Faulkner Hospital

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Faulkner Hospital and John B. Walsh. Case 1-CA- APPENDIX 17751 NOTICE To EMPLOYEES November 20, 1981 POSTED BY ORDER OF THE DECISION AND ORDER NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN After a hearing at which all sides had an opportu- On July 30, 1981 Administrative Law Judge nity to present evidence and state their positions, On July 30, 1981, Adm stratve Law Judge the National Labor Relations Board found that we Frank H. Itkin issued the attached Decision in this the National Labor Relations Act, as proceeding. Thereafter, Respondent filed excep- amended, and has ordered us to post this notice. amended, and has ordered us to post this notice. tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the WE WILL NOT discharge our employees be- National Labor Relations Act, as amended, the Na- cause they have engaged in activities protected tional Labor Relations Board has delegated its au- in Section 7 of the National Labor Relations thority in this proceeding to a three-member panel. Act. The Board has considered the record and the at- WE WILL NOT coercively interrogate our tached Decision in light of the exceptions and brief employees about their activities protected in and has decided to affirm the rulings, findings, and Section 7, or threaten them with discharge be- conclusions 2 of the Administrative Law Judge and cause they have engaged in such protected ac- to adopt his recommended Order. 3 tivities. WE WILL NOT in any like or related manner, ORDER interfere with, restrain, or coerce employees in Pursuant to Section 10(c) of the National Labor the exercise of the rights guaranteed them in Relations Act, as amended, the National Labor Re- Section 7 of the Act. lations Board adopts as its Order the recommended WE WILL offer employee John Walsh imme- Order of the Administrative Law Judge and diate and full reinstatement to his former posi- hereby orders that the Respondent, Faulkner Hos- tion or, if this position no longer exists, to a pital, Boston, Massachusetts, its officers, agents, substantially equivalent position, without prej- successors, and assigns, shall take the action set udice to his seniority or other rights and privi- forth in the said recommended Order, except that leges previously enjoyed, and make him whole the attached notice is substituted for that of the for any loss of earnings he may have suffered Administrative Law Judge. due to the discrimination practiced against him, with interest. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to FAULKNER HOSPITAL overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products DECISION Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. STATEMENT OF THE CASE 'We agree with the Administrative Law Judge that Respondent's dis- charge of employee Walsh violated Sec. 8(aX1) of the Act. Contrary to FRANK H. ITKIN, Administrative Law Judge: The the contentions raised by Respondent in its exceptions, the evidence es- unfair labor practice charge was filed in this case on tablishes that Walsh's letter on behalf of discharged employee McCarthy August 14 and was amended on September 10, 1980. The was voluntarily undertaken by Walsh in support of and in concert with a complaint issued on September 26 1980. A hearing was statutory employee and, thus, it is clear that Walsh did not act alone or on a matter solely of personal concern. See Little Rock Crate & Basket conducted on May 7 and 8, 1981, in Boston, Massachu- Co., 227 NLRB 1406 (1977); Schlegel Oklahoma. Inc., 250 NLRB 20, 24 setts. Briefly, the General Counsel contends that Faulk- (1980). Accordingly, we reject Respondent's contention that this case ner Hospital (herein called Respondent or the Hospital) must be considered under the principle of Alleluia Cushion Co., Inc., 221 violated Section 8(a)(1) of the National Labor Relations NLRB 999 (1975). While Respondent further contends that Walsh's letter on behalf of McCarthy compromised the integrity of its security system, Act, as amended, by discharging Charging Party John B. the evidence in this regard contains no factual basis demonstrating any Walsh on or about April 4, 1980, "because Walsh gave a specific manner in which Walsh's letter actually or potentially compro- written statement to a fellow employee in connection mised the security of Respondent's facility in a manner warranting an in- with [the] fellow employee's claim for unemployment trusion upon Walsh's exercise of concerted activities otherwise protected by the Act. Accordingly, in agreement with the Administrative Law compensation and because Respondent believed that Judge, we find that Respondent's discharge of Walsh was attributable to Walsh, in giving [this] written statement . .. assisted Walsh's protected concerted activities and, thereby, tended to interfere [the] fellow employee in a grievance pertaining to [the with the exercise of Section 7 rights in violation of the Act. fellow employee's] discharge." The General Counsel also In accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the contends that Respondent's representatives, in connec- backpay due based on the formula set forth therein. tion with the above incident, made coercive statements 259 NLRB No. 52 FAULKNER HOSPITAL 365 to Walsh, in further violation of Section 8(aXl) of the General Counsel's Exhibit 2 is that