Norwalk Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOAR)D The Norwalk Hospital and Registered Professional Nurses Unit 23, Connecticut Health Care Associ- ates. Case 2-CA 15606 September 26, 1979 DECISION AND ORDER BY MEMBERS PENEI.O, MURPHY, ANI) TRUESl)AI.L On February 23, 1978, Administrative Law Judge Bernard Ries issued the attached Decision in this pro- ceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We adopt the Administrative Law Judge's conclusion that Respondent violated Sec. 8(aX3) of the Act. In so doing, we emphasize that the violation found herein is Respondent's refusal to consider fairly Weed's request for tuition reimbursement, rather than the actual refusal to grant the request itself. As found by the Administrative Law Judge, the record demonstrates the request would not likely have been granted in any event. In adopting the finding of a violation, we have considered also Respondent's exception that its conduct vis-a-vis Weed was motivated by "many difficulties" with her performance, including her unavailability for emergency duty. We have ex- amined carefully the record as a whole and are persuaded that in fact the reason why Respondent declined to consider fairly Weed's request was her involvement in protected activity. Indeed the credited testimony establishes that at the critical interview Dr. Irwin put it squarely to Weed that "confer- ences are rewards" for cooperative and faithful employees and that he con- sidered Weed an unfaithful employee because she went out on strike One could hardly find a more blatant expression of discriminatory motive that Irwin's observation on this occasion. 1 We shall modify par. (b) of the Administrative Law Judge's recom- mended Order so as to more closely conform to the 8(aX3) violation found herein. We specifically do not adopt the Administrative Law Judge's characteriza- tion, made in recommending a narrow cease-and-desist provision, that, in the instant case, "The discrimination, as these things go, was relatively slight and confined." Rather, we have considered this case in light of the standards set forth in Hickmort Foods, Inc.,. 242 NLRB 1357 (1979), and have concluded that a broad remedial order is inappropriate inasmuch as it has not been shown that Respondent has a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disre- gard for the employees' fundamental statutory rights. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent. The Norwalk Hospital, Norwalk, Connecticut. its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Substitute the following for paragraph (b): "(b) Discriminating against employees by refusing to evaluate fairly employee requests for tuition reim- bursement without regard to their union membership, sympathies, or activities." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NoICE To EMPI.OYEES PosI'El) BY ORDER OF THE NAII()NAI. LABOR R AI'IONS BOARD An Agency of the United States Government WE Wnl.l. NO.I threaten employees with loss of their positions and with imposition of more oner- ous conditions of employment for engaging in activity protected by Section 7 of the Act, nor disparage employees for engaging in such ac- tivity. WE WILL NO1 discriminate against employees by refusing to evaluate fairly employee requests for tuition reimbursement without regard to their union membership, sympathies, or activities. WI WILL NOI in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act. THin NORWIALK HSPITAL DECISION S1AIrEMENI OF ITHE CASE BERNARD RIES, Administrative Law Judge: In the pre- sent case, heard in Bridgeport, Connecticut, on December 7, 1978,' the General C'ounsel has alleged that Respondent's agent threatened two employees on two occasions in March, thus violating Section 8(a)(1) of the Act, and then unlawfully discriminated against one of them in April, thereby transgressing Section 8(a)(3).' The General Counsel and Respondent have filed briefs.3 'All references here are to the ear 1978, unless otherwise specified. 2 Jurisdiction is established by the complaint and the answer thereto, as is the status of the Charging Party as a labor organization within the meaning of the Act. Errors in the transcript have been noted and corrected 245 NLRB No. 57 418 THE NORWALK HOSPITAL Registered Professional Nurses Unit 23, Connecticut Health Care Associates, is the bargaining representative of the registered nurses at Norwalk Hospital. On March 4, negotiations for a bargaining agreement having resulted in a stalemate, the registered nurses went on a week-long strike. Philomena Weed and Margaret Anderson, the only regis- tered nurses in Respondent's radiology department. 