driver of a white Solara. Lastly, as Conklin left the coffee shop to remove her vehicle from the garage, she observed Rosen sitting in a security vehicle in front of the Hospital.
For all of the above reasons, and particularly noting the events that occurred on August 30 and 31, 2006 involving Gelormini, Rosen, Peraino, and the security guards all of whom are agents of the Employer (see discussion below), I find that the Respondent engaged in conduct violative of Section 8(a)(1) of the Act when it directed Ruiz and Conklin to remove their cars from the parking garage.
C. The 8(a)(1) Violations in Complaint 4–CA–35025
1. Allegations concerning Keith Peraino
The General Counsel alleges in paragraph 5 of the complaint that at the end of August 2006, a more precise date being unknown to the General Counsel, Respondent hired Peraino and assigned him to its campaign in response to the Union without providing assurances to employees that Peraino’s knowledge of who supported the Union would not be used against them. On November 15, during the course of the hearing, the General Counsel amended the complaint to now state that Peraino was hired on or about July 19, 2006 (GC Exh. 1 (pp).9
a. Facts
Peraino commenced working for the
Peraino interviewed for a job with the Employer in or
around June 200610[10]
and was formally offered a position as a labor relations consultant with the
Saint Barnabas Health Care System on
Peraino admitted that after he commenced employment with
the Employer that he was actively involved in the training of management
representatives in what they could do and say during the election campaign and
along with Rosen participated in meetings to encourage employees not to select
the Union as their bargaining representative.
He also acknowledged preparing handouts and campaign literature that
urged employees not to select the Union as their collective bargaining
representative and was actively engaged along with Rosen in convincing employees
to embrace the concept of Shared Governance instead of the
a. Discussion
In addressing this allegation, I note that the Respondent argues that any actions undertaken by Peraino prior to his employment in August 2006 cannot be attributed to them and is barred by Section 10(b) of the Act.
The evidence discloses that Peraino withheld critical information
from the
The seminal question presented is whether Peraino was aligned with the Employer, and acted in their interest, while engaged in union-related activities or discussions with employees.
In my opinion, an employer may not take advantage of actions
carried on in its behalf by not informing its employees that any information in
its possession concerning activities on behalf of the
Based on the forgoing, and particularly noting that the Employer
has admitted it never provided assurances to employees that Peraino’s knowledge
and support of the
1. Allegations concerning Susan Rosen
The General Counsel initially alleged in paragraph 6 of
the complaint that on or about September 25, 2006, Respondent by Susan Rosen,
near the Admissions office at the
a. Facts
Teresa Wiencke is a nurse in the Operating Room and is a
member of the
On September 25, 2006, Wiencke was walking on the first floor from the Operating Room toward the administration office to get patient labels. As she was passing through the reception area she saw Rosen and Peraino, exiting the administration office. As they approached each other, Rosen called Wiencke’s name and threw her arms up and embraced her. According to Rosen, Wiencke initiated the greeting and gave her a hug and a kiss on the cheek.
Wiencke obtained the labels from the administration office
and started walking back to the operating room.
She again met Rosen and Peraino in the hallway leading to the operating
room. They slowed down to wait for
Wiencke to catch up and as she walked, Rosen and Peraino walked beside her. Rosen took Wiencke’s left arm in a two-armed
grip, and walked closely next to her.
Peraino walked alongside on Wiencke’s right but never touched her. Rosen asked Wiencke what is going on. Wiencke said that she was afraid. They said why. Wiencke said, because I’m afraid that you are
going to take me into the men’s room and beat the crap out of me. They both laughed and said no. Rosen said, “We’re just going to put tape on
your mouth.” According to Rosen, Wiencke
caught up with them in the hallway and linked arms with Peraino and Rosen and
said, now that I am in the middle of you both, what are you going to do to
me? Rosen replied, I don’t know, should
we duck tape your mouth. As they
approached the operating room, Wiencke asked what they were up to, and Rosen
stated “We are busting
a. Discussion
On September 27, 2006, Wiencke prepared a written statement summarizing what occurred when she met Rosen and Peraino in the hallway on the way back to the Operating Room (GC Exh. 96). This statement conflicts with her testimony in several areas. For example, Wiencke never states that she felt threatened or that she was placed in harms way as a result of the confrontation. Rather, Wiencke explains that when she told Rosen and Peraino that she was “afraid” the statement was made because she did not want to make a scene or pull away because it could have caused Rosen to fall due to her wearing high heals. Moreover, when Wiencke stated that Rosen and Peraino would take her into the men’s room and beat the crap out of her, they both answered, “no”. Wiencke concluded her statement by indicating that the whole confrontation might have taken 20 seconds and while she felt uncomfortable, she did not chastise their unnecessary closeness because she was embarrassed. Moreover, Wiencke admitted that she did not report the incident to her supervisor on the day it occurred, never filed an incident or police report and did not report the matter to security at the Hospital. Rather, Wiencke admitted that she went back to work and completed her shift. While Wiencke testified that on the day of the incident she told some of her co-workers in the operating room what had occurred to help her determine if she was threatened, her statement given on September 27, 2006, does not mention or specifically state that she was coerced in any manner or threatened with physical harm.14 As it concerns the statement made by Rosen that we’re just going to put tape on your mouth, Wiencke acknowledged that she did not observe any tape in their hands and did not think they would actually do that. Rather, Wiencke interrupted the comment to mean that they wanted her to keep quiet. In regard to Rosen’s statement about busting Unions, I do not subscribe a coercive motive but rather would characterize it as a flippant comment made during the moment in response to a question raised by Wiencke.
Therefore, based on the September 27, 2006 statement that was prepared shortly after the events in question, and particularly noting that Wiencke did not mention that she felt threatened or coerced but characterized her feelings as being embarrassed, I do not find that the General Counsel has sustained this allegation of the complaint. While the actions of Rosen and Peraino could be characterized as unprofessional, and indeed Pilla apologized to Wiencke in a meeting held on October 11, 2006, they do not raise to the level of Section 8(a)(1) conduct under the Act. Therefore, I recommend that the allegations in paragraph 6 of the complaint be dismissed.
1. Allegations concerning surveillance
The General Counsel alleges in paragraph 7 of the complaint that on or about October 3, 2006, Respondent by Christopher O’Connor, or by security guards whose names are unknown to the General Counsel, followed and surveilled an off-duty employee who was distributing Union water bottles to non-patient care lounges at the Medical Center notwithstanding that off-duty employees previously had been given access to the lounges. At the commencement of the hearing on December 3, the Charging Party moved to withdrew this allegation due to the unavailability of its witness who would have testified concerning this allegation. Since none of the parties objected to the motion, I approved on the record the withdrawal of paragraph 7 of the complaint. Accordingly, I have not made a finding concerning these allegations.
