South Shore Hospital

SOUTH SHORE HOSPITAL South Shore Hospital and Service Employees Interna- tional Union, Local 880, AFL-CIO. Case I-CA- 10893 April 29, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On September 22, 1976, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified herein. We find no merit in Respondent's contention that the Administrative Law Judge erred in permitting the General Counsel to amend the complaint on the first day of the hearing to allege that on or about May 27, 1975, Supervisor Furgeson made a statement to employee Conway which was violative of Section 8(a)(1) of the Act. In its brief, Respondent acknow- ledges receiving the General Counsel's "Notice of Intent to Amend Complaint" 3 working days before the commencement of the hearing, and, at the hearing, Respondent's counsel stated on the record that "[t]he surprise element can ... be compensated during the extent of this trial." Under these circum- i Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. We find no merit in Respondent's exception to the Administrative Law Judge's finding that a statement by Associate Director Topham was violative of Sec. 8(aXl) of the Act. In a conversation with assembled employees in which he discussed the advantages and disadvantages of unionization, Topham stated, in response to a question by an employee, that "no matter what the union got the union employees, the hospital employees would also get." As stated by the Administrative Law Judge. it is clear from the record that the phrase "union employees" referred to the technical employees represented by the Union, which had recently negotiated a collective-bargaining agreement for them, and the phrase "hospital employees" referred to the employees of Respondent who were unrepresent- ed. Under these circumstances, we find that Topham's statement, when considered in the context in which it was made, clearly meant that nonunion employees would receive union contractual benefits without the need for a 229 NLRB No. 52 stances, we are satisfied that Respondent was not prejudiced by the amendments However, we disagree with the Administrative Law Judge's finding that Respondent created an impres- sion of surveillance by Furgeson's statement that she "had just come from a meeting with Mr. Clark [Respondent's director] and talk of central having a union was all over the hospital." In determining whether a respondent created an impression of surveillance, the test applied by the Board is whether employees would reasonably assume from the state- ment in question that their union activities had been placed under surveillance. Schrementi Bros., Inc., 179 NLRB 853 (1969). In the instant case, the statement indicated, at most, that Respondent was aware of a rumor or "talk," which "was all over the hospital," that the employees in the central service and distribution department were interested in unioniza- tion. In this connection, we note that Furgeson's comment was made shortly after Associate Director Topham had addressed the central service and distribution department employees on the advantag- es and disadvantages of unionization, and had been asked by employee Marie Lyons "what percent of people you needed to start a union and also how do you go about starting a union." The central service and distribution department employees had previ- ously agreed to hear Topham discuss this topic in order to learn more about the Union. The Board has held that a respondent does not create an impression of surveillance by merely stating that it is aware of a rumor pertaining to the union activities of its employees so long as there is no evidence indicating that the respondent could only have learned of the rumor through surveillance. G. C. Murphy Company, 217 NLRB 34, 36 (1975). Since a rumor is, by definition, talk or opinion widely disseminated with no discernible source, employees could not reasonably assume from a respondent's knowledge of such a rumor, without more, that their union, and was an implied promise of benefit made for the purpose of discouraging employees from supporting the Union in violation of Sec. 8(aX I). See Casey Manufacturing Company, 167 NLRB 89(1967). 2 See N.L.R.B. v. Transport, Inc., of South Dakota. 453 F.2d 193, 196 (C.A. 8, 1971). 3 The dissent apparently tries to fit the facts of this case within the exception to this rule by claiming that Respondent had "knowledge of very limited union activity" on the part of employee Lyons. It is true, as stated in the dissent. that the Administrative Law Judge found that Furgeson told Conway's mother that Lyons had been investigating the Union for months before her discharge on July 3. But, whether or not Lyons did, in fact. conduct a "private investigation" of the Union is irrelevant to the impression-of-surveillance issue because, at the time Furgeson's statement was made, the central service and distribution department employees had openly expressed their interest in the Union, as evidenced by their meeting with Topham. Therefore, in view of the plain meaning of Furgeson's remark and the circumstances in which it was made, we must disagree with our dissenting colleague's characterization of the statement as indicating to Conway that Furgeson's information was based on "limited and obscure" union activity which "would have had to have been carefully observed to have been noticed." 