Otis Hospital

OTIS HOSPITAL 53 Otis Hospital and Massachusetts Hospital Workers Union, Local 880, Service Employees International Union, AFL-CIO. Case l-CA-10931 December 7, 1976 DECISION AND ORDER Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Hospital, I make the following: FINDINGS OF FACT I. JURISDICTION BY CHAIRMAN MURPHY. AND MEMBERS FANNING AND JENKINS On June 3, 1976, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, fmdings, 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Otis Hospital, Cambridge, Massachusetts, its officers, agents, suc- cessors, and assigns, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE MARION C. LADwIG, Administrative Law Judge: This case was heard at Boston, Massachusetts, on March 10, 1976. The charge was filed on August 1, 1975,1 and the complaint was issued on October 8. Nurses aide Evelyn Merowski, a union organizer, was promised by her supervi- sor when she went on maternity leave that, upon her return, she could work on the night' shift if there was an opening. When she asked to return-before the election was held- the Hospital refused to permit her to fill a vacancy on the night shift. The primary issues are whether, the Hospital, which did not call any defense witness, (a) refused her employment because of her union activities, and (b) unlawfully interrogated, threatened, and otherwise coerced employees before and on the day of the election, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. The Hospital, a Massachusetts corporation, operates a proprietary chronic disease hospital in Cambridge, Massa- chusetts, where it annually has gross revenue in excess of $250,000, and receives goods and services valued in excess of $50,000 from Massachusetts suppliers who receive the goods and services from outside the State. The Hospital admits, and I find, that it is engaged in- commerce within the meaning of the Act, and that the Union is a labor organization-within the meaning of Section 2(5) of the, Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Prior Proceedings In Otis Hospital, 222 NLRB 402 (1976), the Board held that the Hospital, upon advice of the same legal counsel, Julius Kirle, violated Section 8(a)(1) and (3) of the Act by withholding a promised wage increase during the preelec- tion campaign. The Board also held that the Hospital independently violated Section 8(a)(1) by telling an em- ployee that the raise was not given because "the Union was around," and by coercive interrogation. (The Hospital has 110 beds and about 225 employees. An election in three separate units was held on August 13 in Cases 1-CA-13583, 1-CA-13584, and I-CA-13585.) At the request of the General Counsel, judicial notice was taken of the earlier proceeding despite the objection of Counsel Kirle that the General Counsel is "just trying to color up instead of sticking to the facts of the case" and "bringing in everything but the kitchen'sink to try to color up and paint it so whoever reads it feels God knows what." B. Alleged Coercive Conduct It is undisputed that Nursing Supervisor Kathleen Naughton had three private preelection conversations about the Union with nurses aide-Carmen McIntosh in Naughton's office and one in the utility room. About July 31,` Naughton called McIntosh into the office, told her about the election, and (as McIntosh credibly testified), "asked me whether I was going to vote for the Union." (Emphasis supplied.) After McIntosh said she did not know, Naughton promised to give her a good recommenda- tion on her application to work for another hospital in the city. Naughton again called her into the office about August 7 and `.`said to me that if the Union came in, there were a lot of things that we could be deprived of," and said "We could be denied" paid lunches and,parking privileges. (Emphasis supplied.) About August 11, Naughton called her in the third time, asked her about her plans to work at the other hospital, and said she should not vote for the Union, or vote either way in the election, if she was leaving. I All dates are in 1975 unless otherwise stated. 227 NLRB No. 11 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Naughton then explained that McIntosh "must think about the other people that would be left behind ... especially the Portuguese people. Larry [Administrator Lawrence Heseni- us ] could get rid of those people because most of them didn't speak English fluently, and he could replace them with English-speaking people." (Emphasis supplied.) Shortly thereafter, Naughton spoke to McIntosh in the utility room and "asked me if I was still going to vote for the Union." (Emphasis supplied.) McIntosh replied that maybe she would. The Hospital argues that Supervisor Naughton stated only that the hospital administrator could (not would) take the actions ; argues that Naughton "was in no position to authorize and control" the Hospital's actions concerning the Portuguese people; and contends that what Naughton stated (about the administrator depriving the employees of privileges) "ties in" with the Hospital's campaign literature (that all wages and benefits would be subject to bargain- ing). I reject these defenses. The -threats were not qualified by any of the carefully drafted language in the campaign literature and were clearly coercive. There were no assu- rances against reprisals and the repeated interrogation in the context of the threats was also coercive. About 3 p.m. (shift change time) on August 13, the day of the election, Nursing Supervisor Naughton was near the timeclock. There she asked the question, "What are we all going to vote?" and in unison with three or four nurses aides, "raised their fist" and answered, "No." (The nurses aides were in one of the three bargaining units voting that day.) Without presenting any contrary testimony, the Hospital contends that "there is nothing violative of the Act in this action of hers, if indeed it did take place." The General Counsel contends that the supervisor's leading her employees in a cheer, to vote "No" against the Union during the voting hours was a coercive act, Guyan Valley Hospital, Inc., 198 NLRB 107, 113 (1972), "exert[ing] pressure upon employees ... to reveal their union