4 joined the strike. On Monday, March 6, their first scheduled work- day after the strike began. Weed and Anderson received telephone calls at home from Dr. Gerald Irwin, chairman of the radiology department. The complaint alleges that, in the course of speaking to the two, Irwin "threatened [them] . . .with loss of their positions in Respondent's Radiology Department" because they participated in the strike. Weed testified that when Irwin called, he asked if she was coming to work. She answered in the negative, saying that she was on strike. Irwin then said "no one that goes on strike could work for him. And if I went on strike I could not work for him." Anderson testified that when Irwin called her on that same morning, and was told that she was joining the strike, he said, "[T]hen you are transferred." Irwin virtually admitted the substance of the foregoing testimony. He testified that, in these conversations, he had expressed his "disappointment" at the decision made by the two nurses, noting his belief that their "professional . . . duty was to the patients in our department who needed care," and had told each one that he "would hope that when she came back that she would be reassigned from our department." Weed and Anderson were impressive witnesses. While Irwin also seemed a responsible citizen, I am inclined to prefer the testimony of Weed and Anderson that he ex- pressed something more than an abstract "hope." The evi- dence shows, and Irwin admits, that when the two returned from the terminated strike on March 13, Irwin was the pro- cess of making an effort to have them transferred to another department, an attempt which was foiled by Respondent's counsel. The open-ended threats to remove Weed and Anderson from their positions, conceivably to some less desirable em- ployment, uttered at the commencement of the strike, plainly "tend[edj to interfere with the free exercise of em- ployee rights under the Act." N.L.R.B. v. Illinois Tool Works, 153 F.2d 811. 814 (7th. Cir. 1946). Accordingly, I find the violations as alleged. The complaint further charges that Respondent violated Section 8(a)(1) on March 13 when Irwin "threatened to im- pose more onerous terms and conditions of employment" on Weed and Anderson. Moments after Irwin's March 13 attempt to effect the reassignment of Weed and Anderson had been aborted, as noted above, Irwin said to the two of them, according to Weed: [W]e were aware of Dr. Irwin's feelings toward the strike and that things would be unpleasant for us in the department and that he was sure that in about six months we would be asking for a transfer. I asked Dr. 4Weed works a fulltime schedule and Anderson works 2 days a week Irwin would he make it unpleasant and he answered, I'll try. Anderson's version of these remarks differed: "[TIhat we were aware of his feelings and that he suggested that we should transfer to a more pleasant environment." While Ir- win could "[niot precisely" recall his words, he "think[s] I expressed the fact that I was still disappointed in their reac- tion. That I had hoped they would get reassigned, but that this apparently was not the terms of the settlement and that I was willing to abide by that as I obviouslN, had to, and that they should get back to work." Although the accounts given by Weed and Anderson di- verge, they make out, in their primary elements, the threat alleged. Thus, even Anderson's version-an allusion by Ir- win to his antistrike "feelings," coupled with his suggestion of the employees transferring to a "more pleasant environ- ment" from one which had not. apparently, theretofore been unpleasant-implies that the nurses could expect an unhappy future. As between Weed and Anderson on the one hand and Irwin on the other, I simply do not believe that the two nurses fabricated out of whole cloth the refer- ences to the nature of the environment and to the subject of transferring, as Irwin's testimony would indicate. As be- tween Weed and Anderson. I had the impression that the former would be more likely than the latter to remember the conversation in its full dimension. Consequently, I credit Weed, as corroborated by Anderson, and conclude that Irwin uttered the threat as alleged in the complaint. Finally, the complaint alleges that Respondent. through the agency of Irwin, violated Section 8(a)(3) on April 17 by "den[ying] the application of Philomena Weed for reim- bursement of registration fees for a nursing conference scheduled in June 1978." In April, Weed learned that a 2-day conference on nurs- ing management was to be held by the University of Con- necticut in June. She thought "it would be interesting to go," and she asked Unit Manager Jack Amodeo if the radi- ology department would underwrite the $330 tuition cost. Amodeo said he would have to speak to Irwin. Subse- quently, Amodeo told her that Irwin had denied the re- quest, and Amodeo said, "Don't quote me, Phil, but Dr. Irwin considers you uncooperative." She then went to see Irwin. who refused to grant the request: And he said conferences are rewards, and I'd been un- cooperative and an unfaithful employee and he also brought up the fact that I wouldn't come in for emer- gency calls .... [S]o he also said that ... he considered me an unfaithful employee because I went on strike. Irwin testified, in pertinent part, about the interview: IS]he wanted me to give her some money for this. I was taken aback because I assumed this was taken care of through the nursing department and I explained to her that our monies, to the best of my knowledge, did not cover nurses in our department. That we had, on occa- sion, sent a few technicians, either asked them to take a course, or go to a meeting, or suggested they do. I told her that the selection of who went on these