1. Allegations concerning Lauren Burke
The General Counsel alleges in paragraph 8 of the complaint that on or about October 18, 2006, Respondent, by Vice President Lauren Burke, at a meeting with employees at the Medical Center, by introducing and describing a shared governance concept, promised its employees improved terms and conditions of employment in order to discourage them from selecting the Union as their collective-bargaining representative.
a. Facts
In June or July 2006, according to Ruiz, Merlin, Wiencke, and Regina Smith15, Peraino informed employee union organizers at a meeting held at the Quality Inn Hotel that the only way the Hospital could counter Union activity was by the introduction of Shared Governance. It was a way of organizing without having a union because the nurses would have a greater say in their working conditions.
Shared Governance is a concept wherein registered nurses are able to work alongside management to develop better working conditions and practices to ultimately improve patient care. In its simplest form, it is shared decision-making based on the principles of partnership, equity, accountability, and ownership at the point of service. This management process model empowers all members of the healthcare workforce to have a voice in decision-making (GC Exhs. 31, 53, 54 and 84). In addition, according to Burke, the concept would enable nurses to do some self scheduling and help staff the department the way they felt was best.
Commencing in July 2006, Burke and Rosen started meeting with individual employee Union organizing committee members to propose the concept of Shared Governance and to encourage them to act as liaisons from their respective units.
As discussed earlier in the Decision, Peraino telephoned Hucker and Gural in August 2006, to inform them that he along with Rosen would be working on Shared Governance and that Vice President of Nursing for Saint Barnabas Health Care System Nancy Holecek wanted it to work and be implemented.
In July 2006, Rosen came to the intensive care Unit with the Director of the Critical Care Unit Judy Boccellato who introduced Gural to Rosen. Thereafter, Rosen met with Gural in the conference room during duty time and after informing her that she was very influential with the nurses at the Hospital due to her expected elevation to the Presidency of the New Jersey State Nurses Association16, advocated the concept of Shared Governance stating that it would be a better way to go than unionizing.
In September 2006, Wiencke was called into a meeting with Rosen and Burke and was solicited to become a member of the Shared Governance committee. Wiencke said that she was not interested since it was a conflict of interest with her Union organizing responsibilities.
In September 2006, Rosen and Burke met privately with Hucker. This meeting occurred after she encountered Peraino in the lobby of the Hospital and he told her that the Shared Governance concept would be a good instrument for nurses. He further informed Hucker that Holecek wanted it to work and the Union was not all it was cracked up to be.
Rosen informed Hucker during the hour long meeting held on
duty time that Shared Governance would be between the employees and the
administration and that it would give nurses a voice in practice issues and
permit them to raise their concerns.
Rosen and Burke asked Hucker to co-chair the Shared Governance Committee
and act as its corporate liaison. Rosen
told her that Holecek really wanted it to take off and if the
In late September or early October 2006, Burke met with Hucker to discern whether she would accept the position. Hucker told Burke that she had to decline the offer.
Rosen also met with Union Organizing Committee member
Smith on three or four occasions to talk about Shared Governance, stating that
it would be beneficial for the nurses and they would have a voice in patient
care and practices at the Hospital.
Rosen also stated in these conversations that the
On October 18, 2006, the Employer held a registered nurse (RN) lunch and learn meeting to officially communicate the concept of Shared Governance to employees. Prior to that date, the Employer maintained a Professional Practice Council (PPC), as well as other committees, in which nurses took part. The PPC met monthly with Burke serving as its chairperson.
The meeting included patient care directors from the various Units in addition to registered nurses. Burke announced that the Employer was combining the PPC with the Nursing Practice Council and it would be known as the Professional Practice Council.
During the meeting, Burke gave a power point presentation on Shared Governance and at the conclusion of the meeting told nurses that they should ask their co-workers to volunteer for the committee, but if they did not volunteer, then the Unit directors would request employees to serve on the Shared Governance Committee.
Commencing on or about October 18, 2006, the Shared Governance concept was implemented at the Hospital during the critical period.
b. Discussion
Peraino, while still working for the Union, shared his
opinion that the Shared Governance concept could be an impediment to organizing
the nurses and might be a critical element in the Employer’s campaign to oppose
the
During the period while Peraino was still employed with
the Union, the record shows that he made a number of telephone calls to Rosen
either at her home, cell, or work number (GC Exhs. 32 and 34). While the Employer argues that the telephone
calls could have related to the Legal Nurse Consulting business that they
started along with Ruiz, I am quite skeptical of this assertion. In this regard, Peraino testified that since
the business was started in 2005, it was never active, never made any money,
and was ultimately disbanded in December 2006.
Thus, it is reasonable to conclude that the subject matter of these
telephone calls concerned issues surrounding Peraino’s potential employment
with the Respondent, including Rosen’s recommendation to Seligman in June 2006
that he be hired, and discussions about the Shared Governance program/Union campaign. The evidence establishes that once employed
with the Respondent, Peraino contacted a number of bargaining unit committee
members to apprise them that his employment status had changed and he was now
working for the Saint Barnabas Health Care System with the primary goal of
working on special projects including the Shared Governance concept. He routinely met with employees and
specifically informed organizing committee members that the Employer was highly
motivated to implement the concept and it was the way to proceed rather then
having a
Likewise, Rosen was a pivotal and visible figure in
pushing the concept of Shared Governance and often talked to employees with
Burke about the program. She apprised
those who she spoke with that the Shared Governance concept was being touted at
the highest levels of the Employer and was the best way to proceed rather then
having a
It is apparent to me that Peraino’s opinion that the
Shared Governance concept was a tool that could be used to undermine the Union
was one of the centerpieces of the Employer’s campaign to disabuse employees
from selecting the
Since I conclude that Rosen and Peraino were working for and with Burke and Holecek to implement the Shared Governance program, I find that when Burke held the meeting on October 18, 2006, to announce the implementation of the Shared Governance concept, it was with the express purpose of attempting to persuade and discourage the nurses from selecting the Union as their collective-bargaining representative. Under these circumstances, I find that the Employer engaged in conduct violative of Section 8(a)(1) of the Act. See, Audubon Regional Medical Center, 351 NLRB 374, 412 (2000) (employer’s announcement during critical period of focus action team composed of nurses and managers that dealt with staff issues violated Section 8(a)(1) of the Act).
iii. the union objections
Pursuant to a petition filed on August 30, 2006, and a Decision and Direction of Election that issued on December 14, 2006, an election by secret ballot was conducted under the direction and supervision of the Regional Director, Region 4 of the National Labor Relations Board (the Board or NLRB) on January 11, in the following unit of employees.
INCLUDED: All full time, regular part time, and per-diem Registered Nurses, including Charge Nurses, employed by the Employer at the Employer’s Toms River, New Jersey locations.
