Southwest Detroit Hospital

SOUTHWEST DETROIT HOSPITAL 449 Southwest Detroit Hospital and Darryl Willett. Case 7-CA-16262 May 13, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On January 24, 1980, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint in this proceeding alleges, inter alia, that Respondent discharged probationary em- ployee Darryl Willett, the Charging Party, because he engaged in protected concerted activities, which consisted of attempting to enforce a provision in an existing collective-bargainiing agreement between Respondent and Hospital Employees' Division of Local 79, Service Employees International Union, AFL-CIO. ' The Administrative Law Judge found that Wil- lett was, in effect, discharged for insisting on press- ing a grievance under the contract outside the ma- chinery provided, and that his conduct, as protect- ed concerted activity, was unaffected by his proba- tionary status. Thus, he concluded that Respondent had discharged him in violation of Section 8(a)(l) of the Act. Respondent contends, inter alia, that Willett was discharged for insubordination and, alternatively, that he was not engaged in protected concerted ac- tivity. The facts, as more fully set out in the Adminis- trative Law Judge's Decision, are as follows: On or about April 1, 1979, Willett, a licensed practical nurse (LPN) at Respondent's Hospital, was asked by one of his supervisors to work a second shift after the completion of his regular shift which ended at midnight. He agreed to work this double i Under the contract. LPNs left in charge of a unit fr a minimum of 2 hours are entitled to $1.25 additional compensation per hour for the period involved During the term of an employee's probationary period. every employee had access to the grievance arbitration machinery in the contract The contract denies the access only to a probationary employee who has been discharged. The Administrative Law Judge incorrecily concluded that Willett was not eligible to file a grievance during the lime period prior to his discharge 249 NLRB No. 71 shift and did so work. The only other nurse also working on the shift was a nursing technician2 who was put in charge of the shift. During the next few days Willet had conversations with two other nurses concerning the appointment of the nursing technician as charge nurse on April 1, and Respondent's failure to appoint Willett, as an LPN, to that position. On April 3, 1979, Willett initiated a meeting with Grace Andrews, then associate di- rector of nursing, in her office, and told her that he was concerned that he had not been put in charge of the midnight shift on April 1, and had not re- ceived premium charge pay. Andrews told him that she could not pay Willett for being in charge, since he actually had not been in charge. She asked him if he had discussed the charge nurse appoint- ment with his supervisor and he said he had not. Willett then stated that he thought the supervisors had made a stupid decision by placing the nursing technician in charge when there were four regis- tered nurses on the same floor who presumably could have been put in charge. Willett also said that he wanted to investigate the incident further. The meeting ended with no further discussion. On April 6 or 7, Andrews called Willett into her office at or about 4:30 p.m. She told him that she was disturbed about his views expressed at their previous meeting and his "feeling that the supervi- sor is stupid, and that they made stupid decisions." Willett stated that he saw no sense in going over their previous conversation of April 3. He got up to leave and stated that he thought he had "a case." According to Andrews' testimony, she then said to Willett: "I am not finished with the conver- sation. I did ask you to come in, and I think you have a right to hear me out." She then informed Willett that he was relieved of duty. After consulting with her superior, Andrews sent Willett a termination letter several days later. The letter stated that as a result of the prior discussion with Willett it was determined that he would be terminated. In the above factual setting, we cannot agree with the Administrative Law Judge's finding that the motivating cause of Willett's discharge was his pressing of a contractual grievance.' Rather, we conclude that it was Willett's precipi- tous decision to leave the meeting with Andrews and his refusal to listen to her concerns about his 2 A nursing technician was defined as an indiidual who had graduated from a registered nursing program, but who had not yet receied a ih- cense to practice as a registered urse from the State of Michigan 1 In view of our findings and conclusions herein we find t unnecessars to determine whether Willelt was engaging in protected concerted ctil- It when he discussed with Andrews the asignment of the charge nurse position Nor do swe find it necessary tIo rule on the findinlgs of the Ad ministrative Lau Judge concerning the supervlsory staus of charge nurses as expressed in fit 4 of his Decision SOUTHWEST DETROIT HOSPITAL 441) 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criticism of supervisory decisions which were the proximate causes of the ultimate decision to termi- nate him. 4 We note that the Administrative Law Judge found that it was Willett's refusal to discuss his views concerning supervisory decisions which prompted Andrews to recommend and effectuate the decision to terminate him. We further note that Andrews did not decide to recommend Willett's termination after their first meeting concerning his protest of the charge nurse assignment. She waited until the second meeting, and it was immediately after he refused to listen to her concerns about his criticism of supervisory de- cisions that Andrews relieved him of