Montgomery Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Hospital and Jo-Ann K. Ahlum. Case 4- CA-8309 November 22, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 16, 1977, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief' and the General Counsel filed a brief in response to Respondent's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Montgomery Hospital, Norristown, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent's request for oral argument is hereby denied as, in our opinion, the record in this case, including the exceptions and briefs, adequately presents the issues and positions of the parties. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This proceeding was heard at Philadelphia, Pennsylvania, on February 24, 1977, upon the complaint issued by the I Neither in its oral argument nor in its bnef does the Respondent reiterate a contention in its answer to the effect that the Board should not entertain junsdiction over this proceeding because the charge against Respondent was not served upon the Respondent until more than 6 months after the alleged unfair labor practice. At the outset of the heanng, Respondent argued that Ahlum was discharged on May 7, 1976, but that Respondent did not receive a copy of the charge until November 8, 1976. However, the record shows that the charge was filed on November 4, 1976, and placed in the mail by a Board employee on November 5, 1976. Sec. 102.113 of the Board's Rules and Regulations Series 8. as amended, provides that the date of mailing is the date of service Accordingly, when the copy of the charge was deposited in the mail on November 5, 1976, that was the date 233 NLRB No. 113 General Counsel on December 27, 1976, which complaint grew out of a charge filed on November 4, 1976, by Jo-Ann K. Ahlum, an individual, herein called Ahlum or the Charging Party. The complaint alleges, in substance, that the Respondent, Montgomery Hospital, discharged Ahlum for engaging in protected concerted activity in violation of Section 8(a)(1) of the National Labor Relations Act, as amended. In its duly filed answer, the Respondent denies the commission of any unfair labor practices and contends that Ahlum was discharged for cause and that the activity for which she was discharged was not protected concerted activity.' Before the hearing closed, the parties gave oral argument and thereafter filed briefs. Upon the entire record in this case, including the oral arguments and the briefs of the parties, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Pennsylvania corporation, is engaged at Norristown, Pennsylvania, in the business of providing hospital and medical services. During the calendar year immediately preceding the issuance of the complaint herein, the Respondent's gross volume of business exceed- ed $250,000. During the same period, in the course and conduct of its business the Respondent purchased goods of a value in excess of $50,000 from suppliers located outside the Commonwealth of Pennsylvania. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Facts From the date she was first employed on September 15, 1974, Jo-Ann Ahlum, a registered nurse, was assigned to the operating room staff of the Respondent on the shift which began at 3 p.m. and ended at 11 p.m. Although rated in November 1975, by her immediate supervisor, Susan Bader, as an efficient and capable operating room nurse, Ahlum's relationship with Bader was not a very happy one. Bader testified, without contradiction, that she had difficulty communicating with Ahlum and that she re- ceived complaints from other operating room staff indivi- duals that Ahlum was not always in the operating room as required during her shift. Bader further testified that Ahlum's setups, meaning the instruments and other upon which Respondent was served, and, therefore, the service was timely within the meaning of Sec. 10(b) of the Act. Additionally, although Respondent wrote a letter dated May 7, 1976, to the alleged discrinmnatee, Ahlum, discharging her as of that date, Ahlum did not receive this letter until May II11. Therefore, she did not learn of her discharge until that date. Accordingly, pursuant to Board precedent, Ahlum's date of discharge was May II and the 6-month limitation contained in Sec. 10(b) of the Act did not begin to run until that date. Even assuming service of a charge upon Respondent was not completed until May 8, the service was timely within the limitation of Sec. 10(b) by reason of the fact that Ahlum did not learn of her discharge until May II. See Alabaster Lime Compony, Inc., 194 NLRB 1116. 1118 (1972). 