EXCLUDED: The Administrative Director, Administrator for Nursing Services, Assistant Director, Assistant Director for Patient Care, Coordinator-Home Healthcare, Coordinator-Emergency Department, Directors, Director of Patient Care, Executive Director, Intake RN, Manager-Adult Day Care Program, Vice Presidents, Case managers, Licensed Practical Nurses, Nursing Assistants, service and maintenance employees, technical employees and all other employees, guards, and supervisors as defined in the Act.
The tally of ballots, which was made available to the parties at the conclusion of the election showed the following results:
Approximate number of eligible voters 788
Void ballots 0
Votes cast for Petitioner 316
Votes cast against participating labor organization 407
Valid votes counted 723
Challenged Ballots 9
Valid votes counted plus challenged ballots 732
A majority of the valid votes counted plus challenged ballots have not been cast for the Petitioner/Union.
On January 18, the Petitioner filed timely objections to conduct affecting the results of the election. On March 29, the Regional Director issued an initial Report on Objections and Notice of Hearing.
The Petitioner filed Objections 1 through 5 because it asserted that the Employer engaged in conduct that precluded a fair and impartial election particularly noting that employees were surveilled and followed when they distributed union campaign literature in non-patient care areas. Additionally, the Petitioner asserts that their campaign literature was removed by the Employer, representatives of the Employer created the impression that employees activities were under surveillance and the Employer promised benefits to employees on the day of the election.
Objection 1
The Petitioner submitted evidence to the Regional Director
indicating that on or about January 5, shortly after
a. Facts
Gural is a registered nurse in the intensive care unit and
is also a member of the
Boccellato admitted that on January 5, she asked one of the nurses on the intensive care unit for the access code to the employee lounge, after she learned that her colleague and friend the Director of the unit was unavailable. Boccellato testified that she entered the lounge to use the rest room but did not notice any Union campaign literature. Boccellato denied that she removed any Union literature from the intensive care employee lounge.
On January 5, around
Gural further testified that in late August or early
September 2006, while attempting to distribute flyers in the 5th floor Obstetrics
Unit, she was prevented from distributing the literature by the female guard on
duty who apprised her after contacting the Director that they did not want any
campaign flyers in the Unit. Gural also
testified that around this same time, she along with fellow Union organizer
Merlin, went into the lounge on Unit 3C using the combination that a staff
member had provided and placed flyers in the mailboxes. The Director of Unit 3C, Nancy Jobes, came
into the lounge and then left but later confronted Gural and Merlin about how
they obtained entry into the employee lounge as it was intended for her staff
only. Gural informed Jobes that they had
obtained the access code from one of her staff members. Jobes replied that no one other than her
staff should have the combination and Merlin told Jobes that the next time we
would have a staff member let us in the lounge.
Merlin, who joined Gural in distributing Union campaign literature in
both the Obstetrics Unit and Unit 3C, testified in the same manner as Gural
concerning both incidents.19 Merlin also noted that she distributed and
sold Mary Kay cosmetic products and regularly left her literature in the
employee lounges. She testified that the
literature was never removed by the Employer nor was she ever instructed not to
distribute Mary Kay flyers in the hospital.
Merlin also observed
Employee Geraldine Seal, a registered nurse at the
Employer for over 28 years and presently working in the cardiac rehabilitation
unit, testified that she is a member of the
On January 9, along with registered nurse Sandy Mathis,
Seal distributed Union campaign literature after work hours. Both individuals credibly testified that they
were wearing hospital identification badges attached to their clothing that was
clearly visible. Upon arriving in Unit
3A, Assistant Director Celina Holden, in the presence of other staff members
refused permission for them to place campaign literature in the employee
lounge. Holden also refused to give them
the access code for the employee lounge and stated that she would not allow
them to put literature any where on the unit.
Seal testified that Holden was wearing a “Vote No” button on her uniform. She told Holden that, under those
circumstances, the
According to Reynolds, Gural called security because she observed an individual dressed in all black clothes walking on the intensive care Unit. Reynolds did not observe the guard dressed in dark clothes. Reynolds informed Gural that some of our guards do dress in all black clothes and have been employed by the Hospital since September 2001. Reynolds testified that Gural asked her whether the guards were on the unit to spy on union organizers. Reynolds informed Gural that it was routine for the guards to make there rounds in the Units.
Holden testified that on January 9, two or three individuals that she did not recognize appeared at the nurses’ station in Unit 3A. According to Holden, they were wearing coats and did not display any form of identification. Since the individuals did not establish that they were working and failed to show any hospital identification, Holden refused to provide them the access code to the lounge or to distribute Union campaign literature anywhere on the Unit. Accordingly, Holden requested that the individuals leave the Unit. Holden denied that she was wearing a “Vote No” button on her uniform during the conversation with the unidentified individuals.
Rosen testified that on the evening of January 5, she was having dinner with Burke and her son. Burke received a telephone call that three teenage girls were wandering around the hospital and several paid union organizers were in the halls. Rosen, along with Burke, returned to the Hospital. Rosen went directly to the intensive care unit along with Burke’s son who she wanted as a witness and knocked on the door to the employee lounge because she did not have the access code. Two nurses responded to her knock and Rosen asked the nurses to let her know if they saw any strangers on the Unit. Rosen asserted that she did not enter the employee lounge, did not have anything in her hand other then her purse, and did not remove any Union flyers from the employee lounge. Rosen further testified that she had no contact with Gural on that evening nor did she see or talk with her in the employee lounge.
Jobes testified that the employee lounge on Unit 3C is normally reserved for employees who work in the Unit and for employees who might be assigned to the Unit on a temporary basis. Jobes was informed by some of her staff members that there were people in the back room. Accordingly, Jobes entered the employee lounge and after recognizing Gural asked her how she gained entry. Gural informed Jobes that an employee had previously given her the access code and she wrote it down on a piece of paper. Jobes testified that she made no attempt to remove any Union campaign literature that was placed in the employee lounge that day and during the course of the Union campaign regularly observed that Union literature was left in the Unit 3C lounge without being removed. Jobes informed Gural that she was checking the lounge because a number of her employees were concerned about their personal belongings that were left in the lounge.
Director of Patient Care for Labor and Delivery and Women’s Health (Obstetrics Unit) Louise Archetti testified that the entire fifth floor is secure and locked because of the babies and admission to the floor is gained by key pad access only. Normally there are two or three guards stationed on the floor to screen visitors who come onto the Unit. Archetti testified that there was a female security guard assigned to the Unit on or about August 31, 2006, however, she never was informed that two union organizers sought entry into the Unit to distribute campaign literature in the two employee lounges used by her staff. At no time did Archetti instruct the security personnel to refuse union organizers admission to the employee lounges and on numerous occasions on dates other then August 31, 2006, she observed Union literature that was left in both employee lounges.
