Huntington Hospital

THE HUNTINGTON HOSPITAL The Huntington Hospital, Inc. and National Union of Hospital and Health Care Employees, 1199 W. Va., Retail, Wholesale and Department Store Union, AFL-CIO and Margaret E. Brinegar. Cases 9-CA-9411 and 9-CA-9431 April 25, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On December 16, 1976, the National Labor Relations Board issued the attached Proposed Decision and Order (227 NLRB 316) in this proceeding in which it proposed finding that the Respondent, The Huntington Hospital, Inc., violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by discharging employee Margaret E. Brinegar and independently violated Section 8(a)(1) of the Act by interrogating Brinegar. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of the 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 Proposed Decision and Order in light of the exceptions and brief and has decided to affirm the proposed rulings, findings, and conclusions and to adopt the Proposed Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Proposed Order set forth in the attached Proposed Decision, and hereby orders that the Respondent, The Hunt- ington Hospital, Inc., Huntington, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said Proposed Order. December 16, 1976 PROPOSED DECISION AND ORDER' The charge in Case 9-CA-9411 was filed on June 10, 1975, by National Union of Hospital and Health Care Employees, 1199 W. Va., Retail, Wholesale and Depart- ment Store Union, AFL-CIO, herein called the Union, and the charge and amended charge in Case 9-CA-9431 were 229 NLRB No. 44 filed on June 18 and July 19, 1975, respectively, by Margaret E. Brinegar, an individual, alleging that The Huntington Hospital, Inc., hereinafter called Respondent or the Hospital, unlawfully discharged Brinegar. On July 31, 1975, an order consolidating cases, consolidated complaint, and notice of hearing issued, alleging that the Respondent interrogated employees on or about May 25 and June 12, 1975, in violation of Section 8(aX)() of the Act, and discharged Margaret E. Brinegar on or about June 5, 1975, in violation of Section 8(a)() and (3) of the Act. Thereafter, on August 8, 1975, Respondent filed its answer to the complaint in which it admitted the discharge of Brinegar, but denied that it had committed any unfair labor practices as alleged in the complaint. On October 21 and December 11, 1975, a hearing was held before Administrative Law Judge Milton Janus in Huntington, West Virginia. Following the close of the hearing, the General Counsel and Respondent filed briefs with the Administrative Law Judge. By letter of February 13, 1976, Chief Administrative Law Judge Thomas N. Kessel notified the parties that Adminis- trative Law Judge Janus had died on January 31, 1976, and that various alternatives were available for disposition of the case,2 including settlement of the case, transfer to the Board for issuance of a Proposed Decision and Order on the record as made, designation of another Administrative Law Judge to prepare a Decision on the record as made, or a hearing de novo before another Administrative Law Judge. By letters dated March 2, 1976, the General Counsel and the Respondent notified the Chief Administrative Law Judge of their willingness to transfer the instant matter directly to the Board. By letter dated March 12, 1976, the Union advised the Chief Administrative Law Judge of its consent to a transfer of the case.3 Accordingly, on March 22, 1976, the Chief Administrative Law Judge advised all parties that pursuant to their agreement the instant matter was being transferred to the Board, and, on March 24, 1976, the Board ordered that the proceeding be transferred to, and continued before, it. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor IAny party may, within 20 days from the date hereof, file with the Board in Washington, D.C., eight copies of a statement setting forth exceptions to this Proposed Decision and Order, together with seven copies of a bref in support of said exceptions and, immediately upon such filing, serve copies thereof on each of the other parties. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, Series 8, as amended, the findings, conclusions, and proposed Order 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. 2 See sec. 554(d) of the Federal Administrative Procedure Act. See also Sec. 102.36 of the Board's Rules and Regulations, Series 8, as amended: In the event the administrative law judge designated to conduct the hearing becomes unavailable to the Board after the hearing has been opened, the chief administrative law judge, or the presiding judge, San Francisco, California. as the case may be, may designate another administrative law judge for the purpose of further hearing or other appropriate action. 3 Although Brinegar was the Charging Party in Case 9-CA-943 1, she did not, other than as a witness for the General Counsel, participate at the heanng. Apparently. her interests have been represented by the General Counsel. 