senti- ments and constitut[ing] a subtle form of impermissive interrogation." I agree. After denying in its answer that Supervisor Naughton has supervisory status, and then failing to call any witnesses to contradict the testimony given by General Counsel's witnesses, the Hospital argues in its brief that if Naughton is not a supervisor as defined in the Act, the Hospital "cannot be faulted for" her conduct. It is clear, however, that Nursing Supervisor Naughton (as well as Mary Thomas, discussed later) is a statutory supervisor. She occupies a private office and serves as shift supervisor, making out the schedule for registered staff- nurses, licensed practical nurses, nurses aides, and orderlies; assigning them to the different floors to work; scheduling their days off and their holidays; scheduling and approving overtime; calling in additional' personnel when needed; and permitting or requiring persons on her shift to go home when sick. She has served as acting director of nurses (a supervisory position between the nursing supervisor and the hospital administrator). I find that, as shift supervisors, she and Nursing Supervisor Thomas both responsibly direct the nursing and - other personnel on their shifts and are supervisors within the meaning of the Act. Wing Memorial Hospital Association, 217 NLRB 1015 (1975). Accordingly, I find that the repeated interrogation, the threats, and Nursing Supervisor Naughton's conduct on the' day of the election were coercive and interfered with employees' Section 7 rights, in violation of Section 8(a)(1) of the Act. C. Alleged Discrimination Nurses aide Evelyn Merowski, organizing for the Union, "passed out union authorization cards from the beginning" of the organizing drive in October 1974. She attended about 12 union meetings and helped print union newsletters, which were distributed to the hospital employees. One of these newsletters which was issued during her maternity leave carried a long article over her name, complaining about how the Hospital had treated her and concludmg, "If we have a Union at the Otis Hospital, this situation can be avoided in the future." When she went on maternity leave in January, she asked her day-shift supervisor, Nursing Supervisor Thomas, if she could work on the night (11-7) shift when she returned "because at that time I would have a newborn baby and I would not be able to do the day shift." It is undisputed that Thomas "said that there would be no problem providing that they did need the help [on the night shift] at that time." (Merowski's husband, who had a day-shift job, could take care of the baby while she was working on the night shift, but she had nobody to take care of the baby if she returned to the day shift.) - Merowski gave birth to the baby in May and about June 11 (after her article appeared in the union newsletter), she telephoned the new director of nurses, Bernadine Scutta, to return to work. Scutta said she did not think Merowski was on maternity leave, but had been terminated. The next day, Scutta 'called her back and conceded that she was on maternity leave. However, despite the fact that there was a shortage of nurses aides on the night shift and the Hospital was advertising in the Boston newspapers for experienced nurses aides on all shifts, Scutta adamantly refused- without giving any reason-to permit Merowski to work at night. As Merowski credibly testified, "she told me that I couldn't go on nights; that I could go back on the same shift that I left ... on the same floor." Merowski mentioned talking to Nursing Supervisor Thomas about returning on nights, but Scutta said, "That doesn't make any difference. You're dealing with me now.... I won't let you [come] back on nights." When Merowski insisted-that she could not work on days, because she had a 1-month old baby whom she could not leave with anyone, Scutta asked her to submit a letter of resignation, Merowski refused, and Scutta said she would send Merowski a telegram, stating that she "voluntarily resigned." On the next day, June 13, Merowski telephoned Scutta and complained that "it just wasn't fair to me because I had been working at the hospital almost three years, and there was never anything wrong with my work. And it wasn't fair that I should have to resign like that." Merowski then asked if Scutta did not need help on nights, and Scutta untruthfully answered, "No." At that point, Merowski and Scutta exchanged a series of registered letters. Merowski wrote on June 13 that she considered herself on maternity leave, stated "I hope the attitude you took toward me does not have anything to do OTIS HOSPITAL 55 with my pro-union sentiment -and activities," and added, "Whenever an opening becomes available on nights, I expect to get the job." Scutta answered on June 19, giving Merowski until June 23 to return to work on the day shift "that you worked prior to your matermty leave of absence," denying any antiunion motivation, and adding, "I must staff the Hospital according to its needs and not according to your expectations"-without giving any specific reason for not permitting her to work at night. On June 26, Scutta wrote that Merowski had failed to return to work, and that "I have no other choice but to either have-you justify any further maternity leave of absence by Monday June 30, 1975 or consider you as having resigned your position on the staff of the Otis Hospital as of that date." Merowski answered on June 30 that she had no intention of resigning, stated that she wanted to return on the night shift "as was promised to me by the hospital when I began my leave of absence," and asked to continue on leave "until I am returned to work on the night shift." Scutta wrote the final letter on July 8, stating that the Hospital's June 19 position was clear, denied that the Hospital promised to put her on the night shift, stated that Merowski's letter confirmed that she was able to return to work, and gave her until July 14 to return on the day shift or "I shall consider you as having quit your position effective as of that date and shall mark the hospital records accordingly." Apparently because of the Hospital's June 15 newspaper ad for experienced nurses aides on "all shifts, no