363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities had been placed under surveillance. Certainly Furgeson's comment revealed Respon- dent's anxiety over its feared unionization of the central service and distribution department, but such a communication to an employee by itself is not an unfair labor practice within the meaning of the Act. Similarly, in an earlier G. C. Murphy Company case, 216 NLRB 785, 792 (1975), the Board held that the respondent did not create an impression of surveil- lance by a supervisor's statement that he had "heard" that two employees were engaging in union activities. In that case, the Board found that it was reasonable to assume that the respondent had learned of the employees' union activities without having to seek such information, and that the statement itself did not suggest that the supervisor had solicited the information or had engaged in spying. In view of the foregoing, we shall dismiss the complaint insofar as it alleges Furgeson's statement to be violative of Section 8(a)(1). ORDER Pursuant to Section 10(c) of the National Labor Relation 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, South Shore Hospital, South Weymouth, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) Promising benefits to employees to discourage them from engaging in union or concerted activities." 2. Delete paragraph l(c) and reletter the remain- ing paragraph accordingly. 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not found herein. MEMBER JENKINS, dissenting in part: The majority misconstrues the facts here by viewing this case as involving no more than a prevalent rumor of union activity, and a statement by Respondent amounting to no more than an acknowledgement of its awareness of the rumor. As the Administrative Law Judge found, this part of the case involves Supervisor Furgeson's telling a unit employee, Conway, that the prospect of unionization of her department was known to Respondent's 4 Contrary to the implication of the majority, the meeting at which Topham addressed the employees on the advantages and disadvantages of unionization was called by Respondent on its own initiative. There is, therefore, no basis for assuming that Furgeson's comment to Conway officials, and had just been discussed at a high level management meeting. The Administrative Law Judge found as a fact that shortly after July 7 Furgeson told an employee that Lyons, one of the two discriminatees herein, had been investigating the Union for months before her discharge on July 3. Although there was testimony that overt union activity did not begin until Lyons contacted the Union in early June, there is nothing in the record which contradicts Furgeson's belief that Lyons had been investigating the Union since at least early May. It is also evident that Lyons and Conway were the two employees who spearheaded the organizational activity. Thus, a reasonable inference can be drawn that on May 22 when Furgeson told Conway that she had just returned from a high level management meeting where there was a discussion of the central service and distribution department's interest in the Union, Conway would have received the impression that Respondent was somehow surveilling the employees' union activities. The limited and obscure nature of this activity before May 22 does not, contrary to the majority, under- mine the Administrative Law Judge's finding that Furgeson's statement was violative of Section 8(a)(l) of the Act, but instead supports it since this activity would have had to have been carefully observed to have been noticed.4 The majority cites two prior Board decisions in support of its position which are hardly relevant to the completely different set of facts before us here. In the G. C. Murphy case 5 first discussed by the majority, the allegation of unlawfully creating the impression of surveillance was premised upon an incident where, in response to a question from an employee to a supervisor as to whether the supervisor had heard a rumor about the employee's union activities, the supervisor acknowledged that he had. The Administrative Law Judge in that case found that there was nothing in this exchange which could reasonably be interpreted by the employee as establishing an effort on the employer's part to learn about her union activities, and thus there was no basis for finding a violation. On the other hand, in this case, Furgeson's statement to Conway specifical- ly links Respondent's purported knowledge of very limited union activity by employees to a high level management meeting where this knowledge was discussed with the supervisors. Such a statement is obviously more than a mere acknowledgement that the fact of union activity or intentions is known. When this knowledge is linked, as Furgeson did, to referred to that meeting or that such a reference was understood by Conway. 5 217 NLRB 34, 36 (1975). 