duty. By Wil- lett's refusal to listen and by his leaving the meet- ing, we conclude that Willett gave Respondent grounds for regarding him as insubordinate, and the reason for his discharge was not protected by the Act. Accordingly, we shall dismiss the com- plaint in its entirety. ORDER It is hereby ordered that the complaint in Case 7-CA-16262 be, and it hereby is, dismissed in its entirety. Although Andrews testified that she recommended that Willett be terminated because she "didn't feel that he should have been calling a su- pervisor stupid," she also testified that she relieved him of duty during their second meeting immediately after she said to him: "You are not leaving, and we are not through with the conversation." The facts amply demonstrate that Willett was relieved of duty and subsequently terminat- ed because he refused to discuss matters further with Andrews. We do not view Andrews' failure to state succintly the proximate cause of dis- charge as changing this conclusion. See The Eastern Beef & Provision Co., 218 NL.RB 404, fn. 12 (1975). DECISION FINDINGS OF FACT A. Statement of the Case WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before the above at Detroit, Michigan, on an unfair labor practice com- plaint, issued by the Acting Director of Region 7 of the National Labor Relations Board, which alleges that Re- spondent Southwest Detroit Hospital 2 violated Section The principal docket entries in this case are as follows: Charge filed in this case by Darryl Willett, an individual, against Respondent on April 10, 1979, and an amended charge filed by Willett against Respondent on May 16, 1979; complaint issued by the Acting Regional Director of Region 7 against Respondent on May 18, 1979; Respondent's answer filed on May 30, 1979; and a hearing held in Detroit, Michigan, on November 7, 1979. 2 Respondent admits, and I find. that it is a Michigan corporation which maintains its principal place of business in Detroit, Michigan, where t operates a hospital. During the fiscal year ending September 30, 1978, Respondent, in the course and conduct of this business, received gross revenues in excess of $500,000 and purchased and caused to be transported to its place of business goods and materials valued in excess of $100,000, of which items more than 50,000 were transported to Michigan from points and places located outside the State of Michigan. 8(a)(l) of the Act. More particularly, the complaint al- leges that Respondent discharged the Charging Party, Darryl Willett, because he engaged in the concerted pro- tected activity of attempting to enforce a provision of an existing collective-bargaining agreement between Re- spondent and Local 79, Service Employees International Union, AFL-CIO (herein sometimes called Union or SEIU), relating to payment of premium pay for charge nurses. Respondent maintains that any activity on Wil- lett's part leading to his discharge was individual activi- ty, not concerted activity protected by Section 7 of the Act. It also asserts that Willett was discharged for rude- ness or insubordination. Upon these contentions the issues herein were joined. B. The Unfair Labor Practices Alleged Respondent operates a hospital in the central part of the city of Detroit. For a number of years it has been a party to a collective-bargaining agreement with the Union which covers various classifications of employees, including licensed practical nurses (LPNs). Registered nurses (RNs) and professional employees are specifically excluded from the unit description contained in section 2 of the agreement. Article 18, section 4, provides that "whenever an L.P.N. is left in charge of a unit or floor for a minimum of two (2) hours they shall be entitled to additional compensation of $1.25 for each hour they are in charge." Charging Party Darryl Willett was hired by Respond- ent on January 29, 1979, as a licensed practical nurse. Up to and including the date on which he was discharged, he was a probationary employee and, as such, had no re- course to the grievance procedure of the collective-bar- gaining agreement because of the exclusion of probation- ary employees contained in article 7, section 1, thereof. Willett normally worked the afternoon shift, which runs from 3 to 11:30 p.m., but he was occasionally asked to double up by working the following night shift as well. His normal duty station was ward five south, which is a gynecology ward. On the evening of April 1, 1979, Willett was asked to work the night shift on ward five south because no RNs were available on that shift for that location. He agreed to do so. During that shift, only Willett and Lillie Corpus were on duty on five south. Corpus was assigned the responsibility of being charge nurse. Corpus is a nursing technician, meaning that she has completed the academic training required of a registered nurse but had not yet passed the state board examination for registered nurses. Shortly after the end of the shift, Willett had occasion to discuss the assignment of Corpus as charge nurse with two other LPNs, Darby and Golden. Golden asked Wil- lett who had been assigned to be the charge nurse on his shift and he replied that Corpus had been given the job. Golden told him that he could get into trouble for work- ing under a nurse technician (as distinguished from an RN). Willett said he was unaware of this fact. Accordingly, Respondent is an employer engaged in commerce within the meaning of Sec. 2(2). (6), and (7) of the Act. The Union is a labor organization within the meaning of Sec. 2(5) of the Act. SOUTHWEST DETROIT HOSPITAL 451 Two days later, Willett had occasion to speak with Darby about the same matter. Willett told Darby that Corpus had been assigned as the charge nurse on the night in question. Darby