752 MONTGOMERY HOSPITAL operating room paraphernalia, were not always complete. Bader additionally testified that she worked during the day shift which began at 7 a.m. and ended at 3 p.m. whereas Ahlum worked the night shift in the operating room. At times, when Bader was not at work, but called the operating room during the evening shift, Ahlum failed to answer the telephone although Ahlum was not otherwise engaged. According to Bader, Ahlum spent too much time in the emergency room where she was not required or asked to be, and spent more time than allowed for her dinner breaks. However, although Bader testified to many of the foregoing deficiencies attributed by her to Ahlum, Bader admitted that she did not talk to Harry W. Gehman, the executive director and chief operating officer of the Respondent, about the alleged deficiencies but merely told Gehman that at times she had had difficulties in communi- cating with Ahlum. In addition to the foregoing, Ahlum had further difficulties with supervision in the hospital. One incident, not related to Gehman by Bader before Ahlum's discharge, concerned outdated surgical sponges. While on duty one evening, some time during the year before Ahlum's discharge, Ahlum discovered some surgical sponges which she felt had been sterilized at a date too early for safe use in surgery. Accordingly, she filled several trash bags with these outdated sponges and placed the bags on Bader's desk. When Bader came in the following morning, she discovered her desk covered with these bags of allegedly outdated sponges. Moreover, Ahlum at one time was accused of throwing instruments into the bone bin. However, none of these foregoing items were items which could be considered in any respect protected concerted activity inasmuch as they were concerned only in person- to-person relationships either between Ahlum and Bader or Ahlum and other operating room personnel. The only matter which could be considered protected concerted activity, which occurred before the final event leading up to Ahlum's discharge, took place almost 1 year before her discharge on May 6, 1976. Until May 1975, it was the policy of the Respondent, with regard to the female workers in the operating room, that if any of them became pregnant, during the first 3 months of pregnancy they could not work in the operating room but they were permitted to do so after that 3-month period. However, in May 1975, the Respondent changed its directive toward female operating room personnel who could be exposed to anesthesia gases in their daily duties and who were pregnant. The new policy was to temporarily transfer such personnel to another position for the duration of the pregnancy period. The operating room employees were asked to sign a statement to the effect that they understood the foregoing change in policy. This policy change did not mean a loss of job, or even pay scale, but merely meant a transfer out of the operating room to other duties during the pregnancy period. Nevertheless, Ahlum, along with other of the operating room personnel on all three shifts, felt that this was an imposition on their rights. It is conceded that Ahlum was the leader in the group which protested such change in policy. In assuming such leadership, Ahlum engaged an attorney who wrote a letter to Executive Director Gehman advising Gehman that he represented Ahlum and stating that, although Ahlum was not pregnant, it was apparent that there was a violation of her rights in being forced to sign a document as a condition for the continuation of her employment. The letter further stated that Ahlum would be willing to sign any necessary waivers in order to relieve the hospital of any liability which might result from working in the operating room and the inhalation of anesthesia gases during Ahlum's possible pregnancy. In addition to this letter from her attorney, Ahlum prepared and circulated a petition which stated that the signers of the petition had come to an understanding in their concern over the change in the pregnancy policy in the operating room and that they desired to have the option to sign a waiver releasing the hospital of responsibil- ity for any complications that might arise from the use of anesthetic gases in the operating room while such operating room personnel were pregnant. This petition was signed not only by Ahlum, but also by other operating room personnel, among them, individuals with whom the events leading up to Ahlum's discharge were concerned; namely, Kathleen O'Hara, and Nancy H. Wolfe. It should be noted, however, that this petition was sent directly to the attorney whom Ahlum hired and the Respondent was not presented with a copy of this petition. The record does not show when the Respondent became aware that the petition had been circulated and signed. We come now to the series of incidents which led to Ahlum's eventual discharge by letter dated May 7, 1976, which Ahlum received on May 11, 1976. For some time before late April 1976, an operating room technician, Debora Ptaszkowski, had been on maternity leave. Her child had been born some time before late April and by that date she had made contact with Ahlum and asked the latter to accompany her to speak to Respon- dent's personnel director, Walter H. Wenner, Jr., to ask Wenner to put Ptaszkowski back to work for three nights a weeks to assist Ahlum during the 3 to 11 p.m. shift until such time as Ptaszkowski's infant was of sufficient size to be taken care of by Ptaszkowski's husband so that Ptaszkowski could return to work full time. Ahlum consented, and the two proceeded on May 5, 1976, to visit Wenner at the latter's office in the hospital. Evidently, Ahlum acted as spokeswoman for Ptaszkowski who, although she did not testify at the proceeding herein, was