report and recites the Act. Respondent denies that it has violated the Act as al- McCarthy incident, in pertinent part, as follows: leged. Respondent also contends, inter alia, that Walsh was, at all times pertinent to this case, a supervisor [T]he driver of the sedan in question exited and within the meaning of Section 2(11) of the Act. came to the rear of his car immediately. It was Upon the entire record, including my observation of Jerry McCarthy (painter-Balco) who was driving the witnesses, and after due consideration of the briefs and he stated, "Hey Jack we aren't doing anything" filed by counsel, I make the following: . . . "just out having a few beers." At this point I suggested to Jerry that this wasn't the spot to hang FINDINGS OF FACT around having a beer, and that I was trying to save Respondent, with facilities on Centre Street in Boston, him some trouble. Jerry agreed and I started to the is admittedly an employer engaged in commerce. Charg- building with officer O'Brian, when Jerry asked if ing Party John B. Walsh started working for the Hospi- we could leave the third floor door open so that he tal as a garage attendant about June 1975. Later, about could go to the bathroom. It was apparent in March 1976, Walsh became a security officer or guard at Jerry's intoxicated state that I could be talking all the Hospital. And about August 1977, Walsh was given night, so I offered to stay while he went to the the title "security supervisor."' Walsh, during the period bathroom. Jerry commented, "No thanks buddy I'm relevant to this case, worked from midnight to 8 a.m., 5 not ready yet." days a week. In addition, the Hospital employed Gerald McCarthy as a maintenance employee prior to May Walsh next testified that, on the following day, Febru- 1979. At that time, the Hospital contracted with Balco ary 29, McBrine stated to Walsh that "McCarthy defi- Corporation for the performance of its maintenance nitely stole the typewriters," "he was going to be fired" work, and McCarthy then became an employee of Balco. by Balco, and he had a criminal record. Later, on March Walsh testified that about 2:20 a.m. on February 28, 3, McBrine again told Walsh that McCarthy "was being 1980, while performing guard duties at the Hospital, he fired." McBrine then stated the reasons for McCarthy's and guard Francis O'Brian investigated the unauthorized firing, as follows: "[H]e broke a Balco corporate policy presence of a motor vehicle on the third floor of the in drinking on the property and he was intoxicated on Hospital's garage. Walsh recalled the incident, as fol- the property." Walsh, during this discussion with lows: McBrine, "pointed out to McBrine that my report said that he [McCarthy] was intoxicated, but . . . I didn't see Mr. McCarthy came out of a th car, and he said, any liquor." McBrine assured Walsh: "[D]on't worry "Jack, we're not doing anything," and he bumped about it--he's being fired for being intoxicated on the into his car, and I saw that he was pretty intoxicat- about t-he's beW g fired for being toxMcated on the ed. ' And . I. said,. "property." Walsh expressed concern to McBrine because, ed. And I said, "Jerry, I didn't say you were doing anything. I saidJ, what are y you doing?" He said, as Walsh explained, "I didn't think that was right to use anything. I said, what are you doing?" He said, "well, we're just having a few beers."'2 my report like that when he was just trying to investi- gate about typewriters being stolen." McBrine again as- * * * * * sured Walsh: "[N]ot to worry about it." Thereafter, about March 6, as Walsh further testified, So, I told Mr. McCarthy ". . Jerry, this isn't McCarthy telephoned Walsh at the Hospital. McCarthy the place for having beers." And I started walking wanted "to talk" to Walsh and Walsh agreed to meet toward the third floor door, and on the way . . I with McCarthy. Walsh later telephoned his superior, said, "Jerry, why don't you go some other place." McBrine, and had the following conversation: And he asked me to open up the third floor door so that he could go to the bathroom, [and] I said I I [Walsh] called Mr. McBrine in his office to tell couldn't do that. him that McCarthy had called me and he wanted to That ended the incident, and Walsh and O'Brian "pro- speak to me ... . Mr. McBrine said, why do I even ceeded down to the Emergency Room." bother getting involved . . . you know he stole the Walsh, as he further testified, was notified later that typewriters, but I said, we're not sure who stole morning that "two typewriters were missing" from the them. And that was all he said. Hospital. Consequently, about 10 a.m. that same day, On the following day March 7 Walsh met wit Walsh informed Security Chief Joseph McBrine that Mc- McBrine and again discussed the McCarthy matter. This McBrine and again discussed the McCarthy matter. This Carthy "had been on the Hospital premises last night." McBrine suspected that McCarthy "stole them [the type- time, as Walsh recalled, Mcrine said, t[ylou better writers], or so he thought," and instructed Walsh to drop this thing or you are going to get yourself in a lot "write up an incident report on the night's activities." of trouble. Later, on March 12, McCarthy again telephoned 'There is a dispute here as to whether Walsh was in fact a supervisor Walsh at the Hospital. Walsh recalled: under Sec. 2(11) of the Act. The evidence pertaining to his status is dis- cussed infra. He [McCarthy] was pretty drunk. And he started ' There was also an unidentified person in McCarthy's vehicle at the threatening me. He started calling me fucking as- time. shole . . . and he said he was going to get me . . 