replied that he should have been placed in charge, adding that LPNs were frequent- ly placed in charge of a shift.3 She also added that Wil- lett was the one who should have received charge pay for that shift. Shortly after his conversation with Darby, Willett saw Grace Andrews, who was then the associate director of nursing, in the hallway and asked to speak with her. In a discussion which took place in Andrews' office, Willett told Andrews that he had worked the midnight shift on April 1, that there were no RNs on duty, and that Corpus had been placed in charge of the ward on that shift. Willett asked Andrews if Corpus had a license to be a registered nurse and Andrews replied that it was none of his business, adding that the supervisor had the responsibility of assigning charge nurses. Willett stated that he was concerned because he felt that he should have been placed in charge of the shift and should have received charge pay. Andrews replied that the event took place on Sunday night that it was already Wednes- day, that Corpus had actually worked as the charge nurse, and that it would not be fair for Willett to receive charge nurse pay when Corpus had actually performed the assignment. When Andrews reminded Willett a second time that it is the supervisors who have the re- sponsibility of determining who are to be charge nurses, Willett stated that he thought they had made a stupid de- cision in this case because there were four RNs on a nearby ward during the shift in question. He also told Andrews that he would like her to investigate the case. Two days later, on April 6, Andrews summoned Wil- lett to her office about 4:30 p.m. Andrews began the conversation by saying that she was disturbed about their previous conversation and in particular about Willett's statement that supervisors had made a stupid decision. Willett said that he did not think that there was any point in rehashing the earlier conversation and got up to leave. Andrews insisted that he hear her out and Willett replied that he was going to find out about his rights. When Willett continued to refuse to discuss the matter any further, Andrews informed him that he was relieved from duty. Andrews then consulted her superior, Fuller, and rec- ommended that Willett be discharged. She received Fuller's approval. On April 10, Andrews wrote Willett the following letter: On Friday, April 7, 1979, a conference was held with you to discuss concerns that I had regarding your adjustment as a Licensed Practical Nurse at Southwest Detroit Hospital. As a result of that discussion, it was determined that your needs were inconsistent with the needs of the institution and therefore, could not be met through continued employment here. Your employ- 3 Respondent admits that, from time to time, it places LPNs in charge of a shift if no RN is available However, it knows of no occasion when it has placed a probationary LPN in charge of a shift ment at Southwest Detroit Hospital is hereby termi- nated, effective immediately. Your final check may be picked up at the Person- nel Office on the next scheduled payday, upon pres- entation of your employee identification badge. C. Analysis and Conclusion In assessing the legality of Willett's discharge, the first inquiry must address the question of what was precipitat- ing the discharge. The General Counsel says that it was Willett's insistence on his rights under the contract. Re- spondent says that he was discharged for insubordina- tion, or at least rudeness to a supervisor. The discharge letter phrases the reason for the discharge in obscure terms; namely that Willett's needs were inconsistent with the needs of the hospital. Willett was certainly pressing his rights under the con- tract when he spoke with Andrews on April 4 and again when he spoke of his rights during their second conver- sation on April 6. The second interview took place at Andrews' request because she was dissatisfied with Wil- lett's attitude and mode of expression during the first in- terview. In pressing his claim Willett asserted that the act of a supervisor in making an assignment to which he objected was stupid. His language was more restrained on the second occasion but he still did not satisfy An- drews. The fact that harsh language may be used by an employee as part of the res gestae of a grievance meeting does not constitute insubordination. It cannot constitute the basis for a lawful discharge for insubordination of one who is in the process of exercising protected rights because, on such occasions, employee and supervisor are dealing with each other as equals. Hawaiian Hauling Services, Ltd., 219 NLRB 765 (1975); Thor Power Tool Company, 148 NLRB 1379, enfd. 351 F.2d 584 (7th Cir. 1965); Crown Central Petroleum Corporation v. N.L.R.B., 430 F.2d 724 (5th Cir. 1970). It was Willett's unflattering characterization of the decision which he was protesting that got under Andrews' skin and which prompted her to hold a second meeting. It was his refusal to recede from his original position and to discuss it further which prompted her to recommend his dismissal and to effectu- ate it, after getting approval from higher management. Hence, I must conclude that it was the pressing of a grievance by Willett which was the motivating cause of the discharge here at issue. A second inquiry must then be made into whether the grievance which Willett was pressing was merely an in- dividual complaint, unprotected by statute, or whether his actions constituted concerted protected activity within the meaning of Section 7 of the Act. Willett thought that he was entitled to be placed in charge of the midnight shift on ward five south on April I and to receive the $1.25-per-hour premium pay which this as- signment calls for under the contract. He