evidently a rather shy or backward or timid individual. However, Wenner, although sympathetic to Ptaszkowski's situation, could offer her only two nights' work per week inasmuch as there was another individual, Nancy H. Wolfe, a nurse and instructor of operating room techni- cians, who was working three nights a week in the operating room. However, Wenner assured the two, Ahlum and Ptaszkowski, that Ptaszkowski would be eligible for hospitalization coverage even though only working 2 days a week. After leaving Wenner's office on May 5, Ahlum and Ptaszkowski proceeded to the latter's home where Ahlum made a telephone call to operating room employee Kathleen O'Hara, who was on her lunch break. Ahlum, in 753 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that telephone conversation with O'Hara, explained to O'Hara what had happened in Wenner's office, and that Ptaszkowski could not get her 3 days, that another girl was going to have them. Ahlum then asked O'Hara if the latter could speak to the other operating room personnel to see if there was anything they could do for Ptaszkowski. In testifying, Ahlum admitted that she used words to the effect that Ptaszkowski was "getting screwed" out of a job.2 Some time shortly thereafter, on the same day, O'Hara called Wolfe at the hospital, where the latter was preparing her lessons for the operating room technician's instructions with Harriet C. Emerson, the director of the Respondent's School of Operating Technology at the hospital. Although Emerson first picked up the telephone, O'Hara spoke to both Emerson and Wolfe, in turn. She told each of them substantially the same thing; namely, that Ahlum wanted to get the operating room employees behind Ptaszkowski because Wolfe was screwing Ptaszkowski out of a job. As noted, Ahlum in her conversation with O'Hara did not mention Wolfe's name, nor did Ahlum specifically mention that any individual in particular was "screwing" Ptaszkow- ski out of her job. It should be noted, also, that earlier that day, Ptaszkowski had called Wolfe and had told the latter that Ptaszkowski was the one who should be coming back to work for 3 days and that she, Ptaszkowski, was going to see Wenner. Evidently, this was before Ptaszkowski, accompanied by Ahlum, did speak to Wenner, as hereina- bove set forth. In any event, Wolfe was upset somewhat by Ptaszkowski's telephone call inasmuch as she had only reluctantly accepted the three evenings' operating room work from Bader, the supervisor of the operating room, inasmuch as Wolfe's principal work with the Respondent was as an instructor of operating room technicians. When O'Hara related this above telephone call first to Emerson and then to Wolfe, to the effect that Ahlum was accusing Wolfe of "screwing" Debbie out of a job, Wolfe became extremely upset and was unable to complete her work with Emerson in preparation for the instruction of operating room technicians on that day. Thereafter, on the same day, Wolfe met with Wenner, the personnel director, and related to him the telephone call she had received from O'Hara. Wolfe, in her conversation with Wenner, men- tioned the possibility of her resigning. On the following day, May 7, 1976, Emerson met with Executive Director Gehman and told him of Ahlum's telephone call as related to Emerson by O'Hara, and the effect it had on Wolfe. Immediately upon hearing of this, Gehman decided to discharge Ahlum. In testifying, Gehman stated that the call was Ahlum's responsibility and that because Wolfe had been so upset he told Emerson that he had had enough and made up his mind right there and then that he was going to discharge Ahlum. Later that same day, May 7, Gehman had a meeting with Personnel Director Wenner and Supervisor Bader and, after meeting with them, sent a registered letter to Ahlum terminating the latter's services. This is the letter which Ahlum received on 2 Although this conversation was related by O'Hara to operating room employees Wolfe and Emerson shortly thereafter and told them that Ahlum accused Wolfe of "screwing" Ptaszkowski out of a job, in her testimony O'Hara admitted that Ahlum did not use Wolfe's name nor did Ahlum ask O'Hara to organize the operating room employees to have Wolfe discharged to get Debbie the 3 days' work. Accordingly, I credit Ahlum's version of the conversation between Ahlum and O'Hara as substantiated by O'Hara. May 11 notifying her on that day of her discharge, a matter of which she had had no knowledge prior thereto.3 Ironically, shortly after hearing of Wolfe's being terribly upset and offering to quit, Ptaszkowski called Wolfe apologizing for what had happened. Wolfe, incidentally, did not quit. Also, even more ironically, within a very short period after the discharge of Ahlum, Ptaszkowski arranged for a full-time care for her infant and returned to the operating room as a full-time employee. Thus, out of the entire incident, no one was hurt except Ahlum. B. Discussion and Conclusions Counsel for General Counsel contends that Ahlum was discharged for engaging in protected concerted activity, and in support of this contention argues that when Ahlum sought to obtain the three nights' work for Ptaszkowski