The Reading Hospital and Medical Center

READING HOSPITAL AND MEDICAL CENTER The Reading Hospital and Medical Center and Dis- trict 1199P, National Union of Hospital and Health Care Employees, a Division of RWDSU, AFL- CIO. Case 4-CA-7237- October 27, 1976 - DECISION AND ORDER. BY CHAIRMAN MURPHY AND MEMBERS- FANNING AND PENELLO On May 27,1976, Administrative Law Judge Alvin Lieberman issued the attached Decision-in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a reply 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section -10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, The Reading Hospital and Medical Center, Reading, Pennsylvania, its offi- cers, agents, successors, and assigns, shall take the action set forth in said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge , It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The hear- ing in this proceeding, with all parties except the Charging Party represented, was held before me in Reading, Penn- sylvania, on January 12 and 13, 1976, upon the General Counsel's complaint dated October 31, 1975,1 and Respon- 1 The complaint was issued pursuant to a charge filed on February 4, 1975 611 dent's 2 answer. In general, the issue litigated was whether Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended (Act)? More particularly, the questions for decision are as follows: -- 1. Did Sheila Rea, while employed by Respondent, en- gage in conduct falling within the protection of Section 7 of the Act? 2. Assuming an affirmative answer to the foregoing question, was Rea discharged in violation of Section 8(a)(1) of the Act because she engaged in such conduct? Upon the entire record, upon my observation of the wit- nesses and their demeanor while testifying, and having tak- en into account the arguments made and the briefs submit- ted,' I make the- following: FINDINGS OF FACT - I. JURISDICTION Respondent, a Pennsylvania corporation, is engaged at Reading, Pennsylvania, in the operation of a hospital. Dur- ing 1974 Respondent's gross volume of business exceeded $250,000. In the same period Respondent purchased goods valued at more than $50,000 from vendors located outside the Commonwealth of Pennsylvania. Accordingly, I find that Respondent is engaged in commerce within the mean- ing of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (Board) is warranted. II. INTRODUCTION Briefly, this case is concerned with Respondent's suspen- sion and discharge of Sheila Rea, an operating room tech- mcian (ORT). The complaint alleges that Rea was sus- pended and discharged "because [she] engaged in concerted employee, activities for the purpose of opposing the discontinuance of Respondent's surgical residency pro- gram." Rea's conduct in this regard, the General Counsel asserts, was protected by Section 7 of the Act. Accordingly, he argues, Rea's suspension and discharge were violative of Section 8(a)(1). Respondent contends that Rea's conduct was neither concerted nor, if concerted, protected. Furthermore, it is Respondent's position that Rea was discharged for cause; namely, her threat to write a letter to a newspaper which Respondent had reason to believe would have disparaged its hospital, her-excessive absenteeism, and her bad work habits. 2 The name of Respondent appears as amended at the hearing 3 This section provides Sec 8(a). It shall be an unfair labor practice for an employer- - (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, Sec 7, insofar as relevant, states Sec 7. Employees shall have the right to engage in concert- ed activities for the purpose of collective bargaining or other mutual aid or protection 4 Although all the arguments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at hearing, may not be discussed in this Decision, each has been carefully weighed and consid- ered 226 NLRB No. 99 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. PRELIMINARY FINDINGS AND CONCLUSIONS 5 A.` The Surgical Residency Program and Respondent's Operating Room Personnel Under the control of the American College of Surgeons, the American Board of Surgery, the Council on Medical Education, and, the American Medical Association, there was in Respondent's hospital at all material times a surgi- cal residency program (program) in which physicians, known as surgical residents, participated. Its purpose was to train surgeons. Early in 1975 the foregoing organizations decided that the program should be discontinued` in July 1975. At all relevant periods there were 14 operating rooms in Respondent's hospital, almost all of which were in use si- multaneously. While surgical procedures were carried on in these rooms, there were present in addition to the surgeon performing the operation, nurses 6 and, when available, a surgical resident. In this connection, it was estimated by Nancy Feeg, an operating room supervisory nurse, that about "90 percent of the operations [performed] during the [existence of] the residency program were carried on with- out assistance by a surgical resident." In the absence of a surgical resident, as Feeg further testified, it was sometimes necessary when an emergency arose during a surgery for an ORT to do things ordinarily done by a surgeon, including "[slipping] a catheter [and making] suture . . . if the physician's hands [were] tied up. B. The Nature of Sheila Rea's Activities On January 26, 1975,7 while ORT's, including Sheila Rea,' in Respondent's employ were in the nurses' lounge preparing to go to lunch, they learned that the surgical residency program would be abolished in July. All ex- pressed their displeasure over the impending discontin- uance of the program. Among the things they were con- cerned about was the effect the termination of the program would have on their work. In this respect, Lea testified, she posed the-question of "what would happen in cases of an emergency when very major surgery came in, who would take over to assist the surgeon, if the resident was not there?" Concerning this, Rea and other ORT's feared, as Rea further testified, that in the absence of a surgical resident during "major surgery [ORT's] might have to go out of the realm of nursing and enter into the realm of practicing medicine [by being re- quired to place] a suture during surgery, [inserting] a cath- eter [, or] put[ing] on -a temporary clamp" to restrain bleed- ing. The ORT's continued to talk about the foregoing mat- ters on their way to, and during, lunch. One suggested cir- culating a petition in the hospital in the hope that this would result in saving the program. Rea stated, as Marsha Doermann, an ORT present at the foregoing discussion, testified, that "maybe a letter [to a newspaper] might help," and that she "intended to write such a letter." 