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and he can't believe that I would lie about him in know." And I said, "but I can't." And he said, my report. "Well, do what you have to do." Then he referred to my report again, and he said, McCarthy told Walsh, "[Y]ou never saw me in the Hos- there's a lie on my report on the third page, and it pital with liquor." Walsh agreed. McCarthy asked, says: Jerry returned back to his car to finish his "[Tlhen why did you say you saw me in the Hospital beers, and he said, well, then he had beers with with liquor." Walsh responded, "I never did." McCarthy him. stated, "[T]hat's not what I was told when I was ques- And, I said, no, that was what I was informed of tioned by Mr. McBrine and the Boston police officer." by Jerry. I said, I didn't see him with any liquor. Walsh promised to "look into this and get back" to Mc- He said, oh, you didn't? And I said, Mr. McBrine, I Carthy. said, Joe, that's what I've been yelling about for the On March 13, Walsh confronted McBrine at the Hos- last two or three weeks here. I said, and everyone pital, asking McBrine, "[H]ad he used a bluff interroga- seems to be misunderstanding me and overlooking tion on McCarthy." Again, McBrine said, "[W]hat are the damn thing. So, that was pretty much the end you worried about"-"he stole the typewriters, right?" of the conversation. Walsh was "upset" and "pretty loud" in this conversa- tion. Walsh asked McBrine: About March 28, 3:40 a.m,, McCarthy telephoned Walsh at the Hospital. McCarthy wanted to know if [Dd you [McBrine] read off the record and then Walsh was "going to tell the truth." Walsh agreed that insinuate that I [Walsh] had also seen him with he would tell the truth about the incident. McCarthy liquor in the Hospital? Mr. McBrine said, yes.. then explained to Walsh, in part as follows: then explained to Walsh, in part as follows: but don't you worry about it. I [McCarthy] have an unemployment hearing in Walsh again expressed his concern and fears to McBrine. I t McCarthyn have an unemployment hearing McBrine replied, "[S]tay away from him." Walsh ex- the morning at 8 a.m. .. I need a letter saying plained to McBrine how difficult it was not to receive that you never saw me with liquor. . . . You know telephone calls from McCarthy. McBrine ultimately re- I have a wife and eight kids . . . all they want is plied, "[D]o what you have to do."' what is coming to them from unemployment. Walsh further testified that about March 16 McCarthy Walsh agreed to write such a "letter." again telephoned him at the Hospital and "threatened" Walsh prepared a document (G.C. Exh. 3) and handed him "because I lied about him [being] on the Hospital it to McCarthy later that morning "right outside the property having liquor." Again, Walsh acknowledged to Hospital ... on Centre Street." Walsh's meeting with McCarthy: "I never saw you with any liquor." Walsh McCarthy, in front of the Hospital, took about 8 to 10 thereafter spoke to McBrine about this incident. McBrine minutes. Walsh then returned to work.4 General Coun- again warned Walsh: "You are going to get yourself in sel's Exhibit 3 states: trouble over it." Walsh, however, insisted "that I [Walsh] was going to go on with this investigation, and Upon your request for an urgent written reply con- he [McBrine] said . . . go ahead." Later, about March cerning alcoholic beverages on the night of Feb. 19, Walsh also spoke with Hospital Vice President David 26-27th, my written report makes mention to the Folker about this matter. Walsh expressed to Folker his fact that I thought you were under the influence of concern and fear of McCarthy and that "somebody here alcohol. But due to the urgency of another call, I . . . [was] saying I had seen Mr. McCarthy on the prem- didn't recall you having any alcohol in your vehicle ises with alcohol, and ... I don't even know if this guy or on your person. was stealing anyway." Folker told Walsh, "[D]on't worry about the stealing"-"don't worry about it." Subsequently, about 8 a.m. on March 28, Walsh was Subsequently, about March 23, Walsh again spoke to instructed to meet with McBrine. McBrine then apprised McBrine. Walsh testified: Walsh that the "head of Balco," Robert Campbell, had telephoned McBrine and informed him "that McCarthy I wanted to know what we could do to straight- . .. had a letter from "Walsh" contradicting [the] origi- en this out. I said, "I'm getting put in a real bad po- nal report"; that McCarthy "had gone to [his] Union"; sition." I said, "This guy has been told a lie to, I and that McCarthy was "going to cause some litigation have an obligation as a state special police officer to problems for Faulkner." Walsh acknowledged to straighten it out." I said, "You know, I didn't ask McBrine that he had given McCarthy a written state- for this trouble, I don't know what to do." ment. McBrine faulted Walsh for giving such a state- And Joe [McBrineJ told me not to worry about ment. Walsh was later taken to Folker's office. Folker it. He said, "Just keep your nose out of it, you was also "real upset" because Walsh had given "a letter like that" to McCarthy. During this discussion, Folker ' Walsh then apprised McBrine, in the presence of another security su- asked Walsh: "[I]f [he] was ordered to stay away from pervisor, John Curtin: I [Walsh] had better take care of the situation with McCarthy. 