rotation," Scutta had dropped her untruthful,-oral claim on June 13 that there was no vacancy on the night shift. Yet Scutta remained adamant against permitting Merowski to work on the night shift, without giving any reason. In the Hospital's brief, the counsel suggests various unfounded reasons for not permitting Merowski to work on the night shift. The brief contends that Supervisor Thomas has no authority to make any commitment to have Merowski return on the night shift and argues that "if there was no such authoritative promise by Respondent, General Counsel's 8(a)(3) and (1) allegations with respect to Merowski must fall"-without suggesting any nondiscrimi- natory reason for the Hospital not wanting Merowski, an experienced nurses aide, to fill a night-shift vacancy, even if no promise had been made. The brief then argues that, if more nurses aides were needed on nights, even more people would be needed on the day shift "because they have much more work on days"-apparently suggesting that the Hospital preferred to leave the night-shift vacancies un- filled until it could fill the day-shift vacancies, despite its newspaper ads for nurses aides on "all shifts." Next, after citing various clearly inapposite cases, the brief argues that "Merowski's so-called notorious union activity alleged by the General Counsel afforded her no shield"-despite the absence of any improper conduct on Merowski's part. And, despite the fact that Merowski's mother and brother lived elsewhere in the city and were not available to take care of the baby in the daytime, the brief argues that such babysitting by relatives "is usually done by all working people who have babies." Finally, the counsel contends in the brief that Director of Nursing Scutta's statement in her June 19 letter, "I must staff the Hospital according to its needs and not according to your expectations," was a managerial decision that more people were needed on the day shift, and argues that the Hospital, "as Master of its own affairs," had complete freedom to make that deci- sion-thereby leaving unfilled vacancies on both the night and day shifts. These defenses are so frivolous that I find that the counsel is obviously asserting them for purposes of delay. The evidence is clear that (1) Merowski actively cam- paigned for the Union before her maternity leave and continued her union activity during her leave, (2) the election was pending when she requested reinstatement, (3) the Hospital -knew she could not work on the day shift because of her newborn baby, (4) there was_a vacancy when she asked to return on the night shift, and (5) there was no nondiscriminatory reason for the Hospital to refuse to permit her to fill the vacancy. Under these circumstances, I find that the Hospital denied her reinstatement except upon the day shift-with knowledge that she could not work days-in order to prevent her from returning to work and resuming her union organizing inside the Hospital I therefore find, as contended by the General Counsel, that the Hospital refused on and since June 19 to permit her to work on the night shift solely because of her union activity, thereby discriminating against her in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By refusing to reinstate Evelyn Merowski on and since June 19, 1975, because of her union activity, the Hospital engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By coercively interrogating and threatening employ- ees, the Hospital violated Section 8(a)(l) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily refused an employee reinstatement, I find it necessary to order it to offer her full reinstatement, with backpay computed on a quarterly basis plus interest at 6 percent per annum in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of refusal to date of proper offer of reinstatement. Inasmuch as the Respondent 's unlawful conduct goes to the heart of the Act, I find that a broad order against infringing upon the employees' Section 7 rights in any other manner is necessary. Upon the foregoing findings of fact and conclusions of law, upon the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER2 Respondent, Otis Hospital, Cambridge, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Denying reinstatement to or otherwise discriminating against any employee for supporting Massachusetts Hospi- tal Workers Union, Local 880, Service Employees Interna- tional Union, AFL-CIO, or any other union. (b) Threatening to discriminate against employees or to withdraw benefits from them if they vote for a union. (c) Coercively interrogating any employee about support- ing or voting for a union. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act: 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Evelyn Merowski immediate and full reinstate- ment on the night shift to her former job or, if her job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay or other benefits in the manner set forth in the Remedy section. (b) Preserve, and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its hospital in Cambridge, Massachusetts, copies of the attached notice marked "Appendix?' 3 Copies of said notice, on forms provided by the Regional Director for Region I, after being duly signed by Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt -thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- anly posted. Reasonable steps, shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is ALSO RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 2 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. 3 In the event 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 WE WILL offer full reinstatement to Evelyn Merow- ski, with backpay since June 19, 1975, plus 6 percent interest. WE WILL NOT deny reinstatement to any employee on leave of absence for supporting Massachusetts Hospital Workers Union, Local 880, Service Employees Interna- tional Union, AFL-CIO, or any other union. WE WILL NOT threaten to discharge employees or to take away benefits from them if they support or vote for a union. WE WILL NOT coercively question you about support- ing or voting for a union. WE WILL NOT unlawfully interfere with your union activities. OTIS HOSPITAL