253 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board has delegated its authority in this proceeding to a three-member panel. The Board, having received and considered the briefs filed by the General Counsel and Respondent, and the entire record in this case, makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaint alleges, the answer admits, and we find that Respondent is, and at all times material herein has been, a nonprofit West Virginia corporation engaged in the operation of a hospital in Huntington, West Virginia; that during the representative 12-month period preceding issuance of the complaint the Respondent had a direct inflow, in interstate commerce, of goods and products valued in excess of $50,000 which it purchased and caused to be shipped to its Huntington, West Virginia, location directly from points located outside the State of West Virginia; and that, during the same representative period, the Respondent received gross revenues in excess of $250,000. Accordingly, we find, as alleged in the complaint, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and we find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Brinegar was hired on March 31, 1967, as a salad girl and worked in the kitchen. Sometime thereafter, according to Brinegar's uncontradicted testimony, John Guy, the owner of Guy Food Service, leased the food service facilities of the Hospital. On August 19, 1974, the Union commenced an organizing campaign among Respondent's employees. In the course of this campaign, Respondent discharged Kermit Chapman, a housekeeper, because of his activities on behalf of the Union. The Board, in a prior proceeding, found that Chapman was unlawfully discharged and ordered him reinstated with backpay.4 In April or May 1975, 5 the Union began another organizing campaign at the Hospital. On May 24, Brinegar, according to her uncontradicted testimony, learned that several of the dishwashers had signed union authorization cards and asked one of them to get a card for her. After signing the card, Brinegar asked for more cards so that she could distribute them to other employees. On the same day she distributed cards to five employees, four of whom signed them. Brinegar also talked with other employees that day about the Union. 218 NLRB 51 (1975). 5 All dates hereinafter are 1975 unless otherwise specified. 6 Since the record is unclear as to the correct spelling of Kees' name, we B. Interrogation of Brinegar According to Brinegar's uncontradicted testimony, she worked on May 25, the day after distributing the union cards, and then went on vacation until June 4. When she returned, Brinegar was called by Guy into the office of Dietary Manager Irene Kees. 6 Guy then asked her, "Mrs. Brinegar, what do you know about the Union?" To which Brinegar responded, "Not much, only what I read in the paper. I saw that they have people in St. Mary's and in the hospital here." Guy also informed her that he served 28 hospitals, only one of which had a union, and that he had more trouble from that hospital than all the rest. He also stated that usually a union did more harm than good. As previously stated, Guy owned Guy Food Service which operated the kitchen for Respondent. The only direct testimony as to this arrangement was Brinegar's statement that the kitchen was leased to Guy. Although Respondent's attorney stated at the hearing that Guy was merely a consultant to the Hospital, there is no record testimony as to his status. Respondent asserts in defense to these allegations that Guy was not its agent at any time material herein. Respondent contends that, even if Guy is found to be an agent of Respondent, Brinegar was a supervisor and therefore not entitled to the protection of the Act, and that, consequently, neither Guy's interrogation of her nor her subsequent discharge was unlawful. Respondent further contends that, even if Brinegar is found to be an employee, Respondent was not aware of her union activity, and therefore such activity cannot be the motive for any actions which Respondent took against her. C. Discharge of Brinegar Brinegar testified that on June 5, the day after she was questioned by Guy, he again called her into Kees' office when Brinegar reported for work. In the presence of Personnel Manager Robert Adkins, Guy stated, "Mrs. Brinegar, the Huntington Hospital no longer needs your service. We find your work as a supervisor unsatisfactory." When Brinegar asked what was wrong with her work, there was no reply. When Brinegar persisted in demanding the "real reason" she was fired, Adkins told her, "You was [sic] told the reason you was [sic] fired." An argument among Brinegar, Guy, and Adkins ensued regarding the quality of Brinegar's work and when she should leave the hospital. When Brinegar stated that she would not leave until they told her the "real reason" she was fired, Adkins threatened to call a security guard. After more argument, Brinegar turned in her keys to the dietary department and left the hospital, returning only to pick up her check the next day. Brinegar's testimony as to the foregoing was uncontradict- ed, and neither Guy nor Adkins testified at the hearing. have adopted the spelling utilized by Respondent in its brief, inasmuch as Kees is an employee of Respondent. 