'Walsh previously had shown G.C. Exh. 3 to guards DeVincenzo and Hoping to meet him when he was sober and the most it would O'Brian-"they knew I was going to give [McCarthy] a statement." become was a push match. And it was left that way. I told them I Also, DeVincenzo went "outside, standing behind a tree," and witnessed would keep them informed of the situation. Walsh's meeting with McCarthy, "out of concern" for Walsh. FAULKNER HOSPITAL 367 Mr. McCarthy?" Walsh responded, "I was advised to 6.6 Folker previously had spoken with Robert Campbell, stay away."5 Folker ultimately told Walsh that he was a representative of Balco, about this incident: "fired." Folker explained, inter alia, "It was a dumb Mr. Campbell then asked me if I [Folker] would thing to do." give him a letter indicating what the Hospital's pos- ture would be . .. concerning this. There, I think, Walsh testified that about April I he received in the had also been some discussion with regard to Union mail a letter from McBrine, dated March 28, 1980 (G.C. support of McCarthy in whatever . . . mechanism Exh. 4). McBrine notified Walsh in this letter that Walsh would be necessary. I think that the letter or the was "suspended without pay" "pending investigation" of discussion was a question to ally, for lack of a "charges." The enumerated "charges" state: "[H]av[ing] better word, or to get a clear cut support in terms several telephone conversations" with McCarthy "there- of what the Hospital's view was. by disobeying a lawful command"; "giv[ingl . . . Mc- by disobeying a lawful command"; "giv[ing . . . Mc- Folker further testified that-after being apprised that Carthy a written document"; "havin a clandestine Walsh had given McCarthy a supplemental statement- meeting with" McCarthy "while lawfully on duty"; and he spoke to Balco's vice president, Anthony Shaker, and "leaving] your post . . . without proper authority." we... generally agreed to wait and see if the note sur- (Ibid.) faced or whatever." Folker added; "The information Thereafter, on or about April 4, Walsh went to the concerning the note surfaced immediately thereafter." Hospital and spoke with, among others, McBrine and See General Counsel's Exhibit 8, a letter from the Inter- Folker. Walsh recalled that Folker told him that he national Brotherhood of Firemen and Oilers, AFL-CIO, would be permitted to "resign" for "any reason that [he] to Shaker, dated April 7, referring to McCarthy's "griev- decided and . . . they would give [him] recommenda- ance" and Walsh's note to McCarthy. Also, see General tions", because Folker, as well as McBrine, regarded him Counsel's Exhibit 7, a letter from Folker to Shaker, as a "good employee." Walsh, however, wanted "time to dated April 10, acknowledging "receipt of the informa- talk to [his] advisers." Walsh later received a letter from tion provided me concerning the letter prepared by Mr. McBrine, dated April 7, 1980 (G.C. Exh. 5). McBrine John B. Walsh and delivered by him to Gerald McCar- notified Walsh in this letter that Walsh was "terminated thy." Folker also testified that during his conversation as of 3:30 p.m. April 4." The cited reasons for this action with Shaker, which resulted in the April 10 letter (G.C. are: "[H]av[ing] several conversations with . . . McCar- Exh. 7), he was told the following: thy . . . disobeying a lawful command"; "supply[ing] him with written information"; "leav[ing] your post"; The business agent for the Union . . had told Mr. and "exercis[ing] poor judgment." (Ibid.) Shaker that the Union felt that there was a [substan- Walsh further testified that prior to his meeting with tial] grievance, or at least some basis for the griev- McBrine and Folker on or about April 4, Hospital em- ance, for reinstatement of Mr. McCarthy, because ployees had circulated a petition on his behalf. At the of conflicting representation of events. April 4 meeting, as Walsh recalled; Folker generally acknowledged that Walsh had an They (Management] said he [the employee circulat- "exemplary record" while employed at the Hospital; that ing the petition] was out in left field, that he Walsh was "offered a chance to resign which he de- ing the petition] was out in left field, that he clined"; and that "the release of this letter by Mr. Walsh wouldn't be long with the Faulkner, something [to McCarthy] was going to cause all kinds of problems would be done about him. They wanted a copy of for Balco and for Faulkner" and "could raise difficulties the petition. They wanted to know if it was Union between Balco and McCarthy's Union." Folker admit- between Balco and McCarthy's Union." Folker admit- affiliated or . . . had something to do with the tedly referred to a "petition" signed by Hospital employ- Union, and I told them no .......... They wanted a ees during his meeting with Walsh on or about April 4. copy of it and I told them they could not have a Finally, Folker acknowledged that, previously, he had copy of it. They wanted to know what it was stated that Walsh "is incapable of lying"-"he had a about; I told them it had something to do with me