364 SOUTH SHORE HOSPITAL what appears from her statement to be a specially called, high level management meeting where such knowledge is discussed, it becomes clearly a message that management is indeed interested in the employ- ees' union activities and intends to keep an eye on them. The earlier G. C. Murphy case6 concerned a supervisor's actions in warning two employees that they were violating a no-solicitation rule based on what he (the supervisor) had "heard" in one case and what "complaints" he had allegedly received from other employees in another, about the soliciting activities of these employees. There the Administra- tive Law Judge was forced to reconcile a situation where an employer had certain plant rules which he had a right to enforce (assuming the validity of the rule) and which he could only have enforced if the employer had kept informed as to whether or not the employees were engaging in the proscribed conduct. Since Respondent in the instant case was not attempting to police any rule, Furgeson's statement to Conway is unjustifiable under the earlier G. C. Murphy case. Accordingly, I would affirm the Administrative Law Judge's finding that Furgeson's statement to Conway was violative of Section 8(a)(l) of the Act as it reasonably tended to create in Conway the impression that Respondent was surveilling employ- ees' union activities. In all other respects, I am in agreement with the majority. 6 216 NLRB 785, 792 (1975). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge our employees, thereby discriminating in regard to their hire and tenure of employment, in order to discourage their engagement in activities on behalf of Service Employees International Union, Local 880, AFL- CIO, or any other labor organization. WE WILL NOT promise benefits to our employ- ees to discourage them from engaging in union or concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. WE WILL offer Marie Lyons and Ann Conway immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantial- ly equivalent positions, and WE WILL make them whole for their lost earnings, plus interest. SOUTH SHORE HOSPITAL DECISION STATEMENT OF THE CASE MAX ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was heard before me in Boston, Massachusetts, on November 12, 13, 14, and 25, 1975, upon an amended complaint filed by the General Counsel of the National Labor Relations Board and an answer interposed thereto by South Shore Hospital, herein called Respondent.' At issue is whether Respondent violated Section 8(aXl) and (3) of the National Labor Relations Act, as amended, by certain conduct to be detailed hereinafter. Briefs have been received from the General Counsel and Respondent, which have been duly considered. Upon the entire record made in this proceeding, including my observation of the witnesses as they testified on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE EMPLOYER The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Service Employees International Union, Local 880, 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 The complaint alleges that Respondent violated Section 8(aX3) of the Act by discharging employees Marie Lyons and Ann Conway 2 on July 3 and 7, 1975, respectively, because they joined and assisted the Union. The complaint further alleges that Respondent offended the provisions of Section 8(aXl) of the statute when, on or about May 21, 1975, Respondent Assistant Director Topham stated to employees at a meeting conducted at the hospital that nonunion employees would receive whatever benefits union adherents obtained at the installation, and when, on May 27, 1975, EKG Department Head Beryl Furgeson informed Ann Conway that the entire hospital knew that her central service and distribution department was engaged in union activities. Respondent operates a hospital in Weymouth, Massa- chusetts. At the times material herein, the Union represent- ed a unit of technical employees at the hospital. However, I The complaint, which issued on August 26, 1975. is based upon charges filed and served on July 18, 1975. 2 Ann Conway is also known as Andrea Conway. 365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the central service and distribution department, in which alleged discriminatees Lyons and Conway toiled prior to their discharges and which housed approximately 25 employees, was unrepresented. Marie Lyons, who worked as an aide in the department, had been employed by Respondent in various departments on a sporadic basis since 1968, but was employed full time at the hospital from July 1974 until her discharge on July 3, 1975. Ann Conway, who was also classified as an aide in the department, was a full-time employee from June 1974 until her termination on July 7, 1975. I find that, either in late April or early May 1975, Bette Hill, the manager of Respondent's central service and distribution department and Lyon's supervisor, gave copies of the Union's constitution and bylaws to Lyons, as well as to employees Ann Conway and Joseph Murray, for their perusal. Lyons took the document home that evening, but did not read it. The next day, Hill inquired whether Lyons was in possession of the items, and when Lyons replied in the negative, Hill requested that Lyons return the material to the former. After reading the material, Lyons gave it back to Hill. Lyons testified and I find that, on this occasion, Hill "asked me what I thought of it, and I said, I had talked it over with my parents the night before and that I was in agreement with what my parents thought and that was that the hospital wasn't a place for a union. And Ms. Hill said that she was glad to hear that I had that opinion." 