254 THE HUNTINGTON HOSPITAL IV. FINDINGS A. Agency Status of Guy Brinegar testified without contradiction that Guy ran the kitchen and thus was her supervisor. Additionally, Respon- dent's personnel director was present when Guy discharged Brinegar, and explicitly supported Guy's action. Therefore, "whether or not [Guy] was technically a 'supervisor' under the Act, his responsibilities put him in a position to be identified with management in the eyes of the employees and to translate to them the policies and desires of management." Accordingly, we conclude that, at all times material herein, Guy was held out to the employees by Respondent as its agents and we therefore find that Guy was the agent of Respondent. B. Brinegar's Discharge Brinegar worked the shift from 5:30 a.m. until 2 p.m. and had the following job duties: setting up patient trays, preparing salads and desserts for lunch for patients and patrons of the cafeteria, putting dishes away after meals, setting up the cafeteria for lunch, receiving telephone messages from nurses regarding patients' meals, and operating the cash register during lunch in the cafeteria. She further testified, as did other dietary department personnel called as witnesses by Respondent, including Assistant Manager and Dietitian Patricia Toler, that the job performed by dietary department employees was a routine one. Brinegar also helped to train new employees, as did other employees in the department. Several of the department employees also stated that Brinegar performed the same job as everyone else in the department. However, Brinegar apparently was the only employee who operated the cash register. When Kees was not at work, Brinegar allegedly was in charge of the department to the extent of calling a replacement if an employee did not come to work, correcting mistakes on timecards, and ordering food. As we note infra, however, Kees was seldom absent from work. Additionally, the evidence indicates that Brinegar autho- rized overtime on one date and only occasionally initialed timecards. Thus, the only record evidence in this regard is that in Kees' absence, Brinegar, on March 12, signed a pay advance for an employee, and on March 15 signed three overtime authorizations for other employees. All of these actions, however, were approved and countersigned by Personnel Manager Adkins. Although several of the employees testified that they referred to Brinegar as their supervisor, she testified that only once was she so informed by any official of Respondent. That one incident occurred in June 1974 when Supervisor Virginia Adkins left Respondent's employ due to illness. When Brinegar asked Kees who was to 7 Pittsburgh Metal Lithographing Co., Inc., 158 NLRB 1126, 1133 (1966). 8 Sterling Faucet Company, Texas Division, a Subsidiary of Rockwell Manufacturing Company, 203 NLRB 1031, 1032 (1973). 9 Indeed, Brinegar, who stated without contradiction that she was the most senior employee in the department, was paid $2.51 per hour as of the date of her discharge. Two other employees in the department, one of whom had I I years of seniority, were paid $2.50 per hour and a part-time employee was paid $2.10 per hour. 'o In 1971 or 1972, Bnnegar was made an "assistant supervisor" under a replace Mrs. Adkins, Kees told Brinegar that she was, but Brinegar's job duties did not change and she did not receive a raise.9 It is undisputed that Brinegar never hired, fired, suspended, laid off, promoted, disciplined, or adjusted grievances of employees, or recommended any of these actions, nor was she ever told that she had authority to do so. Brinegar unlike Kees wore a uniform like the other employees in the department and had a locker like the other employees. Furthermore, unlike Kees, Brinegar did not have her own office and was never told that she had access to personnel files. Brinegar never received any notice that she was a supervisor from Respondent's personnel manager10 or any management official other than Kees. Respondent's chief basis for its assertion that Brinegar was a supervisor within the meaning of Section 2(11) of the Act is the testimony of three employees that they considered her to be their supervisor. Respondent also relies on the fact that for approximately 5 hours during the day there was no other alleged supervisor in the kitchen aside from Brinegar, and that Brinegar approved timecard entries, authorized overtime, authorized pay advances, and