compulsion to tell the truth." and the way the situation was handled. I credit the testimony of Walsh as detailed above. Walsh's testimony stands in large part uncontradicted by David Folker, vice president of the Hospital, testified, the testimony of Folker or McBrine. Insofar as the above inter alia, that McCarthy worked for the Hospital prior testimony of Walsh differs with the testimony of Folker to May 1979 and then became an employee of Balco per- or McBrine, I am persuaded on this entire record, in- forming the same or similar duties; that Balco has a col- cluding the demeanor of the witnesses, that the detailed lective-bargaining agreement with a union covering its account of this sequence by Walsh is accurate, reliable, employees and containing a grievance procedure; and and trustworthy. Indeed, I agree with Folker's earlier ac- that he, Folker, recommended to Balco, in his letter knowledgment to the effect that Walsh "is incapable of dated March 7, 1980, that McCarthy be given "the ful- lying" and "had a compulsion to tell the truth," qualities lest disciplinary action." See General Counsel's Exhibit 'Folker's March 7 letter to Balco asserts, inter alia, "Mr. McCarthy McBrine explained to Folker: "[HMe [McBrine] guessed it was only was consuming the contents of a recognizable can of beer during his dis- advice that he really gave" Walsh. cussion with the security" officer. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which it seems are becoming more difficult to find these In addition, the Board has held that an employer "may days. And, as discussed below, it is this "compulsion" or violate Section 8(a) of the Act not only with respect to desire on Walsh's part "to tell the truth" and do the actions taken affecting [his] own employees, but also by "right thing," which resulted in his discharge. actions affecting employees who do not stand in such an immediate employer-employee relationship." Lucky Discussion Stores, Inc., 243 NLRB 642, 643 (1979). For, as the Section 8(a)(1) of the National Labor Relations Act Board, in agreement with the Trial Examiner, explained makes it an unfair labor practice "to interfere with, re- in Fabric Services, Inc., 190 NLRB 540, 541-542 (1971): strain, or coerce employees in the exercise of their rights guaranteed in section 7." The presentation of employee grievances pursuant to the terms of a collective-bargain- Act or in any delineating provision of it for constru- ing agreement comes within the protection of Section 7. ing Section ) as safeguarding employees in the As the Sixth Circuit stated in N.L.R.B. v. Halsey W. exercise of the Section 7 rights only from infringe- F. 2d 406 408 (1965): ments at the hands of their own employer. To the 'Taylor Company, 342 F. 4064081965contrary, the specific language of the Act clearly We are not concerned in this case with the merit manifests a legislative purpose to extend the statu- or lack of merit of [the employee's] grievance. But tory protection of Section 8(a)(l) beyond the imme- it is clear that Sec. 7 protects his right to utter it as diate employer-employee relationship. Thus Section a matter of concerted activity with other employees 8(a)(l) makes it "an unfair labor practice for an em- for mutual aid ployer-to interfere with, restrain, or coerce em- ployees in the exercise of rights guaranteed in Sec- Also see N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d tion 7." And Section 2(3) declares, "The term em- 495, 500 (2d Cir. 1967). Equally protected under Section ployee shall include any employee, and shall not be 7 is the pursuit of employee unemployment compensation limited to the employees of a particular employer, claims. For, as the Board explained in Self Cycle & unless the Act explicity states otherwise .... Marine Distributor Co., Inc., 237 NLRB 75, 76 (1978): Moreover, Section 2(9), which defines "labor dis- pute" as including "any controversy ... regardless It has long been recognized that this Board is re- of whether the disputants stand in the proximate re- quired to administer the Act with careful accommo- of employer and employee" further dis- dation to the statutory scheme a aa whole. It is closes a statutory aim to give the Act's various pro- equally well settled that the matter of unemploy- hibitions a broad rather than narrow reading ment compensation benefits arises out of the em- except, of course, where the prohibition s lmited in ployment relationship . . . and is one aspect of the excepts internalof course, where isthspepcifically restricted by other express language of the Act. See Phelps Dodge The Board, in applying these principles, has held that Corp. v. N.LR.B., 313 U.S. 177, 192. an employer violates Section 8(a)(l) by laying off an em- Also see A. M Steigerwald Co 236 NLRB 1512 1515 ployee because he "assisted" and "submitted an affidavit" on behalf of another employee in connection with the ( ' . latter's complaint before the Massachusetts Commission Applying these principles to the credited evidence of Against Discrmplaint before the Massachusetts Womenms Hos- record here, I find and conclude that Respondent violat- Against Discrimination. The Massachusetts Women's Hos- pital d/b/a Parker Hill Medical Center, 227 NLRB 1289 ed Section 8(a)(1) by discharging employee Walsh be- (1979). Likewise, the Board has held that an employer cause Walsh assisted and gave a written