felt that the as- signment of a medical technician, as distinguished from a registered nurse, was a contract violation and that it vio- lated the rights of members of the bargaining unit in SOUTHWEST DETROIT HOSPITAL 451 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which he worked.4 On the other hand, Respondent felt that hospital supervisors had the right under the circum- stances to assign a nursing technician to the job, that such assignments were in effect a management preroga- tive under the contract, and the fact that Willett had not actually performed work for which he was seeking addi- tional compensation precluded him from prevailing in any claim for premium pay. The Board cannot and will not determine the merits of this grievance. Regrettably, an arbitrator cannot do so either because, as a probationary employee, Willett has no access to the grievance and arbitration machinery set forth in the contract. Had Willett been eligible to file a grievance under the contract, and had he pushed it in the manner indicated by the record in this case, there would be no doubt that by pressing a grievance, invoking both formal contract machinery and a specific substantive provision of the contract, he would be deemed to be engaging in concert- ed protected activity, even though the intended benefici- ary of his grievance might only be himself as an individ- ual employee. Indeed, most formal contract grievances have as their immediate intended beneficiary only an in- dividual employee claimant, who is asserting that he has either been short changed, badly treated by a foreman, denied a promotion, or otherwise not given his just de- serts under an existing collective-bargaining agreement. This is still protected concerted activity because, as stated in Key City Mechanical Contractors, Inc., 227 NLRB 1884, 1887 (1977): In a well developed line of authority, it has been held that where a lone employee attempts to en- force a provision of a collective-bargaining agree- ment, his effort is an extension of the concerted ac- tivity giving rise to the agreement. [Citations omit- ted.] See also Adams Delivery Service, Inc., 237 NLRB 1411 (1978); Roadway Express. Inc., 217 NLRB 278 (1975). In arguing his claim with Andrews, Willett was invok- ing the terms of an outstanding collective-bargaining agreement which governs the rights of all employees in the unit to which he was assigned. The fact that he was doing so dehors the formal machinery set up in that agreement because he was ineligible to invoke that ma- chinery does not justify a departure from the well devel- oped line of authority cited above. While probationary status may call for a different treatment of an employee under grievance machinery of the contract here in ques- tion, probationary status in no way affects an employee's rights under the Act. Adams Delivery Service, Inc., supra. Moreover, Willett had discussed his problem with two fellow employees before approaching Andrews. In par- ticular, he had spoken with LPN Darby just a short 4 1 is well settled that a charge nurse is not a supervisor wit hin the meaning of the Act. and the existence of a specific premium pa; rate in the contract is evidence of the fact that the parties hereto regard charge nurses as nonsupervisors. See Furtle Creek (onvalescent Cenres., Inc., 235 NLRB 4XK) (1978), and cases cited thereinl while before his initial conversation with Andrews. Darby told Willett that he should have been placed in charge of the shift and that he was entitled to premium pay for the work in question. In taking up this question with Andrews, he was merely following through upon information given to him by a fellow employee in the course of a discussion of a matter of mutual concern which went well beyond the issue of whether Willett might receive an extra $10 in pay. It involved a purport- ed contract violation and the erosion of unit work. This added feature of the Willett-Andrews confrontation serves to bring this case within the more restrictive con- struction given to Section 7 of the Act by the Sixth Cir- cuit in Aro, Inc. v. N.L.R.B., 596 F.2d 713 (1979). Ac- cordingly, I conclude that, by discharging Darryl Willett because he engaged in concerted protected activities, Re- spondent herein violated Section 8(a)(1) of the Act. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCIUSIONS O0 LAW 1. Respondent Southwest Detroit Hospital is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Local 79, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Darryl Willett because he engaged in concerted protected activities Respondent herein vio- lated Section 8(a)(1) of the Act. 4. The unfair labor practices recited above have a close, intimate, and substantial effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. Tmin REMEDY Having found that Respondent has committed certain unfair labor practices, I will recommend that it be or- dered to cease and desist therefrom and take other ac- tions designed to effectuate the purposes and policies of the Act. The recommended Order will provide that Re- spondent be required to reinstate Darryl Willett to his former or substantially equivalent employment and to make him whole for any loss of earnings which he may have suffered by reason of the unlawful action found herein, in accordance with the Woolworth formula5 and with interest thereon at the adjusted prime rate used by the Internal Revenue Service for tax payments. Florida Steel Corporation, 231 NLRB 651 (1977); Isis Plumbing & Hleating Co., 138 NLRB 716 (1962). I will also recom- mend that Respondent be required to post a notice advis- ing its employees of their rights and of the remedy in this case. [Recommended Order omitted from publication.] ' I 1 14Hilgrortlr (omputn', 9) NlRB 289 (1'5))