Plinio is a retired
police officer who has held his present position for seven years at the Respondent. He supervises a staff of 60 people, 45 of
whom are security officers. Two of these
security officers are retired police officers that he hired. Plinio requires the two retired police
officers to wear dark clothes with a sport jacket that covers a concealed
weapon.20 His regular security officers are
dressed in dark pants and white shirts but are not authorized to carry
weapons. The two retired police officers
are per diem employees that do not enjoy the same terms and conditions of employment
as the regular security officers. They
have been employed at the Respondent since September 2001, and up until the
period before the election mainly worked a 5 p.m. to 1 a. m. shift in and
around the emergency room where they sign-in and sign-out. Plinio decided to increase there presence
during the union election campaign and effective January 1, assigned the two
officers to the day shift, with both of them working the same days. During this period, Plinio instructed them to
make rounds throughout the hospital during the course of their shifts.
Plinio testified on cross examination that in the absence
of two female secretaries that answer the telephone during the day shift, a
security officer is posted in the office to respond to telephone inquiries
during the evening shift on a 24/7 basis.
All of the guards assigned to Plinio’s staff must wear a Hospital ID
badge with a photo picture. The badge
states,
Agency Status of the Security Guards
The Board and the Courts have uniformly held that whether
someone acts as an agent under the Act must be determined by common law
principles of agency. See, e.g. NLRB v. Plasterers & Cement Masons Local
90 (
Applying these principles, I find for the following reasons that the regular Security guards and those dressed in all dark uniforms were agents of the Employer at all material times and particularly during the critical period between August 30, 2006 and January 11.
First, I note that the Security guards dressed in all dark uniforms were hired by Plinio in September 2001, and have been stationed in the emergency room since that time to provide security. Second, Plinio transferred these Security guards to areas of the hospital other then the emergency room and increased there presence particularly during the critical period. Third, I also find that when Gural telephoned the Security office on January 5 to inquire about the Security guard dressed in black that was in the intensive care unit, she was following outstanding instructions to contact the Security office at the telephone number posted in the Unit to report emergency situations. Thus, any statements made by a Security officer who answered the telephone are binding on the Employer. Fourth, Ruiz credibly testified that she personally observed Plinio consult with the Security guards dressed in black and observed Plinio accompanying them and the regular security guards on there rounds throughout the hospital, a fact not denied by Plinio. Additionally, Ruiz testified that upon arriving with Conklin at the hospital on January 9 for the pre-election conference, Plinio was waiting at the front door with a Security guard dressed in black and informed her that this is the guard assigned to escort them to the conference room. Both Plinio and the Security guard walked closely behind Ruiz and Conklin on there way to the pre-election conference. This was not denied by Plinio.
Based on the forgoing, I find that any statements or acts of surveillance undertaken by the regular Security guards and those dressed in all dark uniforms can be attributed to the Employer.
b. Discussion
The Board applies an objective test in evaluating party conduct
during an elections critical period, i.e. whether the conduct has the “tendency
to interfere with the employees’ freedom of choice” and “could well have
affected the outcome of the election.”
In Sands Hotel & Casino, 306 NLRB 172 (1992), the Board held that the respondent engaged in unlawful surveillance by posting one or two security guards near the employee entrance and another security guard with binoculars in an upstairs hotel room in order to observe employees and union agents soliciting union authorization card signatures across the street form the hotel. It further found that the posting of the guard with binoculars constituted more than ordinary or casual observation of public union activity particularly in the absence of safety or property concerns.
Applying these principles to the subject case, I find that
the transfer from the emergency room of the armed security guards dressed in
black to patrol the individual units looking for “Union people” constitutes activity
out of the ordinary and has the tendency to unreasonably chill the exercise of
employees’ section 7 rights. Likewise, I
find that the Employer’s use of armed security guards in the Units, particularly
in the absence of any evidence that the employees posed a security threat or
were dangerous, is out of the ordinary conduct and had the tendency to chill
employee rights. Accordingly, I
recommend that such conduct undermined the laboratory conditions during the
critical period and is objectionable conduct.
On the other hand, I do not find that Reynolds told Gural that the guard
was on the Unit looking for “Union persons”.
In this regard, Reynolds had an excellent command of the facts and answered
questions in a crisp and confident manner.
She has known Gural for over 20 years and knew that she was a strong supporter
of the
As it concerns the statement of Rosen that she was looking for intruders, I do not find it to be objectionable conduct. In this regard, Gural testified that Rosen informed her that she was looking for teenagers in the Unit who allegedly damaged hospital property. Under these circumstances, the use of the word “intruders” is unrelated to the union activities of employees who were distributing campaign literature on the Unit or in employee lounges. Likewise, I do not find that Rosen removed Union campaign literature as Gural was unable to conclusively establish that the flyers in her hand were “Union flyers.” Lastly, I do not find that Boccellatto removed Union campaign literature from the employee lounge as Gural was unable to establish with a degree of certainty who removed the campaign literature.
On the other hand, I find the conduct of Holden in refusing to give the union organizers the access code to enter the employee lounge and refusing them permission to distribute campaign literature any place in the Unit is inherently destructive of employee rights and constitutes objectionable conduct. I base this finding on the incredulous testimony of Holden who denied that she was wearing a “Vote No” button on her uniform when the weight of the evidence is to the contrary including the testimony of Employer witness Yessin who was certain that Holden was wearing a “Vote No” button on her clothes when he saw her in the coffee shop around 8:30 p.m. that evening, a period of time close to Holden’s discussion with Seal and Mathis earlier that same evening. Moreover, I do not credit Holden’s testimony that the individuals were wearing coats as it is inconceivable to me that Seal and Mathis would have there coats on while they were distributing literature in numerous Units inside the hospital. Indeed, there testimony that they were not wearing coats and had their identification badges on their clothes while conversing with Holden, and that they continued to openly wear there identification badges later that evening in the coffee shop, has a ring of truth to it. Additionally, they would have needed to show their hospital identification at the guard podium on the first floor in order to obtain entrance to the employee lounges on the floors above the lobby. Lastly, I find that the Employer regularly tolerated the selling of commercial items in non-patient care areas of the hospital, and Holden’s refusal to permit the distribution of campaign literature by the employee union organizers is inconsistent with this practice and is therefore, disparate.
In summary, I recommend that Objection 1 should be sustained based on the Employer’s conduct found above that interfered with the laboratory conditions during the critical period.
Objection 2
With respect to Objection 2, the Petitioner submitted evidence to the Regional Director indicating that on or about January 6, Employer Administrator Jim Strong followed several employees as they placed Union literature in employee lounges, including the lounge in Unit 3E, and that he removed the literature. Petitioner also submitted evidence indicating that on or about January 11, Employer representative Brent Yessin questioned employees concerning their union activities and then attempted to follow them as they distributed Union flyers. The Employer then removed the flyers from non-work areas.
a. Facts
Suzanne Czech, a
registered nurse and member of the
According to Czech, while the group was still on the first floor, anti-union consultant Yessin walked out of the “war room” and asked Heuschkel questions such as “Who she was”, “Was she working”, “Was the nurse she was talking with still working”, “What did both of you discuss”. Czech further stated that Yessin began to follow the group of nurses down the hallway and stated, “I think I will take a tour of the hospital with you”.