statement to em- violates Section 8(aX1) by discharging an empoeb-ployee be- ploye McCarthy used in support of McCarthy's pending cause he provided "help" and "support" to another em- grievance proceeding. Walsh, in furnishing McCarthy ployee in support of the latter's grievance. Theatre Now, with this statement, was acting in good faith and engag- Inc. and The Grease Company, 211 NLRB 525, 534 ing in conduct plainly protected by Section 7 of the Act. (1974), 221 NLRB 1110 (1975), reversed 567 F.2d 531 Thus, Walsh was employed by the Hospital as a guard. (2d Cir. 1977). And, the Board has held that an employer McCarthy was, prior to May 1979, employed by the violates Section 8(a)(1) by laying off an individual: Hospital as a maintenance employee. The Hospital, in May 1979, contracted its maintenance work to Balco. . . . because he had, pursuant to request, furnished McCarthy then became an employee of Balco. Walsh, on a statement which [the union] proffered shortly February 28, 1980, wrote an incident report concerning thereafter, during a contractual arbitration proceed- McCarthy's presence at the Hospital. See General Coun- ing, to support a rank-and-file worker's grievance. sel's Exhibit 2. Walsh's superiors, McBrine and Folker, Rohr Industries, Inc., 220 NLRB 1029 (1975).7 were most anxious to recommend to Balco that it fire McCarthy. McBrine and Folker, through design or care- In Rohr Industries. supra, the laid-off individual was found to be a lessness, interpreted Walsh's report to state that McCar- "supervisor," under the Act. In the instant case, as discussed below, I thy was observed by Walsh at the Hospital with alcohol- find Walsh to be an employee and not a supervisor as claimed. Conse- iC beverages on his possession. Folker in fact relayed this quently, it is unnecessary for me to reach the question, whether the dis- false information to Balco in his letter dated March 7, charge of a "supervisor," under the circumstances present here, violates Sec. 8(aXI). See, generally, Rohr Industries, supra. Theatre Now, Inc., 1980. Walsh, however, repeatedly attempted to correct supra; and Alfred M. Lewis, Inc., 250 NLRB 496 (1980), and cases cited. this mistake. Walsh was ultimately asked by McCarthy FAULKNER HOSPITAL 369 to give McCarthy a statement truthfully explaining the foregoing the exercise of such authority is not of a incident. Walsh prepared such a statement. See General merely routine or clerical nature, but requires the Counsel's Exhibit 3. McCarthy turned this statement use of independent judgment. over to his Union and it was used in processing his grievance under the Union's contract with Balco. The Actual existence of true supervisory power is to be dis- Hospital, particularly Folker, had fully collaborated with tinguished from abstract, theoretical, or rule-book au- Balco in causing McCarthy's discharge and considered thority. It is well settled that a rank-and-file employee itself, in effect, an "ally" of Balco in this endeavor. The cannot be transformed into a supervisor merely by in- Hospital therefore became annoyed at Walsh's insistence vesting him or her with a "title and theoretical power to that his earlier report to the Hospital be limited to show perform one or more of the enumerated functions." only what he had actually observed. N.LLR.B. v. Southern Bleachery & Print Works, Inc., 257 In sum, the Hospital fired Walsh because Walsh had F.2d 235, 239 (4th Cir. 1958), cert. denied 359 U.S. 911 furnished McCarthy with a statement truthfully stating (1959). What is relevant is the actual authority possessed what Walsh had observed. The statement, as noted, was and not the conclusory assertions of a company's offi- used incidental to McCarthy's grievance proceeding. I cials. And, while the enumerated powers listed in Sec- regard Walsh's attempt here to furnish McCarthy with a tion 2(11) of the Act are to be read in the disjunctive, truthful and reliable account of the incident in letter the section also "states the requirement of independence form no less protected than if Walsh had appeared per- of judgment in the conjunctive with what goes before." sonally at an unemployment compensation hearing or Poultry Enterprises, Inc. v. N.LR.B., 216 F.2d 798, 802 grievance hearing and there explained his earlier incident (5th Cir. 1954). Thus, the individual must consistently report. display true independent judgment in performing one of The Hospital claims, inter alia, that Walsh was fired the functions in Section 2(11) of the Act. The exercise of because, in speaking with McCarthy, he violated a some supervisory tasks in a merely "routine," "clerical," "lawful command." The credible evidence of record "perfunctory," or "sporadic" manner does not elevate a makes it clear that Walsh was not in fact given such a rank-and-file employee into the supervisory ranks. "command." The Hospital claims that Walsh was fired NL.R.B. v. Security Guard Service Inc., 384 F.2d 143, because he had a "clandestine meeting" with McCarthy 146-149 (5th Cir. 1967). The existence of independent and left his post "without proper authority." The credi- judgment alone will not suffice; "the decisive question is ble evidence of record shows that Walsh's 8- to 10- whether [the individual involved has] been found to pos- minute meeting with McCarthy in front of the Hospital sess authority to use [his or her] independent