9 After lunch on January 26 Rea asked a surgeon, Dr. Ronald Romig, "if," as she recounted, "a petition . . . to the proper authorities . . . would be of any effect to keep the residency program established." Romig replied, Rea related, that "he didn't think so because the decision [to abolish the program] had already been made and he didn't think it would be reversible." Having received this advice from Romig, Rea did not circulate a petition, nor did she ever write a letter to a newspaper concerning the program's termination. Not- withstanding this, ORT's, including Rea, continued that day and on the next day or two to talk about the discontin- uance of the program and the effect it would have on their duties. Respondent contends that Rea did not engage in any activity after the ORT's were informed of the abolition of the surgical residency program that was either concerted or, if concerted, protected. I do not agree. Concerted activity within the meaning of Section 7 of the Act requires "only a speaker and a listener." Salt River Valley Water Users' Association, 99 NLRB 849, 853 (1952), enfd. in this respect 206 F.2d 325 (C.A. 9, 1953). Here the activity was engaged in by several speakers and listeners, all of whom, including Rea, were involved in discussing the effect the termination of the program would have on their work. Therefore, rejecting Respondent's contention that Rea did not participate in concerted activity, I find that she did so. Respondent next argues, on two fronts, that Rea's activi- ty, if concerted, was not protected by the Act. In this re- gard Respondent first contends that it had no control over the object of the ORT's concerted activity-the retention of the program. For this reason, Respondent states on brief, "concerted activities directed toward matters over which the employer has no control, do not fall within the protection of the Act." Respondent's second point is that, the termination of the program would have no impact on the work of the ORT's in the area as to which concern was expressed; namely the enlargement of the ORT's nursing duties to encompass 5 The purpose of these findings and conclusions is to furnish a frame of reference within which to consider the facts relating to Respondent's alleged unfair labor practices and to the conclusions to which they may give rise To the extent that the contentions of the parties relate to the findings and conclusions made here they will be treated here, although they, as well as the findings and conclusions , may again be considered in other contexts 6 Operating room nurses are classified by Respondent as operating room technicians (ORT's) r All dates hereinafter mentioned without stating a year fall in 1975 B Rea 's later suspension and discharge are alleged in the complaint as having been violative of Sec. 8(a)(1) of the Act 9 Rea denied saying that she intended to write to a newspaper about the abolition of the program Her denial, however, is contrary to the weight of the evidence and is not credited My not believing Rea in this respect should not be taken as an indication by me that she was an untrustworthy witness The contrary is the case Rea demeaned herself well on the witness stand and impressed me generally as being credible Findings have already been made on the basis of her testimony and additional findings will be made on the same basis "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it , nothing is more common in all kinds of judicial decisions than to believe some and not all " N L R. B v Universal Camera Corporation, 179 F 2d 749, 754 (C A 2 , 1950), reversed on other grounds 340 U S 474 (1951) READING HOSPITAL AND MEDICAL CENTER functions more properly performed by a surgeon . This lack of impact on their working conditions, Respondent argues, likewise deprives the concerted activity engaged in by Rea and other ORT's of the Act's protection. Assuming the validity of the premises on which the fore- going arguments are based , they are, nevertheless , not well taken. That Respondent had no -control over the retention of the program or that its abolition would not have re- quired ORT's to do more than they were doing during the program's existence are not determinative of the nature of the concerted activity here carried on. Neither its futility in achieving the retention of the program nor Rea's mistaken belief that the discontinuance of the program would result in ORT's having to perform duties not within a nurse's competence are detractive of the protection afforded by Section 7 of the Act to the concerted activity engaged in by Rea and other ORT's "for the purpose of [their] mutual aid" in matters related to their work. It is well settled that the "reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination of whether" such activity is protected by the Act. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 16 (1962). Similarly, the Court held in an earlier-case N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 344, that "the wisdom or unwisdom of [employees ], their justifica- tion or lack of it" has no bearing on the question of wheth- er they are exercising rights guaranteed in Section 7 of the Act. "To hold otherwise," the Board stated in Ben Pekin Corporation, 181 NLRB 1025 (1970), enfd. 452 F.2d 205 (C.A. 7, 1971), "would severely curtail employees' rights to act on behalf of themselves and their fellow employees." Accordingly, I conclude that the activity engaged in by Rea and other ORT's, including Rea's statement that she intended to write a letter to a newspaper concerning the termination of the surgical residency program,10 was both concerted and protected by the-Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Concerning Respondent's Alleged Violations of Section 8(a)(1) of the Act Sheila Rea, a licensed practical nurse, was hired by Re- spondent in October 1970 and assigned to work as an ORT. She was suspended on January 30, 1975, and dis- charged- on February 10. As already noted, Rea's suspen- sion and discharge are alleged in the complaint as having been violative of Section 8(a)(1) of the Act. Rea was not a model employee. She was frequently ab- sent and shirked unpleasant duties. As set forth above, on January 26, 1975, Rea and other ORT's learned of the forthcoming termination of the surgi- cal residency program. During their ensuing discussion on that day concerning this matter Rea stated that she intend- ed to write a letter to a newspaper regarding the program's abolition. Beyond saying that such "a letter might help," Rea did not further elaborate on her statement. Nor does it appear 10 Cf Walls Manufacturing Company, Inc, 137 NLRB 1317, 1318-19 (1962), enfd 321 F 2d 753 (C.A.D C., 1963), cert denied 375 U.S 923. 613 that she told anyone at any time what she planned to in- clude in the letter. At one point in the discussion by the ORT's in the nurs- es' lounge on January 26, concerning the program's termi- nation, Rea remarked, as Joan Herb, a head nurse, testi- fied, that Respondent's hospital was "a terrible place to work" and referred to it as "this G.D. place." On January 28, Rea's statement that she intended to write a letter to a newspaper concerning the discontin- uance of the program was reported to Dr. Herbert John- son, Respondent's acting director of surgery. Fearing that Rea's letter would be derogatory of the hospital, Johnson told Ronald Schwartz, Respondent's administrative assis- tant for surgical services, that Rea should be directed not to write the letter. Johnson also asked Nancy Feeg, an op- erating room supervisor, to try to dissuade Rea from writ- ing the letter. Following his conversation with Johnson, Schwartz in- formed Thomas Seabourne, Respondent's personnel direc- tor, of Rea's stated intention to write the letter and suggest- ed that Rea be disciplined. Seabourne agreed. Accordingly, on January 30, Rea was suspended. The next day Rea received a letter from Seabourne di- recting her to appear in his office on February 3 for a suspension interview. The interview, which was held as scheduled, consumed about an hour. A susbstantial portion of this time was giv- en over to Rea's discussion with other ORT's concerning the discontinuance of the surgical, residency program, Rea's opposition to its termination, and her statement that she intended to write to a newspaper. Other subjects were also covered, including Rea's absences and her objection, voiced about a month earlier, to the installation of a chandelier in the hospital's lobby. On February 10, Rea was discharged by Seabourne, Re- spondent's personnel director. Seabourne testified, that "enter[ing] into [his] decision to discharge ... Rea [was her] threat to write the letter to the newspaper." Respon- dent's other reasons for terminating Rea's employment, as stated in its beef, were her "record of bad absenteeism and bad work habits." B. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of Section 8(a)(1) of the Act "[T]he existence of valid grounds for punitive action [against an employee] is no defense unless such action was predicated solely on these grounds and not by a desire to discourage protected activity." 11 This is the situation here. Obviously, Rea's discharge would not have been viola- tive of the Act had it been based solely on her absences and bad work habits. N.L.R.B. v. T. A. McGahey, d/b/a Columbia Marble Works, 233 F.2d 406, 413 (C.A. 5, 1956). But, as made clear by the testimony of Thomas Seabourne, .Respondent's personnel director, Rea's stated intention of writing a letter to a newspaper concerning the abolition of 11 N L.R.B v Fairview Hospital, 443 F 2d 1217, 1219 (CA 7, 1971). See also N L R B v- Whitin Machine Works, 204 F.2d 883, 885 (C A 1.) 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the surgical residency program was also taken into account in terminating her employment. Having found that this statement fell within the Act's protection, I further find that Rea's discharge contravened Section 8(a)(1) of the Act. Inasmuch as Rea's earlier suspension followed hard on the heels of her announcement that she intended to write the letter, I find, additionally, that the suspension was like- wise violative of Section 8(a)(1) of the Act. N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829. In making these findings I, have carefully considered, and rejected, Respondent's argument that, as,it states on brief, it "feared being disparaged by ... Rea's letter to the newspaper" and that "there was,good cause . . . to believe that [in her letter Real would exceed the bounds of proprie- ty and work against the interests of the Hospital." In sup- port of this contention Respondent points to Rea's remarks in the nurses' lounge, while she and other,employees were discussing the termination of the program, that the hospital was a "G.D. place" and a "terrible place to work." However, these comments were made in camera, so to speak, and there is no evidence showing that Rea intended to include them in the letter she said she would write to the newspaper. Nor is there any evidence