On January 5, Czech testified that the same group of nurses distributed flyers in employee lounges including the lounge in Unit 3E. After they had placed the flyers in the lounge, Czech observed an individual talking to Unit Director Margaret Kluin. As the man finished talking to Kluin, he pointed to the hall and she nodded yes. The group started to walk away but observed the man walk into the employee lounge. They then decided to enter the lounge. Czech testified that the entire group observed the man taking down flyers from the wall and holding them in his hand. Czech observed that the man was wearing an identification badge that had the name of James Strong. According to Czech, Hucker asked Strong what he was doing and he replied that he was taking the flyers down. Hucker said, “You know that you are breaking labor laws by removing our information during a campaign and you have no right to remove them as we do not remove your literature”. Hucker held out her hand and asked for the flyers back. Strong handed the flyers back to Hucker who noticed additional flyers were hidden in his other hand and she asked for those back also. Strong complied and said, “We have already seen these”.
Czeck further testified that she observed Strong following the group while they were distributing flyers in Unit 3E.
Hucker, a registered nurse since 1979 and a member of the
Hucker testified credibly and in the same manner as Czech
concerning both incidents involving Strong and Yessin. With respect to the confrontation with
Yessin, Hucker recalls that Yessin in a loud voice asked Heuschkel “Are you
talking
Hucker asserted that she felt intimidated by Yessin’s actions, began crying, and telephoned her husband. She remained on the cell phone with him until she safely reached her car in the parking garage.
Concerning the incident with Strong on January 5, Hucker confirmed that when the group confronted Strong in the employee lounge with the Union flyers in his hand, she was the one who asked him a number of questions and told him that he was breaking the law by removing the flyers during an election campaign. Hucker asked that the flyers be returned to her and Strong complied.
Yessin vaguely remembers seeing a number of individuals on the one west hallway on or about January 5, however, he has no recollection of asking them any questions or making comments about there presence in the hospital.
b. Discussion
There is no dispute that Yessin and Strong were hired by the Employer to coordinate the anti-union campaign at the hospital. The consultants were provided an office on the one west hallway that was referred to as the “war room” and wore badges bearing the name of the facility and the title “Administrator” that permitted unfettered access to the hospital including employee work areas, staff lounges, and patient care areas.
I fully credit the testimony of Czech, Heuschkel, and Hucker who in detail fashion described the actions of Yessin and Strong in following union organizers when they distributed campaign literature in non-patient care areas of the Hospital including employee staff lounges and interrogated employees about their union activities. Moreover, the testimony that Strong entered the Unit 3E employee lounge and removed campaign literature that had been placed there earlier by the organizers has a ring of truth to it and was not denied by Strong. Likewise, the above testimony that Yessin followed the employees for approximately 60 feet to the main lobby elevators after they distributed campaign literature and interrogated them about there union activities, has a tendency to interfere with employee section 7 rights and was not denied by Yessin.
For all of the above reasons, I recommend that the Board find that the actions of Yessin and Strong in interrogating employees about their union activities, following and surveilling them, and removing literature from employee lounges is conduct that destroyed the laboratory conditions during the critical period and should be sustained. Peck Incorporated, 269 NLRB 451, 459 (1984), Eaton Technologies, Inc., 322 NLRB 848, 853–854 (1997).
Objection 3
The Petitioner asserts that in the week’s leading up to the January 11 election, Ruiz and Conklin were persistently followed by armed security guards. In addition, Ruiz and Conklin were persistently escorted around the facility by the Director of Security who is normally stationed in an office. Ruiz and Conklin were granted access only to the first floor coffee shop and the first floor rest rooms. When they would go to the rest rooms, the armed guards would wait for them outside the door.
a. Facts
Ruiz, as the lead organizer in the election campaign that commenced in March 2006, routinely held organizing committee meetings and general meetings for employees to explain the benefits of union representation and respond to questions raised by the registered nurses. Ruiz and Conklin normally met with employees in the coffee shop preferring the booths against the wall by the windows. On a number of occasions, Ruiz credibly testified that she observed Rosen, Peraino, Yessin, and Strong looking into the coffee shop from the one west corridor across the courtyard. When the windows are not covered by blinds, it is possible for those standing in the one west hallway to identify individuals who are sitting in the booths conversing with Ruiz and Conklin.
Ruiz compared and contrasted the uniforms of the guards stationed inside the hospital near the elevators with the guards dressed in all black that became more visible during the last two weeks before the election. The guards in black frequently followed employees when they were distributing Union flyers and often remained in the coffee shop for periods up to an hour while observing Ruiz and other nurses conversing in the booths.
On January 9, when Ruiz and Conklin arrived around
Approximately two weeks before the election, when Ruiz and Conklin arrived at the facility, Ruiz overheard one of the regular Security guards get on the radio and call “Code Red”. Ruiz opined that this referred to the red jackets that she and Conklin always wore at the facility with the Union emblem. Ruiz noticed that after she heard the “Code Red” announced on the radio that two or three Security guards would patrol in front of the coffee shop while they were inside. Conklin also testified that both the regular Security guards and those dressed in black would frequently look inside the coffee shop and on occasions would remain in the coffee shop for periods up to an hour.
Ruiz testified that between January 1 and 11, the Security guards dressed in black followed her and Conklin on at least five occasions to the first floor rest room and remained outside until they exited. Ruiz further stated that no one else other then the union organizers were escorted to the rest room nor did the Security guards follow nurses once they passed the guard station in the lobby unlike the union organizers.
b. Discussion
The record is replete with testimony, and in particular during the period between January 1 and 11, that Security guards dressed in black surveilled and followed union organizers including Ruiz and Conklin. Indeed, on at least five occasions during the above period armed Security guards dressed in black followed Ruiz and Conklin to the restroom and remained posted outside until they exited.
