St. Joseph's Hospital

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Joseph's Hospital and Local 1199 R.I., a Subdivi- sion of the National Union of Hospital and Health Care Employees, a Division of Retail, Wholesale, and Department Store Union, AFL-CIO. Case 1- CA-11241 December 21, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER notice marked "Appendix."24 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized 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 insure that said notices are not altered, defaced, or covered by any other material." DECISION On September 9, 1976, Administrative Law Judge Paul Bisgyer 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 opposition to the Respondent's exceptions and in support of the Decision of the Administrative Law Judge. 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, as modified herein.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 as modified below and hereby orders that the Respon- dent, St. Joseph's Hospital, Providence, Rhode Island, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as herein modified: Substitute the following paragraph for paragraph 2(c): "(c) Post at its Our Lady of Providence Hospital in Providence, Rhode Island, copies of the attached The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's estabhshed policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty 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 exanuned the record and find no basis for reversing his findings We find ment in the Respondent's exception to the Admmistrative Law Judge's statement, in the first sentence of the third paragraph of sec III, A, of his Decision, that "the Respondent adduced ," and hereby find that it should be "the General Counsel adduced. . 2 As the violations found herein all occurred at the Respondent's Our Lady of Providence unit, we shall limit the notice posting requirement to that facility. 227 NLRB No. 80 STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all the parties represented, was heard on May 5 and 6, 1976, in Providence, Rhode Island, on the complaint of the General Counsel issued on February 11, 1976,1 and the answer of St. Joseph's Hospital, herein called the Respondent or the Hospital. In issue is the question whether Respondent, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,2 discri- minatorily discharged employee Andrew Silvia because of his union activities, as the complaint alleges, or whether his dismissal was for cause, namely, for removing Hospital property without permission, as Respondent contends. At the close of the hearing, General Counsel and Respondent presented short oral statements of their respective positions and subsequently submitted supporting briefs. Respon- dent's motion to dismiss the complaint, on which ruling was reserved, is hereby denied in accordance with my findings set forth below. Upon the entire record, and my observation of the demeanor of the witness, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent, a Rhode Island corporation with its princi- pal office and facilities in Providence, Rhode Island, is engaged in the operation of a private, nonprofit hospital consisting of Our Lady of Providence Unit and Our Lady of Fatima Unit where it furnishes health care services for the acutely ill. Respondent's annual gross income for its services exceeds $250,000. In the regular course and I The complaint is based on a charge filed by the above-named labor organization on November 28, 1975, a copy of which was duly served on Respondent by registered mail on the same day 2 Sec. 8(ax1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the tights guaranteed in section 7." Insofar as pertinent, Sec 7 provides that "[e lmployees shall have the tight to self-organization, to form, Join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Sec. 8(a)(3), with certain qualifications not material herein, prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- ship in any labor organization .. " ST. JOSEPH'S HOSPITAL conduct of its operations, Respondent purchases goods valued in excess of $2,000 per year which are shipped to its facilities in Rhode Island from points outside the State. Respondent admits, and I fmd, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is conceded, and I fmd, that Local 1199 R.I., a Subdivision of the National Union of Hospital and Health Care Employees, a Division of Retail, Wholesale, and Department Store Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. The Union's, organizational campaigns and efforts to secure representational rights; Respondent's reaction In 1973, the Union initiated a drive to organize certain employees of Respondent. Later in the year, the Union filed a representation petition -with the Rhode Island Labor Relations Board and lost the election held by the state agency, by a few votes. On November 26,.1974, following the passage of the nonprofit hospital amendments to the National Labor, Relations Act,3 the Union fileda represen- tation petition (Case 1-RC-13628) with the Regional Office of the National Labor Relations Board. Pursuant to the Regional Director's Decision and -Direction of Election issued on February 5, 1975, an election was conducted on April 17, 1975, among -the Hospital's service and mainte- nance employees which the Union also lost by a close vote of 109 to 106. The-results of this election, however, were set aside by the Regional Director on September 18, 1975, finding objectionable. preelection conduct on the Respon- dent's part and ordering a rerun election to be held on October 30, 1975. A week before the scheduled date, employee Andrew Silvia, a known leader of the union movement, was discharged under circumstances to be subsequently discussed. Again, the Union suffered a defeat in the rerun election by a vote of 97 to 95 with 5 undetermined challenged ballots and again the Regional Director, on the basis of the Union's meritorious objec- tions, vacated the - election results and ordered a third election to be held on April 29, 1976. The latter election, too, could not be won by the Union which received only 70 votes with 137 votes, being cast against it. As it had done with respect to the previous Board elections, the Union filed objections to this election which at the time of the hearing in the present complaint, case had not yet been resolved. 