things was to a certain extent based on merit and service to the I Stipulaled to be a statutory supervisor 419 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department, and I told her that I didn't feel her per- formance certainly warranted any incentive of this sort and I denied it to her denied that I would be able to give her any monies. So far as the record shows, the radiology department had never previously made funds available for the purpose re- quested by Weed to nurses assigned to that department. However, to the extent that Respondent argues that Irwin was incapable of granting Weed's request, and therefore could not have, and would not have. effectively denied it. for bad reasons or good, the evidence indicates otherwise. Even on Irwin's version of the conversation, set out above. while he purportedly began by saying, "to the best of [his] knowledge," that radiology' department monies did not "cover nurses in our department," he went on to imply strongly that the provision of funds was within his discre- tion, by telling Weed that her performance did not warrant any incentives. Irwin testified that he controls the budget for the radiology department (in which some 60 employees work), and that whether monies are paid out of the budget is "a matter of [his] own discretion." The undenied facts that unit manager Amodeo consulted Irwin about the re- quest, and that Amodeo relayed Irwin's denial, rather than a statement by Irwin of incapacity, suggest that Amodeo and Irwin both believed that funds were at least theoreti- cally available for the conference. Respondent predicates the foregoing argument, in part, on the bargaining agreement executed in March. It contains the following provision: PROFESSIONAL MEETINGS Section A: Subject to the needs of the Hospital and with prior approval from the Hospital, Registered Pro- fessional Nurses will be granted time for participating without loss of pay in such educational institutes. workshops, and other professional meetings as may be deemed by the Chairman of the Department of Nurs- ing, or her designee, to be important for the improve- ment of the individual Registered Professional Nurse's professional competence and on-the-job performance. Respondent contends that this provisions "defines the type and extent of reimbursement allowed for conferences, and it does not include reimbursement for registration fees of the type sought by Mrs. Weed." I do not read the clause, however, as a prohibition against the grant of additional allowances if Respondent should see fit to give them. Cer- tainly, Irwin was not influenced by this provision: he testi- fied that he was not even aware of its existence until the day of the hearing. In view of his conceded "discretion" with regard to the allocation of the radiology department bud- get, it does not appear inconceivable that he might have exercised that discretion in favor of bestowing some lar- gesse on one of his employees. I credit Weed's testimony that Irwin told her, inter alia, that he considered her "an unfaithful employee because [she] went on strike." I further find that Irwin considered himself authorized to, and was in a position to, award Weed the requested tuition reimbursement, and in fact did not rule out that possibility.? It follows, therefore, that Irwin's refusal to afford Weed's request a fair evaluation, moti- vated, at least in part, by her union activity, constituted "discrimination . .. to . . . discourage membership" in a labor organization, within the meaning of Section 8(a)(3). The vice here was that Weed did not receive "an appraisal free of discrimination," Brown & Root-Northrop. 177 NLRB 1, 8 (1969), "a fair and impartial evaluation ... divorced from consideration of [her] union activities," Grant's Home Furnishings, Inc.. 218 NLRB 757, 768 (1975). Moreover, by telling Weed that he considered her an "unfaithful em- ployee because [shel went on strike," in the given context, Irwin also violated Section 8(a)( 1). The remedy appropriate to the violation in the uncom- mon circumstances presented here is open to question. In a proposed notice attached to his brief, counsel for General Counsel asks that Respondent be required to offer Weed "an opportunity to attend the next locally scheduled confer- ence or seminar on nursing management or a substantially equivalent conference or seminar important for the im- provement of her professional competence and on-the-job performance, and .... to the extent economically feasible, reimburse her for costs actually incurred in connection with her attendance at said conference or seminar." While I have found that Respondent violated the Act by failing to afford Weed the unprejudiced evaluation to which her request was entitled, I am loath to conclude, in the circumstances of this case, that she likely would have had her request ultimately approved if Irwili had relied solely on legitimate considerations. Unlike cases of discharge or discipline in which it may be said that affirmative employer conduct would not have been undertaken had it not been for the employee's protected activity, these cases of discre- tionary inaction are more problematical. Thus, in Brown & Root-Northrop, supra. where