3 At a weekly meeting following this conversation, I find that Hill asked the employees under her wing whether they wished to meet Respondent Associate Director Topham in order "To find out about the union, more about the union because she didn't know that much." When a majority of the employees opted to hear Topham discuss this topic, a session was scheduled and held with him on May 21, 1975. In his discourse, Topham reviewed the pros and cons of unionization and answered questions put to him from the floor. It is the uncontradicted testimony of Lyons, Conway, and Murray, and I find that, in response to a query, Topham stated that "no matter what the union got the union employees, the hospital employees would also get." 4 At some point during the convocation, Lyons asked Topham "what percent of people you needed to start a union and also how do you go about starting a union." In reply, Topham remarked that "he hoped it never got to that." On the evening of May 22, 1975, Mary Celestino attended a business dinner which was also attended by Hill. Based upon the credited testimony of Lyons and Celestino, I find that, during the repast, Hill told Celestino that "I [Lyons] was involved with the Union, that I had union cards and I was trying to force people to sign them, and that I was leading a hate campaign against Ms. Hill." It is also uncontroverted and I find that, around this time, Beryl Furgeson, the EKG department head and a statutory supervisor, informed Ann Conway that the former "had just come from a meeting with Mr. Clark [Respondent's 3 Lyons' mother, Mary Celestino, was employed by Respondent in the purchasing division at the hospital. I From letters which Respondent submitted into evidence, it seems clear director] and talk of central [Hill's department] having a union was all over the hospital." On May 23, 1975, the day following the dinner conversation between Hill and Celestino, Lyons tele- phoned Hill to report that Lyons "didn't have any union cards and that I never talked with anybody from the union and that I wasn't trying to force people to sign them." Hill replied that "this wasn't a matter about unions, and I said I just want to straighten this out, because we thought that - my mother and I thought it would be best that we straighten it out with Ms. Hill. And she said that she had lost her trust in me." It is undenied and I find that, in early June 1975, Lyons contacted the Union and was advised to schedule an organizational meeting. In compliance with this suggestion, both Lyons and Conway who were close friends and shared their coffeebreaks, notified the departmental em- ployees either during coffeebreaks or by telephone that a meeting had been arranged at Lyons' apartment for June 19, 1975. Another meeting was held on July 2, 1975, at Conway's home. At each session, approximately six employees were in attendance and most of the employees, including Lyons and Conway, executed union authoriza- tion cards. On July 3, 1975, Respondent discharged Lyons. On July 7, 1975, Conway was severed from Respondent's employment rolls. In defense of this action, Respondent contends that Lyons and Conway were discharged, not because of any known or suspected interest in or support of the Union by these individuals, but solely for just cause. Thus, Respon- dent claims that Lyons lost her job principally because of "the demoralizing atmosphere of the department" created by this employee, and that Conway was terminated for having dallied 30 to 40 minutes in the bacteriology laboratory. In my opinion, the testimony in support of these defenses is too frivolous to warrant serious consider- ation or acceptance. With respect to the discharge of Lyons on July 3, 1975, Hill testified that she had drafted a written warning on the day of Lyons' termination to support the discharge, noting that the separation was triggered by the tension caused by Lyons' conduct. In this connection, Hill mentioned that Lyons mocked employee Cheryl Molisse and called the latter names. Despite the fact that Molisse and Lyons had worked together at the hospital since 1969 and enjoyed a friendly relationship until July 1, 1975, after Lyons was suspected of favoring the Union, Hill asserted that Molisse's harassment by Lyons was a moving force in her discharge. However, when called as a witness, Molisse confessed that she did not report these acts of harassment to Hill. Regarding the termination of Conway, Hill claimed that she relied upon a report by Supervisor Margaret Fontaine that the latter had observed Conway tarrying in the laboratory for almost 40 minutes. Nevertheless, Hill then acknowledged that it was her understanding that Fontaine was not in the laboratory for the full time that Conway allegedly was there, and that she never bothered to query Fontaine about the incident. to me and I find that the phrase "union employees" was an obvious reference to the unit of technical employees which the Union represents. 