3 The amendments to the Act were enacted by Congress effective August 25, 1974 (Pubh'c Law 43-360,193d Cong., S. 3203, 88 Stat. 395), extending statutory coverage to nonprofit hospitals and health care institutions. 4 It is undeniable that an employer is free to oppose a union's organiza- tional efforts and to communicate its ideas to its employees. However, it is equally well settled that the employer may not resort to measures prohibited by the Act to undermine the union's campaign or which prevent employees 497 It is quite clear that during the, foregoing preelection periods Respondent, in response to the Union's, efforts to secure representational status, -waged vigorous campaigns to defeat the Union at the polls. This encompassed frequent mailings of antiunion literature to employees and discus- sions at employee departmental meetings, in which Re- spondent urged rejection of the Union because the employ- ees had no need for union representation; alluded to benefits the employees were already enjoying, without a union to represent them; and invited them to bring to management their complaints and grievances for adjust- ment.4 In addition to the organizational context in which Silvia's discharge occurred, the Respondent adduced at the hear- ing, solely as background, evidence that supervisors had engaged in unlawful conduct during the period immediate- ly preceding the April 17, 1975, election.5 Specifically, Food Service Manager William Bjerke, in the presence of Personnel Administrator Gerald Christman, reprimanded employee Judith Jamison, a union activist, and issued a so- called counseling slip to her for allegedly discussing-union matters with employees during work time in work areas and interrupting them in the performance of their duties, in violation of Hospital rules. Jamison was further warned on this occasion that a continuation of such conduct would result in disciplinary action. Although Jamison denied the accusation and although talking among the employees while working about various subjects was permitted-in the office where they were employed, she was, nevertheless, given the counseling slip. -Moreover, in a subsequent conversation, Bjerke admitted to Jamison that she was being watched as "part of [the Hospital's] tactics" because she was for the Union and that she probably received the counseling slip for that reason. When in a third conversa- tion with Bjerke, Jamison produced two employee witness- es to substantiate her denial that she had engaged in the charged conduct and threatened to file a grievance, Bjerke requested her to withhold action so that he could see ifthe counseling slip could be removed from her personnel file. In the same preelection campaign period, Frank Berube, a supervisor in the dietary department, questioned employ- ee Joey Beradis - during working time in the kitchen concerning- the reason he was wearing a union button and what complaints and gripes, he had, stating that, if he (Berube) knew what they were, he could possibly do something about them. Berube similarly questioned em- ployee-Joe Senape about the union button he was wearing and his complaints and gripes which he offered to try to have remedied. Berube also conceded that he made individual inquiries of a number of other employees in the cafeteria, many of whom wore union buttons, regarding their complaints which he offered to try to straighten out. Victor LaFazia, the maintenance department engineer in immediate charge of that department in the - Providence Hospital unit, admitted that during the April 17, 1975, from freely expressing their choice at the polls regarding union representa- tion. Although this conduct occurred outside the 6-month statutory limita- tion period (Sec. 10(b)), the evidence is admissible to shed light' on Respondent's motivation underlying Silvia's discharge within the 6-month period. (Local Lodge No. 1424, 1nternationalAssociation of Machinists [Bryan Mfg. Co.] v. N.L.RB., 362 U.S. 411,416 (1960).) 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preelection period he showed employee Frank Lury a union leaflet containing his signature along with signatures of other employees and asked him whether he had signed it. Lury denied that he had and, in reply to LaFazia's inquiry whether he would swear that he had not, Lury answered in the affirmative. Thereupon, LaFazia telephoned Personnel Administrator Christman and arranged for Lury to see him, which Lury then did. LaFazia testified that he questioned Lury about his name being on the union leaflet because Lury had previously told hiin`that he wanted no part of the Union. 2. Andrew Silvia's employment history and union activities Silvia was a maintenance man in Respondent's employ at its Providence Hospital unit from October 1970 until his discharge on October 24, 1975, for allegedly removing from the Hospital without permission a 54-foot heavy-duty electrical extension cord.6 Admittedly, Silvia was a capable and trustworthy employee (at least until this episode) who received favorable annual job evaluations from his supervi- sor, Victor LaFazia, entitling him to periodic wage increas- es and a promotion- in October 1973 to senior maintenance man. Silvia had never been given any written reprimands for his work or conduct, much less a warning that he was vulnerable to discharge. There is no question that Silvia was one of the most, if not the most, prominent and conspicuous employee advocate of the Union since the inception of the union movement at the Hospital in the summer of 1973. He was a member of the employee organizing committee, initially confining his activities to maintenance, employees whom the Union was originally only interested in representing and in subsequent years expanding his activities to other service employees whom the Union then sought to include in the bargaining unit. During each of the campaigns Silvia openly discussed with employees the benefits of union representation; solicited and succeeded in securing from employees signed union authorization cards to obtain- an election; and frequently distributed union literature among them. These activities were conducted by Silvia whenever he had the opportunity on his own time on. Hospital premises or in adjacent areas or away from the institution. At departmen- tal employee meetings held by Respondent at which its officials urged the rejection of union representation as unnecessary, Silvia voiced his- disagreement and argued for the need for union representation to press employee grievances and complaints. Silvia also served as a union 6 Silvia estimated its value at $10 to $12, while Respondent placed its value at between $20 to $30. However, Director of Operations A. Edward Azevedo, who made the discharge decision, denied that value was a controlling factor. - 7 Except as otherwise indicated, all dates hereinafter mentioned refer to 1975. 