judgment was not "clandestine" and did not cause him to leave his with respect to the exercise by [him or her] of some one post. The credible evidence of record also shows that or more of the specific authorities listed in § 2(11) of the guard employees would leave their duty stations for per- Act." N.L.R.B. v. Brown & Sharpe Manufacturing Com- sonal matters for more substantial periods without being pany, 169 F.2d 331, 334 (Ist Cir. 1948). In short, "[s]ome disciplined or fired. In short, Folker, annoyed at and em- kinship to management, some empathetic relationship be- barrassed by Walsh's "compulsion to tell the truth" tween employer and employee, must exist before the about this incident, fired him, in vio lation of Section latter becomes a supervisor for the former." N.LR.B. v. 8(a)X1) of the Act. Security Guard Service, Inc., supra, 384 F.2d at 149. In addition, Folker engaged in conduct which tended On this record, I find and conclude that Walsh did not to impinge upon employee Section 7 rights when he sufficiently possess the authority to use his independent stated to Walsh on April 4-in connection with a peti- judgment with respect to the exercise by him of one or tion then being circulated by Walsh's fellow employees more of the specific authorities and indicia enumerated in in an attempt to have Walsh reinstated-that the employ- Section 2(11) of the Act. He has not been shown here to ee circulating the petition "was out in left field" and "he have "responsibly" directed the employees or to have wouldn't be long with" the Hospital. Folker, at the same "effectively" recommended "such action." Thus, Walsh, time, "wanted a copy of the petition" and quizzed Walsh as he credibly testified, worked from midnight to 8 a.m. if it "had something to do with the Union." The circulat- He did not participate in the hiring process. In the past, ing of such a petition is protected concerted activity and he had recommended, without success, the hiring of var- Folker's statements, under the circumstances present ious persons. He had no authority to discipline or dis- here, tended to discourage and inhibit such activity, in charge employees. He recalled that he had recommended violation of Section 8(aX)(1). See Kings Terrace Nursing that an employee be disciplined and his recommendation Home and Health Facility, 229 NLRB 1180, 1183 (1977). was ignored by Chief McBrine. He did not have the au- The Hospital asserts that Walsh was a "supervisor" thority to promote or recommend the promotion of em- beyond the protection of the Act. A "supervisor" is de- ployees. All job evaluations, including the evaluation of fined in Section 2(11) of the Act, as: Walsh, were performed by Chief McBrine. He explained that, in the past, he had attempted to become involved in . . . any individual having authority, in the interest the evaluation process and was instructed by Chief of the employer, to hire, transfer, suspend, lay off, McBrine that this was not his job. He did not have au- recall, promote, discharge, assign, reward, or disci- thority to assign or responsibly direct employees. The pline other employees, or responsibly to direct performance of chores on the midnight shift was handled them, or to adjust their grievances, or effectively by the three to four security employees on a voluntary recommend such action, if in connection with the and "democratic" basis. He did not receive advance re- 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quests from employees for time off. Such requests went THE REMEDY to Chief McBrine. On occasion, he would be told that an To remedy the unfair labor practices found above, Re- employee was going home early, however, he was once spondent will be directed to cease and desist from engag- criticized by Chief McBrine for permitting this. He was ing in such conduct, or like or related conduct, and to hourly paid and received overtime. He made about 50 post the attached notice. Respondent will also be direct- cents more per hour principally because of his grade ed to offer to employee Walsh immediate and full rein- level. He could not authorize overtime work. His job statement to his former position or, if that position no duties included: riding through the garage, releasing longer exists, to a substantially equivalent position, with- bodies, taking telephone calls, making rounds, pulling out prejudice to his seniority or other rights and privi- medical records, responding to pharmacy calls, collect- leges, and make him whole for any loss of earnings sus- ing patient valuables, dealing with unruly persons, es- tained as a result of Respondent's unlawful conduct, by corting nurses, and relaying messages to medical services paying him a sum of money equal to that which he nor- or to an administrator or director on call. He spent about mally would have earned from the date of the discrimi- 95 percent of his time performing the same chores which nation to the date of Respondent's offer of reinstatement, his coworkers performed. When he was given the title less net earnings during such period, with backpay com- "supervisor," there was no discussion about his authority puted as provided in F W. Woolworth Company, 90 and he was given no special instructions. He periodically NLRB 289 (1950), and with interest computed as pro- switched shifts with rank-and-file security officers and vided