called for replacements. We find no merit to Respondent's contention that the absence for several hours a day of any other supervisor establishes Brinegar's supervisory status, in view of the uncontradicted testimony of several witnesses that the kitchen work was rather routine. In our view, this evidence indicates that a supervisor was not necessary at all times." Furthermore, although it appears that Brinegar assumed additional responsibilities when Kees was absent, we note that in the 2 years preceding the hearing herein Kees was absent only once for a 2-week vacation and twice for unspecified lengths of time when she was injured. Also, the functions which Brinegar performed in Kees' absence were routine, such as calling replacement employees or ordering food, or they were approved by higher authorities, such as when Brinegar authorized overtime and pay advances. Furthermore, when the performance evaluations of two employees in the department came due during a period when Kees was absent, Respondent chose to wait for Kees' return rather than have Brinegar prepare the evaluations. Accordingly, on the basis of the foregoing, we conclude that Brinegar was not a supervisor but was, at most, a lead person.1 2 Respondent contends that it had no knowledge of Brinegar's union activities, and thus such activities could not have been the basis for her discharge. We find no merit to this contention. As set forth above, on May 24, Brinegar signed a union card and then solicited five other employees to do likewise. Brinegar worked the next day but then commenced a l-week vacation. On June 4, her first day back at work, Guy called her into Kees' office before 10 previous operator of Respondent's food service. Bnnegar testified that the only change in her terms of employment following the alleged promotion was that she worked the 5:30 a.m. to 2 p.m. shift instead of the 10 a.m. to 7 p.m. shift. There was no change in her duties, she did not receive a wage increase, and she was not told that she had any authority over any kitchen employees. I Spector Freight System, Inc., 216 NLRB 551, 554 (1975). 12 Pinecrest Convalescent Home, Inc., 222 NLRB 13 (1976); Highland Telephone Cooperative, Inc., 192 NLRB 1057 (1971). 255 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a.m. and questioned her, as found above, as to what she knew about the Union. The next morning when Brinegar reported for work, Guy again called her into Kees' office and, in the presence of Personnel Director Adkins, told her that she was being discharged because her work as a "supervisor" was unsatisfactory. When Brinegar asked what was wrong with her work she received no answer, nor did Respondent adduce any evidence at the hearing that she was performing below expectation. We credit Brine- gar's uncontradicted testimony as to her conversations on June 4 and 5 with Guy, and Guy and Adkins, respectively, in view of Respondent's failure to adduce any contradicto- ry evidence and particularly inasmuch as Respondent neither called Guy nor Adkins to testify nor explained its failure to do so. Additionally, Brinegar testified without contradiction that she had never received a warning for poor job performance, that she had received a merit increase every year,13 and that she had been told many times by both Guy and Adkins that she was a good employee. Brinegar also testified, again without contradiction, that aside from being absent because she had the measles in 1967, she has been absent from work only 2 days, and had been late to work only once since she began to work for Respondent. Considering the timing of Brinegar's interrogation and discharge herein, and the smallness of the dietary depart- ment, we can reach no conclusion other than that Respondent had knowledge of Brinegar's union activi- ties,14 and that she was discharged because of this activity in violation of Section 8(a)(l) and (3) of the Act. C. Interrogation of Brinegar Inasmuch as we have already found that Guy was an agent of Respondent, that Brinegar was not a supervisor, and that Guy asked Brinegar on June 4 what she knew about the Union, we conclude that he thereby interrogated her in violation of Section 8(aX)(1) of the Act.15 REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action intended to effectuate the policies of the Act. Affirmatively, we shall order Respondent to offer Margaret E. Brinegar immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of earnings and other benefits suffered because of Respondent's discrimination against her. Her loss of earnings shall be computed as prescribed in F. W. '3 Brinegar also testified without contradiction that all employees received a merit increase annually but of differing amounts (ranging from I to 5 cents per hour) and that her latest increase had been approved for the maximum amount on March 31. 