As it concerns the
Petitioner’s allegation that Plinio persistently followed Ruiz and Conklin
around the facility, the evidence does not support this allegation. Rather, Ruiz testified that when she arrived
for the pre-election conference on January 9, Plinio met her at the front door
and informed her that the guard dressed in black would escort her to the
pre-election conference room. The
evidence discloses that in order to reach the conference room, one would have
to pass the Security station by the main elevators and then proceed past the
elevators to the conference room. This
was the only time that Plinio escorted Ruiz and Conklin in the facility, and
under these circumstances I do not find that this one time event constituted
surveillance.21
With respect to one of the regular Security guards calling “Code Red” on the radio, I find that the resulting conduct flowing from this alert constituted surveillance by the Employer. In this regard, immediately after the “Code Red was announced, two or three Security guards including those dressed in black uniforms followed Ruiz and Conklin and remained outside the coffee shop while they were inside. On a number of occasions, the Security guards would remain in the coffee shop for periods in excess of an hour and were able to observe who Ruiz and Conklin were conversing with. While the Employer raised the inference that a “Code Red” could refer to a fire or a scheduled drill, the evidence does not support there position. In this regard, Ruiz credibly testified that on the two occasions that she heard the “Code Red” announced on the radio by the Security guards, no alarm or lights went on in the facility, no one was evacuated from the coffee shop or the hospital and no announcements were made over the public address system regarding an emergency or that a fire or alarm had been sounded. Under these circumstances, I find that the “Code Red” announcement was solely to alert those in radio contact that the union organizers who wore red jackets with the Union emblem were in the hospital and heightened security should be initiated including patrolling past and entering the coffee shop.
Accordingly, I conclude that during the last several weeks leading up to the election, the Employer increased its security presence in the hospital by directing both the regular and the Security guards dressed in black to follow and engage in surveillance of the employee union organizers and also Ruiz and Conklin. Therefore, I find that the Employer’s use of armed security guards to follow and closely monitor the presence of the union organizers, individually and while interacting with bargaining unit employees, was contrary to the Employer’s normal usage of security and constitutes unlawful surveillance that undermined the laboratory conditions for the election. Flexsteel Industries, 311 NLRB 257 (1993), Tres Estrellas de Oro, 329 NLRB 50, 51 (1999).
In summary, I recommend that Objection 3 should be sustained.
Objection 4
The Petitioner asserts that approximately two days prior
to the election, Ruiz and Conklin were in the first floor coffee shop with two
bargaining unit committee members. A
group of Employer management employees entered the coffee shop and occupied
several booths. Yessin arrived shortly
thereafter, and after conversing with the Employer representatives, walked over
to the Union booth and asked “How many NYSNA hospitals are closing in
a. Facts
Ruiz testified that she and Conklin were in the coffee
shop on January 9, and around
Shortly after Yessin arrived in the coffee shop and finished
conversing with Employer representatives Rosen, Peraino, and Holden, he came
over to the Union group and stood at the end of their booth. He said, “Can I get you a cup of coffee?” The Union group attempted to ignore him. Yessin then said, “Aren’t there five NYSNA
hospitals closing in
Because Ruiz and the other organizers felt surrounded, they left the coffee shop. Ruiz and Conklin testified that as they left the coffee shop, they were followed by two armed security guards dressed in black to the benches in front of the hospital. The security guards remained ten feet behind and maintained that distance until the group reached the benches.
Seal and Mathis testified in a similar manner to Ruiz and upon returning to the coffee shop informed Ruiz and Conklin of their frustration in not being able to access the employee lounge in Unit 3A due to Holden’s refusal to provide the access code. Seal noted that she observed Rosen and Peraino in one of the booths when she arrived and that Yessin came to the Union booth approximately two minutes later and asked Ruiz how many NYSNA hospitals are closing in New York. Seal and Mathis testified that Yessin asked for their names on two or three occasions but they were surprised that he did so as they both were wearing their identification name tags that were clearly visible and both Rosen and Peraino knew their names.
Yessin admitted that he was in the coffee shop on the evening
of January 9, and engaged in conversation with the Union representatives. In this regard, Yessin acknowledged that he
asked the group “How many NYSNA hospitals have closed in
Registered Nurse, Nancy Vaccaro, who was in the coffee shop on the evening of January 9, testified that although she did not hear any of the individual conversation that occurred between Yessin and the union organizers, she specifically recalls that Ruiz on at least one occasion used profanity when responding to a comment made by Yessin. She described Ruiz to be angry and the profane remark was made in a loud manner. Yessin also testified that the tone of Ruiz’ comments were hostile and were made in a loud volume.
Rosen testified that she went to the coffee shop on January
9 around
b. Discussion
I find that the conduct of Yessin went beyond the bounds
of normal conversation and under the circumstances constituted harassment and
surveillance. In this regard, Yessin
spoke in a loud manner when he came over to the Union booth and could be heard
by not only the Employer representatives sitting in an adjacent booth but also
by other registered nurses that were in the coffee shop. There was no reason for Yessin to ask Ruiz
and Conklin “How many NYSNA hospitals were closing in
Accordingly, I find
that the underlying conduct found above interfered with the laboratory
conditions of the election and recommend that this objection be sustained. Teksid
Aluminum Foundry, Inc., 311 NLRB 711 (1993), Department Store, Division of Dayton Hudson Corporation, 316 NLRB
85 (1995).
Objection 5
The Petitioner asserts that on the day of the election, the Employer posted a printed sign entitled “Election Day Information” on an easel at the main entrance to the facility. The sign advertised free parking and child care for those voting in the union election, and the bottom left-hand corner of the sign contained the words, “Vote No,” with a graphic of a box with a check mark in it.
a. Facts
The parties do not dispute that the Employer posted a sign advertising free parking and child care services for those employees voting in the election (Pet Exh. 2). Ruiz and Czech credibly testified that the two by three foot sign was posted in the entrance of the hospital lobby and it was visible to all employees on there way to vote in the election on January 11.
b. Discussion
In determining whether the Employer’s offer of free parking and child care at issue is objectionable, the Board does not inquire into the subjective reactions of the potential recipients of the benefit. The standard is an objective one—whether the challenged conduct has a reasonable tendency to influence the election outcome. When the conduct takes the form of an employer’s offer or grant of benefits, the Board is mindful of the “suggestion of the fist inside the velvet glove”, i.e., that employees “are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged.”22 In evaluating the likely effect, the Board takes into account such factors as the size of the benefit in relation to its stated legitimate purpose, the number of employees receiving it, how the employees would reasonably construe the purpose given the context of the offer and its timing.
The offer of free parking and child care services was not
linked in any way to transportation expenses and can be construed as something
extra for employees who voted on January 11.
Indeed, there is no dispute that all employees who entered the lobby
area on there way to the election polling site would walk past the sign that
announced these benefits. Thus, it is
reasonable to conclude that a large number of the 732 employees who cast a
ballot saw the sign posted in the lobby.
Significantly, the election sign ended with the admonition that employees
should “Vote No.” Given this message and
in the absence of any link to transportation expenses, I find that employees
would reasonably perceive this as a favor from the Employer which the employees
might feel obligated to repay by voting against the
In sum, I find that the Employer’s offer to pay free
parking and offer child care services on the day of the election for those
voting including the admonition to “Vote No,” constitutes objectionable
conduct.
iv. setting aside the election
I find that the January 11 election must be set aside, and
a second election ordered.It is the Board’s usual policy to direct a new
election whenever an unfair labor practice occurs during the critical period
since conduct violative of Section 8(a)(1) is, a fortiori, conduct which
interferes with the exercise of a free and untrammeled choice in an
election. White Plains Lincoln Mercury,
288 NLRB 1133, 1137–1138 (1988) (the interests of employee free choice require
that the unfair labor practice allegations be considered as grounds for setting
aside the election even though not
specified in the election objections).