8 Apart from' the fact that no supervisor was present in the maintenance department at this time, Silvia credibly testified, without contradiction, that it was not necessary to make prior arrangements before taking a day off and that all that was , required was for him to call his supervisor in the morning when he was scheduled to work and to inform him that he would be absent. He further credibly testified that, in addition to a floating holiday to which he was entitled, he had approximately 10 accumulated sick days which, under the Respondent's policy, could be used for personal purposes. Moreover, Silvia also credibly testified that it was Respondent 's practice to observer in the 1973 state board election and the subse- quent National Board election in April 1975: The Respon- dent concedes that it was fully aware of Silvia's prominence in the union movement at all significant times. As indicated above, it is' also undisputed that during these preelection periods Respondent waged its own campaigns to impress on the employees that they had already gained many benefits and that they could have their grievances resolved satisfactorily, without the intervention of third parties. - 3.. Events preceding Silvia's termination About 10:30 Tuesday evening of October 21, 1975,7 while working the 4 p.m.-to-12 midnight shift, Silvia received a telephone call from his son in the course of which Silvia learned that his son would be available the following morning to assist him in cutting down some trees in the back lot of his home. Silvia thereupon decided to take off Wednesday to do that chore. Although he was scheduled to report for work at 8 o'clock that morning, Silvia did not inform anyone of his intention; nor was he required to do so at this time.8 Planning to use his electric chain saw to cut the trees down, Silvia decided to borrow the heavy-duty electrical cord belonging to the maintenance department, which he kept in his roll-around toolbox for use in connection with the performance of his duties.9 According- ly, he removed the extension cord from the toolbox, rolled it up and put it in a bag, as he had done on other occasions with other tools or-personal items, to take home with him at the close of his shift, with the intention of returning the cord after it had served its purpose. In addition, Silvia also put three pieces of glass he had taken from the-shop in another bag also to take home with him. Undeniably, employees were permitted to take glass home for their personal use. After making up these packages, Silvia, proceeded to watch the World Series game on his portable TV. In the meantime, James Dundon, Silvia's reliefman, reported for work and joined him at the TV until about midnight when Silvia stated that he was leaving and told Dundon to lock up the TV in Silvia's toolbox when he was through watching the game.10 Silvia thereupon picked up his two packages and depart- ed through the emergency exit door- which led to the parking lot on Plenty Street where he usually parked his -car. Because this door gave him convenient access to his car,, Silvia customarily left the Hospital through this door unless a security guard was stationed there, even though its use was -forbidden to all persons except in emergencies.11 When Silvia reached his car, Richard Sepe, the Hospital's reimburse employees at their regular wage rate for unused sick leave on or about December 15 of each year. No testimony was' presented by Respon- dent to contradict Silvia's testimony. ' 9 This extension cord had been fabricated by Silvia with maintenance department materials about 10 to, 14 months before. Although the cord was infrequently used, it was kept in gilvia's toolbox for convenience should the need apse, as other maintenance employees have been doing. 10 In view of the fact that Silvia admittedly did not request permission to borrow the extension cord from his supervisor LaFazia or any other individual authorized to grant it, it is unnecessary to determine whether before Silvia's departure, Silvia mentioned to employee Dundon that he was borrowing the cord, as Silvia tesufiedhe did,'or whether he said nothing about it, as Dundon testified - ii However, it is undisputed that other employees, department heads, doctors, and nurses have been using this exit door with impunity. Indeed, a ST. JOSEPH'S HOSPITAL safety engineer with security responsibilities , drove up and inquired about the contents of the two bags Silvia was carrying. Silvia replied that in one bag he had several pieces of glass which he had cut in the shop and in the other bag he had an extension cord he was borrowing for use at home. Sepe then asked Silvia whether his supervisor, LaFazia, knew he was borrowing the cord. Silvia answered in the affirmative but clarified his response when, in reply to Sepe's followup question whether he had called LaFazia at home for permission to borrow the cord,12 Silvia stated that he had not but that LaFazia knew that maintenance employees regularly borrow tools from the maintenance department.13 At Sepe's request, Silvia handed over the two packages to him, declining, however, Sepe's invitation to accompany him to the Hospital where - Sepe intended to make several telephone calls. Silvia explained that it was too late to remain as he was scheduled to report for work at 8 o'clock the following morning (Wednesday, October 22),14 at which time he would see Sepe and answer any questions he might have. Silvia thereupon departed, while Sepe conferred by telephone