she was acting in concert with the latter in order to have the Respondent give Ptaszkowski the 3 days which the latter sought to work and that, therefore, Ahlum was engaged in such protected concerted activity. Counsel for the General Counsel points out, in support of this argument, that Gehman, by his own testimony, decided to discharge Ahlum when he heard of the latter's telephone call to O'Hara and O'Hara's telephone call to Wolfe in support of Ptaszkowski's desire to be placed back to work after her maternity leave on a three-night-a-week basis. Counsel for General Counsel points out that despite Ahlum's difficulty with her immediate supervisor, Bader, in November 1975 the latter gave to Ahlum a very satisfactory rating and appraisal on an official form of the Respondent and her only comment in derogation of Ahlum's work was to the effect that Bader sometimes had difficulty in communicat- ing with Ahlum because of the latter's "defensive attitude." However, this report followed all or most of the other differences which occurred between Ahlum and Bader. Accordingly, General Counsel concludes that Ahlum could only have been discharged for engaging in helping Ptaszkowski to induce the Respondent to give Ptaszkowski three nights' work per week and that this, therefore, was protected concerted activity and her discharge by Gehman constituted a violation of Section 8(a)(1) of the Act in that it interfered with the rights of employees provided by Section 7 of the Act. On the other hand, counsel for Respondent argues that Ahlum's activity, which resulted in her discharge, was merely the culmination of a series of misbehavior incidents on the part of Ahlum and that the Ptaszkowski-O'Hara- Emerson-Wolfe incident concerning the telephone calls was merely "the straw that broke the camel's back" and had nothing to do whatsoever with any protected concert- ed activity. Respondent argues that there was no concerted activity on Ahlum's part in that her activities were directed not at the Respondent but at other employees and, were, directed in effect, toward the injuring of the employment status of employee Wolfe. Respondent argues that there 3 Evidently, Ahlum had either not been working from the 7th to the I Ith or, having worked on a different shift from Gehman, was not apprsed personally of her discharge. In any event, it is established that Ahlum did not learn of her discharge until she received the registered letter on May I I. 754 MONTGOMERY HOSPITAL was no action, concerted or otherwise, directed toward the Respondent, in that nothing was asked of the Respondent either through Bader or any other management representa- tive. According to Respondent, no management member of the hospital was ever notified by Ahlum that Ptaszkowski should have Wolfe's job. Respondent argues that the conversation between Wenner, Ahlum, and Ptaszkowski on May 5 in Wenner's office contained no reference to the hospital's obligation to bring Ptaszkowski back or that she was entitled to the job held by Wolfe. Respondent claims that that meeting was merely to the effect that if Ptaszkowski did not get the part-time job she wanted she might have to seek work elsewhere. Respondent concludes its argument to the effect that when one employee seeks to have a group of other employees ban against a third employee this does not involve the employer and is not the type of conduct which the Act contemplates as protected because it is not for the mutual aid or protection of employees. I do not find merit in this contention. In the first instance, as heretofore noted, the telephone call made by Ahlum to O'Hara was for the purpose of having the operating room employees ban together to have the Respondent in some way adjust the hours of work in the operating room so that Ptaszkowski could obtain the three nights' work to which Ahlum and Ptaszkowski felt Ptaszkowski was entitled. It would seem that the only logical conclusion to this request by Ahlum to O'Hara was for group action by employees to have the Respondent eventually, through its management personnel, including Supervisor Bader, adjust the work hours of individuals in order to accommodate Ptaszkowski's request. It is true that Ahlum used the words "screwing Debbie out of a job." However, despite the fact that perhaps the language used by Ahlum was somewhat unfortunate, it nevertheless was language to induce O'Hara to encourage group action to have the Respondent take action. Accordingly, Respon- dent's argument that the matter was not directed toward Respondent, but merely toward other employees, lacks merit. Additionally, even Wenner's testimony as to what occurred on May 5 in his office between himself, Ahlum, and Ptaszkowski would indicate that what was desired was for the Respondent ultimately to give Ptaszkowski three nights' work and the mere fact that Ptaszkowski stated that unless she was given such work she would have to resign and go elsewhere to seek employment did not in any way detract from the fact that ultimately what was desired was an assignment of three nights' work to Ptaszkowski. Accordingly, the action taken by Ahlum after that meeting was in support of action to be taken by the