Here, the cumulative effect of the three meritorious unfair labor practices and the sustained objections amounts to conduct that is more than de minimis and, therefore, warrants a second election.23
Conclusions and Recommendations to the Board
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by directing representatives of the
4. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by hiring a former union organizer and assigning him to the campaign in response to the Union without providing assurances to employees that any information received from the former union organizer concerning who supported the union would not be used against them.
5. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by promising improved terms and conditions of employment, including a “shared governance” concept, in order to discourage employees from selecting the Union as their collective-bargaining representative.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended24
ORDER
The Respondent,
1. Cease and desist from
(a) Directing representatives of the
(b) Hiring a former union organizer and assigning him to
the campaign in response to the Union without providing assurances to employees
that any information received from the former union organizer concerning who supported
the
(c) Promising employees improved terms and conditions of
employment, including a “shared governance” concept, in order to discourage
employees from selecting the
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facility in Toms River, New Jersey, copies of the attached notice marked “Appendix.”25 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 and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 7, 2006.
(b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
It is further ordered that the election held on January 11, 2007, in Case 4–RC–21199 be set aside, and that this case be severed and remanded to the Regional Director to conduct a new election when she deems appropriate.
Dated,
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not direct representatives of the New York State Nurses Association (NYSNA) to retrieve their vehicles from our parking garage and to leave the parking garage.
We will not hire
former union organizers and assign them to our campaign in response to NYSNA or
any other labor organization without providing assurances to you that any information
received from the former union organizers concerning who supported the
We will not promise you improved terms and conditions of employment, including a “shared governance” concept, in order to discourage you from selecting NYSNA or any other labor organization as your collective-bargaining representative.
We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the Act.
We will, during any union organizing campaign, notify you if we have hired former union organizers and have assigned them to our campaign opposing NYSNA or any other labor organization and we will provide assurances to you that any information received from the former union organizers concerning who supports NYSNA or any other labor organization will not be used against you.
Randy M. Girer, Esq., for the General Counsel.
Maurice J. Nelligan, Jr., Esq., for the Respondent-Employer.
Hope A. Pordy, Esq., for the Charging Party-Petitioner.
SUPPLEMENTAL DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. On December 9, 2008, the Board issued an Order remanding the proceeding to the undersigned for further consideration.1 The Board directed me to address the Respondent’s primary defense in one of the Section 8(a)(1) allegations alleged in the complaint that Vice President of Patient Care Services, Lauren Burke did not introduce the concept of shared governance at a meeting held on October 18, 2006,2 because the concept was an established model that substantially predated the Union campaign. The Respondent argues that shared governance was first implemented in 2001 when Burke’s predecessor adopted the “Councilor” model of shared governance in anticipation of the Respondent’s application in 2002 to the American Nurses Credentialing Center (ANCC) requesting Magnet Recognition.3 The Respondent further asserts that the record shows that, in the summer of 2006, Burke began advocating for the Councilor model of shared governance as part of the Respondent’s application for re-designation as a Magnet hospital. The Respondent opines that Burke chose to use the term “shared governance” at the October 18 meeting simply because the term had been used previously by the ANCC in its recommendation accompanying the 2003 Magnet Award.
The
Position of the Parties
The General Counsel alleges in paragraph 8 of the complaint that on or about October 18, Respondent by Burke, at a meeting with employees at the Medical Center, by introducing and describing a shared governance concept, promises its employees improved terms and conditions of employment in order to discourage them from selecting the Union as their collective-bargaining representative.
The Respondent argues that Burke did not introduce the concept of shared governance at the meeting since the concept was an established model that predated the Union campaign. In asserting that Section 8(a)(1) of the Act has not been violated, the Respondent contends that shared governance is a necessary component in Magnet designation, noting that the 2003 Magnet Award included the recommendation that the Respondent “continue implementation of the shared governance structure.”
Background
and Facts
In 2002, Respondent introduced the “Councilor” model which consisted of four councils: nursing practice, nursing performance improvement, nursing research and nursing leadership (R Exh. 12). The Councils were established by Burke’s predecessor prior to Respondent’s application for the Magnet award in 2002. In March 2003, Respondent was awarded magnet status for a 4-year period. The award is given by the ANCC, an affiliate of the American Nursing Association.
The Professional Practice Council (PPC) had nursing representatives from the various units and met monthly. The nurses primarily discussed nursing policies; however there were discussions of some working conditions.
Teresa Wiencke was appointed to the PPC in 2002, and participated until October 2006, when she resigned after shared governance was announced.
Sandy Mathis served on the PPC starting in 2004 and attended three or four meetings each year. After shared governance was announced in October 2006, Mathis attended two PPC meetings but testified that no discussion took place regarding shared governance.
Wiencke and Catherine Heuschkel served on the committee to assist Respondent in applying for the Magnet award in 2002, and they both testified that no one informed them that shared governance was a prerequisite for receipt of the award.
Burke testified that on September 8, Vice President of Nursing for the Saint Barnabas Health Care System Nancy Holecek mandated that a system-wide Professional Nursing Practice Council (PNPC) be established (R Exh. 14), however, the document does not mention shared governance. Once the system-wide PNPC was established, the PPC merged with it and a memorandum dated September 25 was sent to the nurses announcing the merger. That document, (R Exh. 15), does not mention shared governance. Burke further testified that she implemented shared governance based on the March 12, 2003, recommendations form the Magnet committee (R Exh. 13), that the Respondent “Continue implementation of the shared governance structure.” Burke admitted, however, that prior to October 18, she never distributed any materials, held plenary nurse meetings or made power point presentations regarding shared governance.
Helen Hucker, Linda Gural and Mathis all testified that the first time that shared governance was implemented by Respondent was during the organizing drive in October 2006. Further, they were certain that no announcement was made about the shared governance concept during the 2002–2003 Magnet Award application process and the Respondent received the Award in March 2003 without implementation of shared governance.
At the direction of Holecek, the concept of shared governance was ceased in April 2007. Minutes from the PPC meeting held on April 9, 2007, show that the term shared governance was no longer in use at the Respondent (GC Exh. 67). Burke testified that after the term shared governance was abandoned, Respondent continued the process of applying for the 2007 Magnet award without relying on the concept of shared governance.
In June or July 2006, according to Ruiz, Merlin, Wiencke, and Regina Smith,4 Keith Peraino informed employee union organizers at a meeting held at the Quality Inn Hotel that the only way the Hospital could counter union activity was by the introduction of shared governance. It was a way of organizing without having a union because the nurses would have a greater say in their working conditions.