with Thomas J. McGrath, the Hospital's director of engineering, and Ralph Racca, its assistant administrator, who is in administrative charge of maintenance and security . Oddly enough, it does not appear that Sepe made a telephone call to LaFazia to verify whether he had given Silvia permission to borrow the cord, as Sepe testified that Silvia had told him at the time of their encounter in the parking lot. - It is perfectly clear from the record and, in particular, from the reports of Sepe and a security guard regarding the midnight incident that Sepe and guards were stationed near the Plenty Street emergency exit door for the purpose of observing Silvia's departure from the Hospital and appre- hending hum in a situation which Repondent could utilize for its purposes, whatever they might be. However,, Sepe lacked the candor to admit it and kept parrying the General Counsel's questions on cross-examination by insisting that he was not in the parking lot solely to keep Silvia under surveillance even in the face of his asserted awareness that Silvia was suspected of removing without authority Hospi- tal property through the emergency exit door and in the face of the report that he drafted and submitted on October 22 to A. Edward Azevedo, director of operations, who subsequently made the decision to discharge Silvia .15 This report is entitled "Surveillance of Mr. Andrew Silvia- Maintenance Department 10/21/75" and its opening paragraphs read as follows: As a result of a report from hospital security officers Clifford Eddleston and Ishamel Gordon (4-12 shift, M- report of a security guard dated as recently as March 11, 1976, referred to the fact that employees; including doctors, nurses, and administrative personnel were repeatedly. leaving through the emergency exit door in question. Moreover, the minutes of a maintenance department meeting of employees called by, management on November 13, 1975, after •Silvia's termination, discloses that an employee suggested that a memo be sent to employees explaining why they should not use the above emergency exit door since the employees had been using the door because of its convenient access to the parking lot. It is not without significance that when Sepe subsequently approached Silvia in the parking lothe did not bring up the subject of Silvia's improper use of the emergency exit door. 12 LaFazia was not on duty during Silvia's afternoon-shift 13 The foregoing findings are based on the testimonial account of Silvia who impressed me as a reliable and truthful witness. Sepes testimony did not 499 F),16 concerning Mr. ' Silvia being observed carrying packages out of the hospital during the 4 P.M. to 12 midnight shift, it was decided that Mr. McGrath and myself would attempt to witness such an act ourselves. It was known that Mr. Silvia would leave the building by the Plenty Street emergency exit and go to his automobile which was parked nearby. Security Officer Harold Redmond, from the Fatima Unit, was stationed, in his car, at the Broad Street side of the Plenty -Street parking lot from 7:00 P.M. until midnight. Mr McGrath (from 7:00 to 9:30 P.M.) and later I (from 9:30 P.M. to midnight) stationed ourselves in the Plenty Street lot near the emergency room entrance. At approximately midnight Mr. Silvia left the hospital through the Plenty Street emergency entrance. At this time, I was able to see a package under Mr. Silvia's left arm. Therefore, I drove up to him and parked beside his car. Apparently concerned over the serious implications of his midnight encounter with Sepe, Silvia telephoned Dundon at the maintenance shop as soon as Silvia arrived home and related his parking lot meeting with Sepe. Silvia then requested Dundon to "remind Vic [LaFazia] in the morn- ing that ... [he, Silvia] told him about the cord" and Dundon replied that he would take care of it. Accordingly, Dundon wrote The following note to which he signed his name and sliped it under LaFazia's office door: "Vic - Andy Silva [sic] has an _extension cord. He called at 12:25 A.M." 17 When LaFazia came to work Wednesday morn- ing, October 22, Dundon testified that he orally conveyed Silvia's message to LaFazia. About 7:45 a.m. of the same day, Silvia reported for work but was unable to locate his timecard in the rack. When he informed LaFazia of this fact, LaFazia stated that he was directed to pull his card by McGrath who wanted to speak to Silvia. A few minutes later LaFazia accompanied Silvia to McGrath's office where McGrath, to whom Silvia's packages had been turned over earlier in the morning, opened up the first package containing the pieces of glass, commenting that Silvia could keep them. Upon opening the package containing the extension cord, McGrath asked Silvia what was the story. Silvia explained that the cord had been kept in his toolbox and that he was borrowing it to use in cutting down some trees on his back lot. This evoked McGrath's inquiry whether Silvia intended to cut down the trees at night. Silvia responded in the negative, adding that he intended to perform that job the following morning and to take the day off to do it. In the course of the vary from Silvia's in important respects except that he testified that Silvia told him that LaFazia had given him permission to take the cord. As will be later shown, Sepe was not an entirely candid witness inother respects. 14 Because of this development, there obviously was no point for Silvia to take Wednesday off and he accordingly revised his plans and reported to work. 15 Azevedo also disingenuously testified that Silvia was not the sole target of the surveillance. 16 The dubious nature of the guard's report will later be considered. 17 It is unnecessary to a determination of the discrimination issue in this case to resolve the conflict in testimony whether Silvia requested Dundon to sign Silvia's name to the note, which he refused to do, as Dundon testified, or whether Silvia made no such request, as Silvia testified. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation, Silvia pointed out that LaFazia always allowed his men to borrow tools from the shop to use at home. LaFazia corroborated Silvia that he always permit- ted his men to borrow tools whenever they requested to do so. Silvia also stated that he did not call LaFazia at home to secure permission to borrow the cord because he did not want to bother LaFazia with a matter as inconsequential as that in view of the difficult problems LaFazia had at home in taking care of his sick mother. In response to McGrath's comment that the extension cord looked new and appeared to have just been made up, Silvia acknowledged its good condition because he makes it a practice to keep his tools clean. McGrath also brought up the subject of Dundon's note, mentioned above, and Silvia denied telling Dundon to sign his (Silvia's) name to it. The conversation concluded with McGrath's statement that he was suspending Silvia while continuing the investigation of the matter and that he would get back to him later. The next afternoon, October 23, McGrath telephoned Silvia at his home and told him to see Personnel Admini- strator Gerald Christman at the Hospital, Friday morning, October 24. At the appointed time, Silvia met with Christman at his office. Christman questioned Silvia along much the same lines as McGrath had previously done and received the same answers. In reply to Christman's inquiry whether he had proof that he had only intended to borrow the extension cord, Silvia stated that he did not know what proof he could possibly offer him except his word that he was only borrowing the cord and Christman's knowledge of his character during their long period of acquaintanceship. Silvia also volunteered his opinion that it was his union activity which brought about his difficulties with manage- ment. At the close of the interview, Christman informed Silvia that management was going to confer and that he could communicate with him around 1 o'clock in the afternoon. As promised, Christman called Silvia. During the ensuing conversation, the subjects of job references and Silvia's resignation were discussed. This led to Christman's propos- al -that if Silvia placed a letter of resignation on Christman's desk by 3 p.m., it would close the matter. Silvia replied, "Okay, I'll see you later." Silvia, however, did not submit his resignation. On the following Tuesday, October 28, not having heard from Respondent regarding his job status, Silvia called LaFazia at the Hospital. In answer to Silvia's inquiry, LaFazia stated that he understood that Silvia had been terminated but that he would have Christman communicate with him. Shortly thereafter, Christman telephoned Silvia and ad- vised him that since no letter, of resignation had been submitted, he thought Silvia would know that he had been terminated, adding that to avoid any further misunder- standing he was giving him such notification at that time. Christman then denied Silvia's request for a letter specify- ing the reasons for his discharge because it was not the Hospital's policy to furnish a letter of that nature. 18 The personnel policy book listed 12 offenses which would subject employees to the above-mentioned disciplinary action. There .is nothing specifically mentioned among these offenses relating to borrowing Hospital property without prior permission. In a memorandum dated September 4, 4. The decision to discharge Silvia; Respondent's poljcy requesting the borrowing of tools and equipment A. Edward Azevedo, the director of operations, testified that it was he who made the decision to discharge Silvia because of his unauthorized removal of Hospital property after conferring with Azevedo's subordinates, Director of Engineering McGrath, Maintenance Engineer LaFazia, Personnel Administrator Christman, and Assistant Admin- istrator Racca, and after ascertaining that Silvia had not secured prior permission to borrow the extension cord for home use from LaFazia or any other individual authorized to grant it. It is perfectly clear from Azevedo's testimony that he based his decision on the assumption that Silvia had actually taken the extension cord without any intention of returning it and thereby violated the Respondent's well- publicized rule embodied in its personnel policy book that "[t]heft of hospital or patient property" "will result in disciplinary action ranging from verbal warning, written reprimand, to discharge." is However, it is also undisputed that at the time of his decision Azevedo was aware that Silvia claimed that he was only borrowing the cord to cut down trees on his lot; that maintenance employees were invariably permitted to borrow tools and equipment from their department; and that he (Silvia) had explained to Hospital officials that he did not telephone LaFazia at home for permission to borrow the cord because he was reluctant to bother LaFazia at night with such an inconse- quential matter compared to the personal problems LaFa- zia was experiencing in caring for his aged mother. In this connection, there is no question that prior to the cord incident Silvia was regarded as a good, honest, and trustworthy employee with certain responsibilities not possessed by other rank-and-file maintenance men. On the other hand, Azevedo, in the course of his testimony, justified his action as being consistent with his termination of other employees for unauthorized removal of Hospital property, citing three such instances. One was the discharge of a dietary department employee in August 1975 for stealing 40 to 50 pounds of meat and fish. Obviously, this employee was not borrowing the food. The second incident occurred at the Fatima Hospital Unit 2 or 3 years earlier and involved the theft of hospital chairs which had disappeared from the Hospital's loading platform shortly, after they had been delivered by the vendor. With the help of the police, the chairs were located in the homes of two employees who were thereupon discharged. The third incident concerned the theft of certain drugs by a pharmacy technician who personally used them. Azevedo further testified that, in reaching his decision to terminate Silvia, he took into consideration a security guard's report dated' October 17, 1975, concerning Silvia's alleged offenses on that day and during an earlier period. 1975, prepared by LaFazia and directed to "All Maintenance Employees," p. 19 of the personnel policy book, which set forth the 12 offenses, was duplicated with the employees' attention being specifically directed to the theft and insubordination rules. ST. JOSEPH'S HOSPITAL This report described the offenses as "Removing unauthor- ized material from Hospital." 