The Long Island College Hospital

LONG ISLAND COLLEGE HOSPITAL The Long Island College Hospital and Evy Papillon. Case 29-CA-10683 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 September 1984 Administrative Law Judge Eleanor MacDonald issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent's Division- al Assistant Director of Nursing John Edson un- lawfully interrogated and warned employee Evy Papillon concerning her protected concerted activi- ties in an interview on 19 August 1983. The Re- spondent excepts, contending in part that, given the circumstances surrounding the questioning, the questions were not coercive. We find merit in the Respondent's exception. Employee Evy Papillon worked as a registered nurse for the Respondent from 1974 until her dis- charge in 1983. On 2 July 1983 she requested a transfer from a nephrology unit to a geriatric unit, admittedly in part because of the problems she was having with her supervisor, Susan Cohen. Pursuant to the Respondent's transfer request procedure, Pa- pillon was interviewed on 19 August 1983 by John Edson, divisional assistant director of nursing. Also present was Mary Lynn Davis, the new nurse co- ordinator for the geriatric unit. According to the credited evidence, Edson asked Papillon why she wanted to transfer and discussed her prior record with her. He then asked Papillon if she were aware of an article which appeared in an International Committee Against Racism (INCAR)' newsletter distributed at the hospital. The article discussed various incidents involving Papillon and Cohen and indicated that a great deal of tension existed be- tween them. Papillon stated that she had nothing to do with the article. Edson told her that he was not concerned with any involvement she might have with INCAR, but rather with the substance of the article which showed a communication problem. i INCAR is an organization which opposes the collective-bargaining representative of the Respondent's employees, apparently because INCAR believes that the Union does not act in the employees' best inter- est and is not sufficiently militant INCAR's newsletter is designated to inform employees about perceived problems in the workplace and INCAR's response to them 693 He then expressed the hope that if she did transfer to the geriatric unit there would be mote open communication with her coworkers. After the interview Edson decided not to approve the trans- fer based on Papillon's poor record and the nega- tive views expressed to him by Cohen and Davis. The judge correctly found the Respondent's failure to transfer her did not violate the Act. The judge concluded that Edson's question about the article in the INCAR newsletter was coercive. She found that if Edson had not been concerned about Papillon's activities with INCAR, he would not have asked about the article. She further found that Papillon need not have taken Edson's disclaim- er at face value and that she would tend to have been coerced by the question. Accordingly, the judge concluded that the Respondent's questioning was violative of Section 8(a)(1). We disagree. The record reveals that the alleged- ly unlawful question was asked during an interview which had been initiated by Papillon's request for a transfer, and that the article about which she was questioned had been publicly disseminated. In addi- tion, the credited evidence establishes that Edson clearly explained the limited nature of his inquiry and the legitimate reasons therefor In these cir- cumstances, we find the evidence insufficient to prove that the questions reasonably tended to coerce or interfere with Papillon's Section 7 rights. Rossmore House, 269 NLRB 1176 (1984). Accord- ingly, we shall dismiss the complaint in its entire- ty. 2 ORDER The complaint is dismissed. z Member Dennis agrees w,th the majority's conclusion that Edson's questions to Papillon did not violate Sec 8(a)(1) of the Act because of the limited and legitimate nature of the inquiry, the INCAR article's public dissemination, and Edson's disclaimer of interest in her INCAR activities She would not rely on Rossinore House, however, because Edson did not ask about Papillon's protected activities or union senti- ments, but only about the substance of the INCAR article, i e, Papillon's relationship with her supervisor Additionally, Member Dennis finds that Edson's statement expressing hope for more open future communications did not constitute an unlaw- ful threat The record does not support the judge's inference that by this statement Edson suggested that future transfers and employer approba- tion hinged on the absence of INCAR articles DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge This case was tried in Brooklyn, New York, and New York, New York, on January 13, March 5. 6, and 9, and April 16, 1984. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act in that it inter- rogated its employee concerning protected activities. 274 NLRB No 98 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warned and directed its employee not to engage in pro- tected activities, denied a transfer to its employee, and discharged her because she engaged in protected con- certed activities. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties in June 1984, I make the following FINDINGS OF FACT 1. JURISDICTION It is undisputed that Respondent, a New York corpo- ration, is engaged in providing medical and health-relat- ed services in Brooklyn, New York, and that it annually derives gross revenues in excess of $250,000 and receives goods valued in excess of $50,000 directly in interstate commerce . Respondent admits and I find that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. It. ALLEGED UNFAIR LABOR PRACTICES A. Testimony of Evy Papillon Evy Papillon worked as a registered nurse for LICH from 1974 until her discharge in 1983 On December 12, 1982, Papillon began work in the Nephrology Depart- ment, unit 5A. Before that she had worked in a geriatrics unit on 3A, but when that unit changed to a 12-hour shift Papillon asked to be moved to unit 5A which had 8-hour shifts. On July 2, 1983, Papillon addressed a letter to Prager, the director of nursing, requesting a transfer from unit 5A to a geriatric unit on 9A. Papillon cited as reasons her responsibilities as a mother and student that would be difficult to meet once 5A changed to a 12-hour shift. But the bulk of the letter was addressed to the "Constant battle to cope with the animosity" displayed by Susan Cohen the supervisor of 5A. The letter states that Papil- lon has been treated with "blatant disrespect and harrass- ment" by Cohen and gives as an example that Cohen has accused Papillon of "negligence and incompetence" and thereby has threatened Papillon's future. The letter con- cludes by saying that Papillon does not wish "to allow personal conflicts to interrupt" her duties but that she thinks "a more pleasant working atmosphere" would make for a "more productive floor demeanor." Papillon testified that she was interviewed in connec- tion with her request for a transfer by John Edson, divi- sion chief of 9A, on August 21 or 22, 1983, in the nurs- ing office.' Also present was Davis who would be the new nurse coordinator (NCC) for the geriatric floor. Ac- cording to Papillon, after Edson introduced her to Davis, he said, "in a very angered manner" that there was a paper by the name of INCAR, "what's this all about . . . your name is all over . . . Are you a member of INCAR?" Papillon replied that she was not a member of INCAR. Edson asked her if she had written an article for INCAR to print . Papillon denied that she I Actually, the evidence shows that the interview took place on August 19 had. Then Edson said, "Well, in that case I will advise you in the future if I admit you in Unit 9, the geriatric unit, anything happen to you there between yourself, myself, or Miss Davis, I would not appreciate it if I saw it in INCAR." Papillon said she could "not help it" if stories got into INCAR and that it had nothing to do with her. According to Papillon, Edson then asked her why she wanted to move to the new unit so soon after coming to 5A and she replied that 5A was being changed to 12 hours and that due to her family and school commitments she could not work 12-hour shifts. Edson concluded that interview by saying she would hear from him Papillon received a letter from Edson dated August 22, 1983, to the effect that, "Upon review of your past work record, your transfer to A-9 South [Geriatrics] is denied." Papillon testified that a day or two before her inter- view with Edson, a publication called LICH INCAR News, Issue #7, had been distributed around the hospi- tal. INCAR is the International Committee Against Racism . Issue #7 shows that INCAR is an organization opposing District 1199, the collective-bargaining repre- sentative of the nurses of LICH. INCAR apparently be- lieves 1199 does not act in the employees' best interests and is not sufficiently militant Page 3 of issue #7 is enti- tled, "Racist Cohen Strikes Again." The article in sub- stance relates that Papillon has worked in unit 5A under Cohen for 7 months and that she has faced "constant harrassment " The article asserts that Cohen has refused to let Papillon complete certain training or attend her own graduation.2 The article asserts that Cohen has wrongfully told Papillon that the rest of the staff is afraid of her Finally, the article alleges that Papillon was suspended after being "set up" by Cohen and ques- tioned by her concerning a new patient whom Papillon had not yet seen, and the article refers to an erroneous charge that the patient's head was not elevated The article concludes by saying: We demand that this suspension be rescinded, that Evie get full pay . . . and that LICH apologize for the accusation of negligence. We demand that racist Cohen be fired.3 Papillon testified that she spoke to her union represent- ative about the denial of a transfer and that she spoke to Edson. Edson told her the denial was based on a review of her record. Papillon said that she had a lot of experi- ence in geriatrics. She did not know who got the job she had applied for Papillon stated that she had discussed the problem concerning her transfer with her coworkers. At 7:30 a.m. on August 25, 1983, Papillon testified, Su- pervisor Pam Ash called and asked Papillon to come to her office with a union representative Papillon went to see Ash accompanied by Union Representative Joan Rawley. Whitehouse, assistant director of nursing, was also present. Ash told Papillon that she had heard that Papillon had quoted Cohen to the effect that instead of 2 The General Counsel offered no testimony concerning these allega- tions 3 Cohen is white, Papillon is a native of Haiti LONG ISLAND COLLEGE HOSPITAL hiring Filipino nurses, the hospital should give higher salaries to U.S. nurses Papillon denied having told anyone that Cohen had made such a remark. Ash then told Papillon to go back to work while she completed her investigation At 1 p.m that afternoon, Papillon was again called to Ash's office; she took Rawley with her. Ash informed Papillon that her investigation showed that Papillon had indeed made the remarks about Cohen and that Papillon would be fired The notification of discipli- nary action given to Papillon by Ash stated that she was discharged for "insubordination You undermined the au- thority of your supervisor Ms. Cohen by informing sev- eral nurses from the Philippines on dates in 1982 and 1983 that Ms. Cohen harbored animosity to the hiring of Philippine nurses." Papillon testified that she hand "never" told any Filipi- no nurse that Cohen said the hospial should not hire Fili- pino nurses; but she also testified that Cohen had in fact made