Shared governance is a concept wherein registered nurses are able to work alongside management to develop better working conditions and practices to ultimately improve patient care. In its simplest form, it is shared decisionmaking based on the principles of partnership, equity, accountability, and ownership at the point of service. This management process model empowers all members of the healthcare workforce to have a voice in decisionmaking (GC Exh. 31, 53, 54 and 84). In addition, according to Burke, the concept would enable nurses to do some self scheduling and help staff the department the way they felt was best.
Commencing in July 2006, Burke and Rosen started meeting with individual employee union organizing committee members to propose the concept of shared governance and to encourage them to act as liaisons from their respective units.
As discussed in my original Decision, Peraino telephoned Hucker and Gural in August 2006, to inform them that he along with Rosen would be working on shared governance and that Holecek wanted it to work and be implemented.
In July 2006, Rosen came to the intensive care unit with the Director of the Critical Care Unit Judy Boccellato who introduced Gural to Rosen. Thereafter, Rosen met with Gural in the conference room during duty time and after informing her that she was very influential with the nurses at the Hospital due to her expected elevation to the presidency of the New Jersey State Nurses Association,5 advocated the concept of shared governance stating that it would be a better way to go than unionizing.
In September 2006, Wiencke was called into a meeting with Rosen and Burke and was solicited to become a member of the shared governance committee. Wiencke said that she was not interested since it was a conflict of interest with her union organizing responsibilities.
In September 2006, Rosen and Burke met privately with Hucker. This meeting occurred after she encountered Peraino in the lobby of the Hospital and he told her that the shared governance concept would be a good instrument for nurses. He further informed Hucker that Holecek wanted it to work and the Union was not all it was cracked up to be.
Rosen informed Hucker during the hour long meeting held on
duty time that shared governance would be between the employees and the administration
and that it would give nurses a voice in practice issues and permit them to
raise their concerns. Rosen and Burke
asked Hucker to cochair the shared governance committee and act as its
corporate liaison. Rosen told her that
Holecek really wanted it to take off and if the
In late September or early October 2006, Burke met with Hucker to discern whether she would accept the position. Hucker told Burke that she had to decline the offer.
Rosen also met with Union Organizing Committee member
Smith on three or four occasions to talk about shared governance, stating that
it would be beneficial for the nurses and they would have a voice in patient
care and practices at the Hospital.
Rosen also stated in these conversations that the
On October 18, the Employer held a registered nurse (RN) lunch and learn meeting to officially communicate the concept of shared governance to employees.
During the meeting, Burke gave a power point presentation on shared governance and at the conclusion of the meeting told nurses that they should ask their coworkers to volunteer for the committee, but if they did not volunteer, then the unit directors would request employees to serve on the shared governance committee.
Commencing on or about October 18, the shared governance concept was implemented at the Hospital during the critical period.7
Discussion
Peraino, while still working for the Union, shared his
opinion that the shared governance concept could be an impediment to organizing
the nurses and might be a critical element in the Employer’s campaign to oppose
the
During
the period while Peraino was still employed with the
Likewise,
Rosen was a pivotal and visible figure in pushing the concept of shared
governance and often talked to employees with Burke about the program. She apprised those who she spoke with that
the shared governance concept was being touted at the highest levels of the
Employer and was the best way to proceed rather then having a union at the facility.
It
is apparent to me that Peraino’s opinion that the shared governance concept was
a tool that could be used to undermine the Union was one of the centerpieces of
the Employer’s campaign to disabuse employees from selecting the
Since
I conclude that Rosen and Peraino were working for and with Burke and Holecek
to implement the shared governance program, I find that when Burke held the
meeting on October 18, to announce the implementation of the shared governance
concept, it was with the express purpose of attempting to persuade and discourage
the nurses from selecting the Union as their collective-bargaining representative.
Respondent’s
argument that shared governance is a continuation of existing practices rather
then the introduction of new measures is grounded on the merging of the
Professional Practice and Nursing Practice Councils and the requirements that
the 2003 Magnet Award included the recommendation that the Respondent “continue
implementation of the shared governance structure.”
I
reject these arguments for the following reasons. First, the forming of the systemwide PNPC had
no impact on the concept of shared governance.
Both documents introduced into evidence to support the formation of the
Council do not reference shared governance (R Exhs. 14, 15). Moreover, the merger of the Professional
Practice Council and the Nursing Practice Council that was announced on
September 12 does not reflect in the minutes of that meeting any mention of
shared governance (GC Exh. 19).
Likewise, the minutes for the October 18 meeting to announce the
implementation of shared governance make no mention of the merger of the two
committees (GC Exh. 66).
Second,
the Respondent’s argument that the Magnet Award requires the continued
application of shared governance is also unavailing. In this regard, the evidence establishes that
no effort was undertaken to implement shared governance during the application
process leading up to the receipt of the Magnet Award in March 2003. This is confirmed by the credible testimony
of employees Gural, Wiencke, and Heuschkel who were never informed by Respondent
that shared governance was a requirement to qualify for the Award. Moreover, both Wiencke and Heuschkel served
on the committee to assist in the application process and were never informed
by Respondent that shared governance was a condition for receipt of the
Award. Indeed, Burke admitted that no
information was distributed, no meetings were held, and no committee’s were
formed to address the model of shared governance between the commencement of
the application process in 2002 and October 2006. I also note that shared governance was not
relied upon in Respondent’s 2006 Magnet award application, as they abandoned
the term altogether in April 2007, a mere 3-month period after the
Contrary
to Burke’s testimony that shared governance was required by the Magnet Award, I
conclude that the Respondent successfully obtained the Magnet Award in March
2003 relying on the “Councilor” model of nursing committees rather then on the
concept of shared governance.9 Indeed, the evidence establishes that shared
governance was not implemented at that time.
Now, the Respondent attempts to shield its first-time implementation of
the shared governance model in October 2006, by bootstrapping what did not
occur in 2003. The reliance on the
mention of shared governance in the March 12, 2003 communication from the
Magnet committee is misplaced (R Exh. 13).
Under
these circumstances, and particularly noting that the implementation of shared
governance was a new measure targeted to secure support from known union
supporters and to have them influence others, I find that the Employer engaged
in conduct violative of Section 8(a)(1) of the Act. See, Audubon
Regional Medical Center, 331 NLRB
374, 412 (2000) (employer’s announcement during critical period of focus action
team composed of nurses and managers that dealt with staff issues violated
Section 8(a)(1) of the Act). Beverly California Corp., 326 NLRB 153,
176–177 (1998) (employer’s announcement of the formation of employee council to
resolve workplace issues, including solicitation of employee participants,
violated Section 8(a)(1)).
Accordingly,
I reaffirm the finding set forth in my March 14, 2008, decision in this matter
including my proposed Order and Notice language regarding this allegation.10
Dated,