19 Under the subject of "Detailed Account of Incident," the following appears: Andrew Silvia works on this shift (4 pm to 12 pm) Tuesday & Thursday nights as a maintenance person. Over the past several weeks Mr. Gordon [another guard] & myself have watched him place bundles & materials in his car which we could not identify as it was either visual from to [sic] far a distance or on the monitor-. On 10/17/75 at 7:00 pm we saw him put 2 flourecent [sic ] tubes in his beach wagon type car. The same night at approx 11:57 we both observed him running from the fire door on Plenty St with at least 2 heavy bundles but again we were to [sic] far away to stop him. It,appears that we will need some kind of assistance to bring this affair to a conclusion. Although the report refers to the removal of "unauthorized material from Hospital," by Silvia, it is obvious from the contents of the report that the guard had absolutely no basis for such a conclusion. 'Indeed, Azevedo himself testified that when he received the report he did not act on it to terminate Silvia because the report contained no actual proof of the alleged offenses. Yet, during his cross-examina- tion, Azevedo testified that he questioned Silvia's intent in subsequently taking the extension cord here involved because he (Azevedo) "had to assume" that it was unlawful from "the report where :.. [Silvia] was observed taking merchandise out or some sort of material on a previous occasion." The utter unreliability of the security guard's report is also- suggested by the fact that the record is barren of any evidence that Silvia was ever interviewed by any security officer or Hospital official concerning his alleged misappro- priations of Hospital property on October 17 and on other prior occasions or that an investigation of such charges was ever conducted. In fact, it is odd that no separate report was ever made by the security _ officers of Silvia's alleged removal of _ property during "the past several weeks" preceding the October 17 alleged misappropriations, al- though the security officers were unquestionably duty- bound to make such reports of these observations. Signifi- cantly, these officers were not even reprimanded for- their failure to do so. Furthermore, if Azevedo regarded the October 17 report as a reason for impugning Silvia's intent in taking the extension cord, as Azevedo testified, it is difficult to understand why Respondent did not produce the security guards who allegedly observed Silvia's -earlier conduct to substantiate the statements in the October 17 report, especially since Silvia denied at the hearing ever taking fluorescent light tubes for which he had no use. As noted above, Azevedo refused to give Silvia the benefit of any doubt that he intended only to borrow the extension cord but, instead, imposed the extreme penalty of discharge on him, even though Respondent had a flexible system of discipline consisting of reprimands and warnings or- counseling. Indeed, Silvia was the first employee in, the 19 Later in his testimony under cross-examination, Azevedo stated that he relied on this report, in part, to setup surveillance at the emergency exit door. 20 However, it appears that Respondent had inserted an announcement in 501 maintenance department who was terminated for unau- thorized removal of Hospital property. - There is no question that employees in the maintenance department were permitted to borrow its tools and equip- ment. However, it is equally clear- that the normal practice was for the employees to request permission to borrow the item from their supervisor, LaFazia, or the working foreman, Tommy McLaughlin, who was authorized to grant such permission. Invariably, permission was granted. As LaFazia conceded, his primary concern has always been that the borrowed equipment be returned and he repeatedly so informed the employees. There is also testimony by Silvia and' Joseph Antaya, another maintenance man, both of whom I credit, that, if neither- LaFazia nor McLaughlin were in the hospital, they nevertheless would borrow tools or other equipment, much more expensive than the exten- sion cord here involved, which they would subsequently return. Silvia and Antaya further credibly testified, without contradiction, that -on separate occasions when they re- turned to McLaughlin the borrowed item for which they had not obtained prior permission, they advised McLaugh- lin of this fact and the latter made no comment on their failure to get permission. Significantly, at no time did LaFazia or any Hospital official ever put employees on notice that borrowing any tool or equipment from the maintenance department without prior permission would be viewed as theft and would result in disciplinary action, including discharge. Indeed, the only published statement specifically relating to the borrowing of maintenance department tools or equipment was made at a meeting of maintenance department employees on November 13, after Silvia's discharge. The minutes of that meeting, copies of which appear to have been distributed among the employ- ees of that department, state that "If an employee should take anything from the Hospital, a slip is required and should have Vic [LaFazia's] or Tom [McLaughlin's] signature. " 20 B. Concluding Findings The question of discrimination presented here is essen- tially a factual-one whose resolution rests, as it often does, on circumstantial evidence. Of course, the burden of proving the unfair labor practice is the General Counsel's. A careful review of the record persuades me that the General Counsel sustained his burden and established that Silvia was discharged on account of his union activities, as alleged in the complaint, and not because ofhis unauthor- ized removal of an electrical extension cord belonging to the Hospital, as the Respondent insists. As discussed above, Silvia was a capable, trustworthy, and honest employee in the Respondent's employ for some 5 years before his termination. Admittedly, he was, to the Respondent's knowledge, a leading figure in the Union's organizational efforts and campaigns to win first a state board-and subsequently a National Board-conducted representation election. Moreover, he was discharged without the recommendation of his supervisor LaFazia only a week before the rerun election the National Board's its official publication of April-May 1975 that cookout grills were available for all Hospital employees to borrow. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD board's Regional Director had scheduled for October 30, 1975, after setting aside a close earlier election because of the Respondent's objectionable preelection conduct. Con- sidering Silvia's well-regarded reputation and employment record, I find it difficult to believe that the Respondent sincerely viewed Silvia's failure to secure advance permis- sion to borrow the electrical cord, valued at 10- or 20-odd dollars, as an unauthorized removal of Hospital property constituting theft which required the extreme penalty of discharge under the Hospital' s rules. My doubt is bolstered by the additional facts that Respondent was well aware of Silvia's assertion that he was only borrowing the extension cord to use with his electrical chain saw to cut down some trees on his lot; Respondent knew that no supervisor or other person empowered to grant permission to borrow such items was on duty on Silvia's shift; Silvia explained to Respondent's officials that he did not call LaFazia at home for permission because he did not want to bother LaFazia with such an inconsequential request-which would have been granted anyway-as compared to the personal prob- lems with which LaFazia was burdened in caring for his aged mother who lived with him; and it was LaFazia's invariable practice to allow maintenance department em- ployees to take home the department's tools and equipment for their own use whenever they requested. In these circumstances, it is surprising that Respondent would not give Silvia the benefit of any doubt it might have had concerning his intent to borrow the extension cord and, at least, withhold the penalty of discharge and impose a lesser one as defined in Respondent's policy book.21 While it certainly is not within the Board's province to pass on the reasonableness of the disciplinary action taken by manage- ment, the nature of the punishment may nevertheless betray an antiunion motivation underlying its action . This is especially so here where at the time of Silvia's discharge the Respondent had no announced rule or warning that employees would be subject to termination for borrowing or removing from the Hospital tools or equipment for personal use without prior permission. Indeed, it was only 2 weeks after Silvia's termination that Respondent thought it important enough to announce at a meeting of mainte- nance department employees that employees were required to get written permission from LaFazia or McLaughlin before taking anything out of the Hospital. Copies of minutes of this meeting containing this notification were also distributed among the employees. Furthermore, there is undisputed testimony that prior to Silvia's discharge Silvia and another employee, Antaya, each had the occa- sion to borrow tools from the maintenance department for their personal use at home without first securing permission because neither LaFazia nor McLaughlin was in the Hospital at the time, and when they returned the borrowed tools and advised McLaughlin what they had done, McLaughlin did not reprimand them for failing to get prior permission. In justification of the penalty of discharge it visited upon Silvia, Respondent argues that such punishment has been consistently and uniformly applied to all employees who were caught removing Hospital property without perinis- sion. However, the three cases cited by Respondent are, as discussed above, plainly distinguishable from Silvia's case. Those cases unequivocally involved outright thefts of property with no claim being even made by the wrongdoers that they were borrowing the property with the intent of returning it. Another factor contributing to an inference of discrimi- natory motivation causing the discharge is Respondent's assertion that, in making its discharge decision, it took into consideration the October 17 report of a security guard concerning Silvia's similar offenses of unauthorized remov- al of Hospital property on that and earlier dates. However, as indicated above, this report was totally unreliable and, in fact, Respondent itself conceded at the hearing that the report lacked proof upon which it could act to terminate Silvia. It is also worthy to note that these alleged earlier misappropriations were not investigated by Respondent nor was Silvia ever interviewed about them; much less was any evidence presented at the hearing to substantiate the charges made in the report in question. Yet, Silvia was placed under surveillance, although the Respondent's officials repeatedly denied on the witness stand, contrary to the import of the evidence, that Silvia was the sole target of the surveillance on October 21-22. All things being consid- ered, I find that the purpose of the surveillance was to apprehend Silvia in a situation which it could utilize to get rid of an active union protagonist at a time when its action would probably have a serious adverse impact on the Union's chances of winning the rerun election scheduled to be held on October 30. The Respondent, nevertheless, denies that antiunion considerations prompted its discharge decision , arguing that it was fully aware of Silvia's union activities from their inception and that, had it been discriminatory-minded, it would not have subsequently promoted Silvia to senior maintenance man or given him any wage increases. However, while under other circumstances such evidence might militate against a finding of discrimination, I am not persuaded from the entire record that such a finding is negated here. Conceivably, there could be any number of reasons why the Respondent did not take retaliatory measures against Silvia sooner than it did . As, for example, it might have thought that to withhold a promotion or wage increase from a deserving employee, which Silvia admitted- ly was, might well reveal an improper motive; or it might have believed that bestowing such benefits might