it was found that two employ- ees received discriminatory evaluations for merit increases, the Trial Examiner refused the General Counsel's request that they be awarded backpay as a matter of right, saying (177 NLRB at 9): However, in my opinion, the matter of whether either or both of them would have received merit increases absent discrimination,'7 and the exact amount of such merit increases. may more appropriately be ascer- tained at the compliance stage of this proceeding. ' The Respondent does not award such increases automatically. This approach was followed in Grant's Home Furnishings, Inc., supra, 218 NLRB at 768. The circumstances here are unusual. The case does not involve a routine personnel action, imposition of discipline, refusal to grant promotions or increases, which might be judged by familiar standards; it concerns, instead, the de- nial of a request by an employee that the employer make available to her an almost unprecedented gratuity. While an employer is obliged by law to entertain only legitimate 6The parties have not briefed the issue of whether such a grant would have constituted unlawful individual bargaining. Since the matter never got any further than Irwin's denial of the request, it is appropriate to assume that had Irwin been favorably inclined toward the request, proper bargain- ing with the Union would then have been undertaken. While not specifically pleaded as such, the issue was fully litigated, and the finding is warranted. 420 THE NORWALK HOSPITAL. considerations in appraising such a request, its peculiar na- ture justifies closer scrutiny of whether. in the normal course of events, the employee "would have received" the gratuity. Keller Columbus, Inc., 215 NLRB 723, fn. 2 (1974). A number of factors here suggest that even if Irwin had viewed Weed's request with the dispassion required by the statute, instead of precluding such a proper evaluation at the threshold by taking into account her strike activity, the request would likely have been denied. As indicated above, the funding sought was virtually unprecedented in nature: Irwin had never authorized a nurse to take such a course.8 The conference does not seem to have been particularly pertinent to Weed's duties. "Nursing management" was not intimately connected with Weed's functions; while she "thought it would be interesting to go," the apparent imma- teriality of the conference to Weed's own work was implicit in her testimony, "Well, I don't think that every conference that a nurse goes to has to relate specifically to her job, I think, as long as it encompasses the profession of nursing." Even if Irwin had given the request the objective appraisal required by law, it seems doubtful that the nature of the conference, bearing only a remote relationship to Weed's duties, would have commended itself to Irwin as meriting an expenditure of $330 for a 2-day meeting. Again assuming a legitimate review by Irwin, it is ques- tionable whether, in the light of their prior relationship, Irwin would have honored Weed's request for this unusual exercise of discretion. Irwin was unhappy about the fact that, for some time, Weed had been refusing to accept calls to duty for emergency cases outside of her regularly sched- uled hours, on the ground that she should receive on-call pay if she was required to be available at such times. Irwin also testified about "many difficulties" of other varieties he had encountered with Weed's performance: the specifics given by him were not contradicted. This background of interpersonal problems is another factor tending to show that even if Irwin had considered Weed's request with the objectivity demanded by law, it is improbable that he would have been disposed to take the extraordinary action sought. Still another variable in the mix is the contract clause quoted above. It appears that Irwin was not aware of it at the time Weed submitted her request. It may reasonably be contended that even had Irwin tentatively approved the re- quest, further processing of it would have led to the discov- ery of the clause, and Irwin, or other management author- ity, might well have withdrawn the approval, asserting that the clause occupied the field of compensation for confer- ences. The objective of remedial relief under Section 10 is to restore the situation to that which would have existed ab- sent the forbidden discrimination. Sometimes, when the employer's action has made impossible or speculative any determination of what the status quo would have been. the Board will resolve doubts in favor of the victim of the un- fair labor practice. In cases like the present one, however. there can be a finding of discrimination which does not resolve "the matter of whether either or both of them would s His testimony about having sent "a few technicians" in the past makes it appear that this had always been at the Respondent's initiative. have received merit raises absent discrimination," Browsn & Root-Northrop. supra, and the surrounding circumstances must be evaluated. In this case, it seems to me that the circumstances cast sufficient doubt on the claim that. absent discrimination, Weed's unusual request would likely have been