366 SOUTH SHORE HOSPITAL In sum, I conclude that Respondent selected Lyons and Conway for discharge on July 3 and 7, respectively, not because they were derelict in their deportment or work performance, but because they were either known or suspected union adherents.5 By the discharge of these employees, I conclude that Respondent violated Section 8(a)(3) of the Act. I have also found that, in a conversation with assembled employees on May 21, 1975, Respondent Assistant Direc- tor Topham told the unrepresented central service and distribution department personnel that "no matter what the union got the union employees [technical employees], the hospital employees [unrepresented employees] would also get." In my view, Topham's statement could reason- ably be interpreted as emphasizing to the unrepresented personnel the futility of joining or supporting the Union, particularly in light of the facts that Topham's observation was unsolicited and that the Union had recently won a Board election among the technical employees at the hospital and had obtained a collective-bargaining agree- ment from Respondent. Finally, I have heretofore found that, on or about May 22 or 23, 1975, Supervisor Beryl Furgeson informed Ann Conway that, after a meeting with Respondent Director Clark, the prospect of unionization of Conway's depart- ment was known to Respondent's officials. By this conduct, I find that Respondent created the impression that Respondent had placed its central service and distribution department employees' union activities under surveillance, and I conclude that Respondent thereby violated Section 8(a)(1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY I have found that Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them under Section 7 of the Act, and thereby violated Section 8(a)(1) of the statute. I shall therefore order that Respondent cease and desist there- from. I have also found that Respondent discharged Marie Lyons on July 3, 1975, and Ann Conway on July 7, 1975, because they joined and assisted the Union in its attempt to gain exclusive representation status among the employ- ees in the central service and distribution department at the hospital, and thereby offended the provisions of Section 5 Ann Conway's mother was also an employee of the hospital. She testified without contradiction and I find that, shortly after July 7. 1975. she had a conversation with Supervisor Beryl Furgeson in which the latter told the mother that Lyons had been investigating the Union for months before her discharge. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the 8(aX3) of the Act. To remedy these violations, I shall recommend that Respondent offer immediate and full reinstatement to them in their former jobs or, if they no longer exist, to substantially equivalent employment, and make them whole for any loss of pay which they may have suffered as a result of the discrimination practiced against them. The backpay provided for herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in this case, I hereby make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Marie Lyons and Ann Conway, thereby discriminating in regard to their hire and tenure of employment, in order to discourage their adherence to and activities on behalf of the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the purview of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 6 Respondent South Shore Hospital, Weymouth, Massa- chusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees, thereby discriminating in regard to their hire and tenure of employment, in order to discourage their engagement in union activities. (b) Emphasizing to nonunion employees the economic futility of joining or assisting the Union. (c) Creating the impression of surveillance of employees' union activities. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the National Labor Relations Act, as amended. Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer to Marie Lyons and Ann Conway immediate and full reinstatement to their former jobs or, if they no longer exist, to substantially equivalent employment, and make them whole for any loss of pay they may have suffered as a result of the discrimination practiced against them, 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 records, timecards, person- nel records and reports, and all other records necessary to analyze the amounts of backpay due herein. 7 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant (c) Post at its hospital in Weymouth, Massachusetts, copies of the attached notice marked "Appendix." 7 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 it immediately 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 I, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 368