Respondent. Additionally, the mere fact that only one other individual besides Ahlum was directly involved in the activity does not in any way detract from the fact that it constituted group activity to force the Respondent to take certain action. Accordingly, I find and conclude that, by Gehman's own words and his own testimony, Ahlum was discharged for seeking the reinstatement of Ptaszkowski to a three nights per week assignment in the operating room. I find, therefore, that the group action sought by Ahlum was group action to be directed toward the Respondent and that therefore it was concerted activity. Nor can I find from the record herein that Ahlum lost the protection of the Act because she sought Respondent's action to adjust the hours so that Ptaszkowski could be awarded the work the latter wanted, even though such award could possibly have meant some loss of hours to Wolfe. In coming to the foregoing conclusions, I have taken into consideration the earlier behavior of Ahlum, her difficulties with Bader, her leadership in the movement against the Respondent's change in policy with regard to the presence of pregnant employees in the operating room, the rather peculiar behavior of Ahlum in other respects, and the fact that Ahlum had been what might be termed a "guardhouse lawyer" and a thorn in the side of the Respondent's management personnel in a number of respects. Indeed, Ahlum was probably not an ideal employee or a charging party with whom one can readily empathize. Nevertheless, I find and conclude that despite all of this, Ahlum is entitled to the same protection as any other employee and that, accordingly, her discharge was, indeed, brought about because she engaged in protected concerted activity. And this is so even assuming, as stated by Gehman, that this was the straw that broke the camel's back. Nevertheless, but for her engaging in this activity, Ahlum would not have been discharged. All of her failings as an employee had not brought about her discharge until she engaged in the protected concerted activity. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with its operation described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY It having been found, as set forth above, that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, set forth below, designed to effectuate the policies of the Act. It having been found that the Respondent discriminato- rily discharged employee Jo-Ann Ahlum it will be recommended that the Respondent offer Ahlum immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges. In addition, it will be recom- mended that the Respondent shall make Ahlum whole for any loss of earnings she may have suffered by reason of the discrimination against her in conformity with the decision of the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 130 NLRB 716 (1962). 755 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW I. Montgomery Hospital is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging employee Jo-Ann Ahlum for engag- ing in protected concerted activity, Montgomery Hospital has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. On the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(b) of the Act, I hereby issue the following recommended: ORDER4 The Respondent, Montgomery Hospital, Norristown, Pennsylvania, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Discharging any employee for engaging in protected concerted activity within the meaning of Section 8(a)(1) of the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to form, join, or be represented by any labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity except that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized under Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Jo-Ann Ahlum to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges and make her whole for any loss of earnings which she may have suffered by reason of the discrimina- tion against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records and reports, and all other records and reports necessary to analyze the amount of backpay due under this Order. (c) Post at its hospital facility at Norristown, Pennsylva- nia, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said materials are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 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. 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, it has been decided that we have violated the National Labor Relations Act and we have been ordered to post this notice. WE WILL NOT discharge any of our employees for engaging in protected concerted activity or in activity which is directed to assisting any individual in obtain- ing reemployment after maternity leave or any other excused absence. WE WILL NOT in any other manner interfere with the rights of our employees under the National Labor Relations Act. WE WILL offer to recall and reinstate our former employee Jo-Ann Ahlum to the same position she held as an operating room nurse before we unlawfully discharged her and WE WILL make up all the pay she lost as a result of our discharging her together with interest from the date she was discharged. MONTGOMERY HOSPITAL 756