cool Silvia's enthusiasm for the Union; or the Respondent might have decided to wait for a more propitious moment to eliminate the leader in the union movement. In view of the foregoing, including Respondent's demon- strated opposition to the Union's efforts to secure represen- tational rights at the Hospital, I find that Silvia was terminated because of his union activities and that the Respondent's reliance on his alleged taking of the extension cord without prior permission was but a, pretext to hide its true unlawful motivation. Such conduct, I conclude, clearly constitutes discrimination in employment to discourage union membership violative of Section 8(a)(3) of the Act and interference, restraint, and coercion in the exercise of 21 As indicated above, this book listed 12 offenses , including "[t ]heft of hospital and patient property" which, Ifcommttted, "will result in disciplin- ary action ranging from verbal warning, written reprimand, to discharge." Sr. JOSEPH'S HOSPITAL ' employee statutory rights violative of Section 8(a)(1-)°of the Act. Even were it assumed that Silvia's failure to secure permission before borrowing the extension cord to some extent entered into Respondent's decision to terminate him, I find that his union involvement was a substantial moving cause of his discharge and that therefore the same statutory provisions were violated.22 IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that Respondent be ordered to cease and desist from engaging in the unfairlabor practices-found and take certain affirmative action designed to effectuate the policies of the Act. - - I have found that - Respondent unlawfully discharged employee. Andrew Silvia because of his union sympathies and support. To remedy this, violation, it is recommended that Respondent offer immediate and full reinstatement to his former job, or,'-if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination-against him by payment to-him of a sum of money equal to that which- he normally would have earned from October 22, 1975, the date of his suspension, to the date of offer of reinstatement; less his net earnings during the said period. Backpay shall be computed- with interest on-a quarterly basis in the manner prescribed by the Board in, F. W. Woolworth Company, 90 NLRB ^ 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). To facilitate the computation, as well as to clarify Silvia's right to reinstatement and employment, the Re- spondent shall - make available 'to the Board, upon request, payroll and other records necessary and appropriate for such purposes. The posting or a notice is also recommend- ed. In view of the nature of the discrimination for union activities and support which "goes to the very heart of the Act," there exists the danger of the commission by Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that Respondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Andrew Silvia to discourage membership in, and activities on behalf of the Umon, Respondent 22 J. P. Stevens & Co., Inc. v. N.L.RB., 380 F.2d 292,300 (C.A. 2, 1967), cert. denied 389 U.S. 1005; N.L KB. v. Jamestown Sterling Corp, 211 F.2d 725,726(C.A.2) 23 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, 503 engaged'-,in unfair labor practices within the meaning -of Section 8(aX3) of the Act and interfered with; restrained, and coerced employees in the exercise of their statutory rights -within the meaning -of Section 8(a)(1) -of the Act. 4. The aforesaid unfair labor practices affect commerce 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, as amended, I hereby issue-the following recommend- ed: - ORDER23 The Respondent, St. Joseph's Hospital, Providence, Rhode Island, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 1199 R.I., a Subdivision of the National Union of Hospital and Health Care Employees, a Division of Retail, Wholesale, and Department Store Union, AFL-CIO, or any other, labor organization, by discharging employees or in any other manner -discriminating against them in regard to-their hire .or, tenure of employment -or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to- self- organization, to form labor organizations, to join or assist the above-named Umon or any other labor organization, 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 and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Andrew Silvia immediate and full reinstatement to his former job, or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, 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, timecards, personnel records and reports, and all other records necessary or useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. (c) Post at its hospital in Providence, Rhode Island, the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's autho- 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. 24 In the event the Board's Order is enforced by a Judgment of a United (Continued) 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rized representative, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to 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 the opportunity to give evidence; the National Labor Relations Board found that we violated the National Labor Relations Act and ordered us to post this notice. The Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these activities. WE WILL NOT discharge or lay off employees or otherwise discriminate against them because of their membership in, or activities on behalf of Local 1199 R.I., a Subdivision of the National Union of Hospital and Health Care Employees, a Division of Retail, Wholesale, and Department Store Union, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and 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 as authorized by Section 8(a)(3) of the Act. WE WILL offer Andrew Silvia immediate and full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of the discrimination against him. All our employees are free to become, remain, or refrain from becoming or remaining, members of Local 1199 R.I., a Subdivision of the National Union of Hospital and Health Care Employees, a Division of Retail, Wholesale, and Department Store Union, AFL-CIO, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. ST. JOSEPH'S HOSPITAL