in Florida Steel Corporation, 231 NLRB 651 "supervisors." This would result, on occasion, in no des- (1977).'0 ignated "supervisor" being present on the night shift.8 ORDER" In conclusion, I find Walsh to be an employee. I find that the Hospital, in violation of Section 8(a)(1), fired The Respondent, Faulkner Hospital, Boston, Massa- employee Walsh because he assisted and gave a written chusetts, its officers, agents, successors, and assigns, shall: statement to employee McCarthy, which was used by 1. Cease and desist from: McCarthy in his grievance proceeding. Further, I find (a) Discharging employees because they have engaged in activities protected under Section 7 of the National that the Hospital violated Section 8(aX1) by coercively Labor Relations Act. questioning employee Walsh about an employee petition (b) Coercively interrogating employees about their ac- being circulated to get Walsh reinstated, and by threaten- tivities protected under Section 7 of the Act, and threat- ing that the employee circulating that petition would be, ening employees with discharge because they have en- in effect, fired. gaged in such protected activities. (c) In any like or related manner interfering with, re- CONCLUSIONS OF LAW straining, or coercing employees in the exercise of their 1. Respondent is an employer engaged in commerce as rights guaranteed in Section 7 of the Act. alleged. 2. Take the following affirmative action necessary to 2. Respondent violated Section 8(aXl) of the Act by effectuate the purposes and policies of the Act: discharging employee Walsh because he assisted and (a) Offer employee John Walsh immediate and full re- discharging employee Walsh because he assisted and . no instatement to his former position or, if that position no gave a written statement to employee McCarthy, which gave a written statement to employee McCarthy, which longer exists, to a substantially equivalent position, with- statement was used by McCarthy in a grievance pro- out prejudice to his seniority or other rights and privi- ceeding pertaining to McCarthy's discharge. Respondent leges, and make him whole for any loss of earnings in further violated Section 8(a)(1) by coercively interrogat- the manner set forth in this Decision. ing employee Walsh about an employee petition being (b) Preserve and, upon request, make available to the circulated, seeking the reinstatement of Walsh, and by Board, or its agents, all payroll and other records as set threatening that the employee circulating the petition forth in this Decision. would be fired. (c) Post at its facility in Boston, Massachusetts, copies 3. The unfair labor practices found above affect com- of the attached notice marked "Appendix.""2 Copies of merce as alleged.9 'o See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respondent will preserve and make available to the Board, upon request, 'I credit the above testimony of Walsh. As noted, he impressed me as all payroll records, social security payment records, timecards, personnel a trustworthy and credible witness. His testimony relating his job authori- records and reports, and all other records necessary and useful to deter- ty and duties is substantiated in large part by the testimony of O'Brian. mine compliance with and the amount of backpay due under the terms of Folker and McBrine, in their testimony, cited job descriptions and var- this Decision. ious memoranda, attempting to attribute to Walsh authority and job " In the event no exceptions are filed as provided by Sec. 102.46 of duties involving discretion and alleged indicia of supervisory or manage- the Rules and Regulations of the National Labor Relations Board, the rial status. I do not credit these general and conclusory assertions of au- findings, conclusions, and recommended Order herein shall, as provided thority. I am persuaded here that Walsh has truthfully and accurately re- in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and lated his duties and authority. become its findings, conclusions, and Order, and all objections thereto I Respondent moves to correct the transcript (June 26, 1981). The shall be deemed waived for all purposes. General Counsel opposes some five of the requested corrections (June 30, " In the event that this Order is enforced by a Judgment of a United 1981). Under all the circumstances the proposed corrections which are States Court of Appeals, the words in the notice reading "Posted by undisputed are granted, and those which are disputed will be denied. The Order of the National Labor Relations Board" shall read "Posted Pursu- transcript, in this limited respect, is sufficiently understandable and no ant to a Judgment of the United States Court of Appeals Enforcing an sufficient reason for further change has been demonstrated. Order of the National Labor Relations Board." FAULKNER HOSPITAL 371 said notice, on forms provided by the Regional Director to insure that said notices are not altered, defaced, or for Region 1, after being duly signed by Respondent's covered by any other material. representative, shall be posted by it immediately upon re- (d) Notify the Regional Director for Region 1, in writ- ceipt thereof, in conspicuous places, and be maintained ing, within 20 days from the date of this Order, what for 60 consecutive days. Reasonable steps shall be taken steps Respondent has taken to comply herewith.