14 Cf. Tayko Industries, Inc.. 214 NLRB 84, 88 (1974). Brinegar testified that there were 17 employees in the dietary department, who worked in the kitchen. In Tayko, in a plant of 30-35 employees, the employer was found to have knowledge of the union activities of 3 employees because of the timing of their discharges. just 3 days after the start of the union campaign, and because of the small size of the plant. 15 In addition to Brinegar's interrogation, General Counsel contends that Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum as required by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Furthermore, as Respondent's violation of Section 8(a)(3) goes to the very heart of the Act, we shall order Respondent to cease and desist from infringing in any other manner upon the rights guaranteed by Section 7 of the Act. 16 CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and 2(7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating an employee concerning her union sympathies and activities, Respondent thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, thus engaging in unfair labor practices within the meaning of Section 8(aX)() of the Act. 4. By discharging Margaret E. Brinegar because of her activities on behalf of the Union, Respondent has discrimi- nated against her in regard to her hire and tenure of employment, thereby discouraging membership in a labor organization in violation of Section 8(aX3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, we hereby issue the following proposed: ORDER Respondent, The Huntington Hospital, Inc., Hunting- ton, West Virginia, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Coercively interrogating employees concerning their union sentiments and activities. (b) Discouraging membership in National Union of Hospital and Health Care Employees, 1199 W. Va., Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, by discharging or otherwise discriminating in regard to the hire and tenure of employment or any other term or condition of employment of any of its employees in order to discourage union membership or activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Supervisor Hubbard interrogated employee Chapman about his union sympathies. Thus, Chapman testified that Supervisor Hubbard asked him what he thought about the Union. Hubbard, however, denied doing so. Under the unfortunate circumstances of this case, we conclude that we cannot make a credibility resolution in view of the conflicting testimony of Chapman and Hubbard and the fact that we did not observe the demeanor of these witnesses at the hearing. We note, however, that were we to find that Chapman was unlawfully interrogated, this finding would not affect the remedy proposed herein. Accordingly, we find it unnecessary to pass upon this issue. i6 See N.LRB. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). 256 THE HUNTINGTON HOSPITAL the National Union of Hospital and Health Care Employ- ees, 1199 W. Va., Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and 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 in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Margaret E. Brinegar full and immediate reinstatement to her former position or, in the event that said position no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of earnings and other benefits suffered by her because of the discrimi- nation against her, in the manner set forth above in the section entitled "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 to analyze the amount of backpay due under the terms of this Order. (c) Post at its Huntington, West Virginia, facility, copies of the attached notice marked "Appendix."'7 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by Respondent 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. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 17 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had an opportunity to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection refrain from any or all these things. WE WILL NOT discourage membership in, or activities on behalf of, any labor organization by discharging employees or otherwise discriminating against them in any manner, with regard to their hire and tenure of employment, or any term and condition of employ- ment, because of their activities on behalf of the National Union of Hospital and Health Care Employ- ees, 1199 W. Va., Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organiza- tion. WE WILL NOT interrogate employees concerning their membership in, activities on behalf of, or support for a union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer Margaret E. Brinegar immediate and full reinstatement to her former job or, if it no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and wE WILL make her whole for any loss of earnings and other benefits suffered because of the discrimina- tion against her, at the rate of 6-percent interest per annum. THE HUNTINGTON HOSPITAL, INC. 257