establishing how Rea would have couched her letter had it actually been written, which is not the case. In these circumstances Respondent's reliance in suspending and discharging Rea upon its,fear of "being disparaged by .. . Rea's letter" and upon its belief that Rea's letter would have "work[ed] against the interests of the hospital" does not serve to justify Rea's suspension or dishcarge.12 Accordingly, I conclude that by suspending and dis- charging Rea Respondent violated Section 8(a)(1) of the Act. ment to Rea and to make her whole for any loss of earn- ings she may have suffered by reason of her unlawful suspension and discharge. Any backpay found to be due to Rea shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest in the amount and manner pro- vided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning, of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. , - 2. The conduct engaged in by -Sheila Rea in connection with the termination of the surgical residency program at Respondent's hospital, including her statement of intention to write a letter to a newspaper in that regard, fell within the protection of Section 7 of the Act. 3. By suspending and, discharging Sheila Rea for engag- ing in conduct referred to in Conclusion of Law 2, above, Respondent has engaged in, and is engaging in, unfair la- bor practices within the meaning of Section 8(a)(1) of the Act. 4. The unfair labor practices engaged in by Respondent, as set forth in Conclusion of Law 3, above, affect com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 V. THE,BFFECr OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices engaged in by Respondent, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent violated Section 8(a)(1) of the Act by suspending -and discharging Sheila,Rea be- cause she engaged in activity protected by. the- Act, -my recommended order will require Respondent to cease and desist from further violations of Section, 8 (a)(t) and to- take such affirmative action as will effectuate the policies of the Act.: In this connection, my recommended order will re- quire Respondent to offer immediate and full reinstate- i2 Cf Salt River Valley Water Users' Association, supra at 854 The Respondent, The Reading Hospital and Medical Center, Reading, Pennsylvania, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discharging, suspending, taking any other discipli- nary action against,-or in any manner affecting adversely the hire or tenure of employment or any term or condition of employment of, employees for engaging in any activity protected by, or guaranteed in, Section 7 of the National Labor Relations Act, as, amended, (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, loin, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National La- 13 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 Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclu- sions, and Order, and all objections thereto shall be deemed waived for all purposes. READING HOSPITAL AND MEDICAL CENTER bor Relations Act, as amended , or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment in con- formity with Section 8(a)(3) of said Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the National Labor Relations Act, as amended: (a) Offer to Sheila Rea immediate and full reinstatement to her former position , or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights or privileges and make her whole, in the manner set forth in the section of this Deci- sion entitled "The Remedy," for any loss of earnings she may have suffered by reason of her unlawful suspension and discharge. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all pay- roll records, social security payment records , timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its premises in Reading, Pennsylvania, copies of the attached notice marked "Appendix." 14 Copies of said notice , on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter , in conspicuous places, including all places where notices to employees are cutomarily post- ed. Reasonable steps -shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writ- ing, within 20 days, from the date of this Order, what steps have been taken to comply herewith. 14 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 615 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing before an Administrative Law Judge, at which all parties had the opportunity to present evidence and arguments, it has been decided that we have violated the National Labor Relations Act. We have, therefore, been ordered to post this notice and carry out its terms. WE WILL NOT in any way interfere- with any right given employees by the National Labor Relations Act. WE WILL NOT fire or suspend any employee , or other- wise discipline any employee, or take any unfavorable action against any employee for doing any of the fol- lowing things: 1. Taking part in any activity to protest any working condition. 2. Taking part in any activity to get better working conditions. 3. Objecting to, or taking part in any activity protest- ing, the initiation or discontinuance of any program believed to affect employees' working conditions. 4. Writing a letter to a newspaper, or saying that such a letter would be written , to protest any working condition, to get better working conditions,,or to protest the initiation or discontinuance of any pro- gram believed to affect employees' working condi- tions. As it has been decided that we suspended and fired Sheila Rea because she said she would write a letter to a newspaper protesting the discontinuance of the sur- gical residency program which she believed would af- fect the working conditions of operating room `techni- cians WE WILL immediately offer to take Sheila Rea back to work for us as an operating -room technician. WE WILL pay to Sheila Rea any wages she lost be- cause we suspended and discharged her. THE READING HOSPITAL AND MEDICAL CENTER