approved, and those circumstances warrant confining the remedy to a cease-and-desist order. I would note that this conclusion is not inconsistent with the violation found. The theorN underlying the violation is that by improperly taking into consideration at the thresh- old of his deliberation the factor of Weed's strike activity, Irwin made it impossible to give the request the fair evalu- ation mandated by the Act. That conclusion does not, how- ever, settle the question of what would have occurred "ab- sent discrimination." as outlined above.) CoNCL tSIONS OF LAW I. The Norwalk Hospital is an employer engaged in commerce and a health care institution within the meaning of the Act. 2. Registered Professional Nurses Unit 23, Connecticut Health Care Associates. is a labor organization within the meaning of the Act. 3. By threatening employees, on March 6, 1978. with loss of their positions in Respondent's radiology department; by threatening employees on March 13, 1978. with the imposi- tion of more onerous terms and conditions of employ ment: and by disparaging an employee for engaging in protected activity, on or about April 17, 1978, Respondent violated Section 8(a)( 1) of the Act. 4. By refusing, on or about April 17, 1978, to fairly evaluate an employee request for tuition reimbursement, Respondent violated Section 8(a)(3) of the Act. 5. The above-described unfair labor practices affected commerce within the meaning of the Act. THi RIMEI)Y Appropriate remedies here include an order requiring Respondent to cease and desist from the unfair labor prac- tices found and the posting of traditional notices. I have concluded that Respondent. through Irwin's agency. has violated Section 8(a)(3). Under normal Board standards, that conclusion would ordinarily suggest entry of a "broad" cease-and-desist order, proscribing the commis- sion of violations in "any manner." I have given some thought to recommending a "narrow" order, limiting the ban to "like or related" violations, on the particular facts presented. The discrimination, as these things go, was relatively slight and confined: Irwin's refusal to consider Weed for an "extra," to use General Counsel's word, had no momentous impact on the bargaining relationship or employee rights. Irwin appears to have been something of a loose cannon: 9 Although the complaint alleges that Respondent "denied" Weed's appli- cation because of her protected activities, I cannot. as in Grant'S Holme Fur- nishings, supra, conclude that she would hase been granted her request in the absence of such activities 218 NLRB 768. tn 21 The conclusion that she was discriminated against bh being refused a fair evaluation because of those activities is, hoseser, within the scope of the pleadings hid 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there is no evidence of any other improper conduct by Re- spondent, or any deepseated hostility on the part of Re- spondent toward the Union. Irwin's behavior, moreover, does not appear to have been rooted in general notions of opposition to collective activity or a desire to improve the economic position of Respondent at the expense of the statutory rights of the employees. He was, I believe, primar- ily motivated by what he conceived of as a betrayal of pro- fessional obligation by the employees: my guess is that Weed and Anderson so understood. That is no defense, but it was a mitigating effect. In a similar case, Harvey Probber, Inc., 146 NLRB 683, 689 (1964), where the employer was found to have discrim- inatorily denied to leave of absence to a union steward, the Board held that since the employer's conduct "neither goes 'to the very heart of the Act' (Cf. N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532 (4th Cir. 1941) nor reflects a flagrant disregard for the Act, a sweeping reme- dial order is not justified." See also The Washington Post Company, 229 NLRB 490, 498 (1977), entering a narrow order in the presence of technical Section 8(a)(3) and (1) findings. For the reasons outlined here, I conclude that a broad order is not an appropriate remedy for the violations found. On the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER'0 The Respondent, the Norwalk Hospital, Norwalk, Con- necticut, its officers, agents, successors, and assigns, shall: 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 1. Cease and desist from: (a) Threatening employees with loss of their positions and with imposition of more onerous conditions of employ- ment for engaging in activity protected by Section 7 of the Act, and disparaging employees for engaging in such ac- tivity. (b) Discriminating against employees for engaging in ac- tivity protected by Section 7 of the Act. (c) In any like or related manner, interfering with, re- straining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist labor or- ganizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post at its facility in Norwalk, Connecticut, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Re- gion 2, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon re- ceipt thereof. and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 11 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Ltabor Relations Board." 422