this statement in December 1982. According to Pa- pillon, Cohen had been working at the hospital about 6 weeks when she said at a staff meeting that "it would be more helpful to the hospital to hire more nurses here by raising their salary because those girls cost the hospital a lot of money to come here and . . . when they finish they don't stay." Papillon stated that all the nurses who heard Cohen say this were "shocked"; they discussed it among themselves and some questioned Cohen about it. Cohen explained that the fare from the Philippines is ex- pensive. Papillon said there were no'Filipino nurses in her area on her own shift, but that she overlapped with some Filipino nurses while the shift was changing and patient care was being discussed Papillon denied telling anyone that Cohere was a racist and did not like Filipi- nos. On cross-examination, Papillon repeated her assertion that Edson asked her if she was a member of INCAR and asked why her name was in the INCAR pamphlet, asked if she had written the article, and warned her about future use of her name by INCAR There is no mention that Edson asked Papillon if she belonged to INCAR in either of two statements given by Papillon before the trial. Papillon was sure Edson did not discuss her past record; he merely told her that he would look over her record and get back to her. The two discussed only INCAR and the fact that Papillon had geriatric ex- perience and could not work a 12-hour shift. This inter- view lasted 10-15 minutes. Papillon admitted on cross- examination that she wanted the transfer because she was not getting along with Cohen; she felt Cohen was not fair to her, and she and Cohen shouted at each other. After extensive cross-examination, Papillon was still in- sisting that she did not discuss her problem with Cohen during her interview with Edson because "he didn't give me the chance." Then, Papillon changed her testimony to say that Edson did ask her, "[W]hat's happening be- tween you and Susan Cohen?" Papillon did not tell Edson about the situation, she merely said that she did not feel comfortable on the ward. Papillon was unwilling to answer a question on cross- examination concerning her work record. She professed not to recall that she had had 15 conferences on per- formance problems, 7 warnings, and 4 suspensions. When 695 confronted by documentary evidence of her record, Pa- pillon stated that most of the discipline was meted out by Susan Cohen "almost every week " Papillon claimed Cohen gave her at least 20 disciplinary contacts Papillon constantly fenced with counsel for Respondent and was very reluctant to recall anything on cross-examination. Papillon's personnel file reveals many notations of defi- ciencies made by Cohen. It also contains numerous warnings and disciplinary memoranda by a wide variety of supervisors relating to behavioral difficulties and nurs- ing errors dating back to 1975. In July 1982, Papillon came to work during a strike and she received a form letter thanking her for her "commitment and assistance." She also received a letter in September 1979, thanking her for serving as an ob- server for the hospital in an election conducted in the nurses unit . The General Counsel urges that these are letters of personal commendation; actually they are form letters thanking Papillon for a particular service and have no bearing on her past disciplinary record On cross-examination, Papillon stated that Edson had a copy of INCAR News issue #7 when he interviewed her. Papillon stated that she never gave INCAR any in- formation about her situation but that everyone at the hospital knew the details of her job circumstances be- cause she always had an 1199 delegate with her when she was disciplined. However, she admitted that it was unlikely that an 1199 union representative would share any information with a rival such as INCAR. Papillon insisted that she had never had any discussions with INCAR. When asked how INCAR had gotten informa- tion about the first day's proceedings in the instant trial, Papillon stated that she had kept up with former co- workers at the hospital. In response to further questions on cross-examination, Papillon testified that on August 25, 1983, Ash told Pa- pillon that she had heard that Papillon said Cohen had expressed the opinion that the hospital was wasting money on Filipino nurses and instead of paying them it should increase the salaries of U.S. nurses Papillon denied saying this to the Filipino nurses . Papillon did not tell Ash whether she had made this statement to non-Fil- ipino nurses because Ash did not ask about that. Papillon did not tell any nurses about Cohen's statement, she merely discussed this with nurses who had themselves heard Cohen make the statment; these included Margaret Fleming, Sophie Barnas, Janet Walker, and Miss Venett. Papillon testified that she did not tell Ash that she had in fact heard Cohen make the anti-Filipino statement be- cause Ash's question came "as a shock" to her. Papillon had no time to think. Papillon believed many people had heard Cohen make this statement and she wondered why she was "selected." She believed Ash knew Cohen had made the statement in public. After Papillon's discharge, she attended a grievance meeting called by District 1199 in her behalf Respond- ent was represented by Vice President for Human Re- sources Sid Seligman . Seligman asked Papillon if she had quoted Cohen as making anti-Phillippine statements. Pa- pillon denied saying anything about Cohen, but she did not at that time inform Seligman that Cohen had indeed 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made the derogatory remarks about the hospital's Filipi- no employees because it was not her "place" to do it Papillon maintained that she only discussed Cohen's remarks with her coworkers right after the staff meeting in December 1982. After persistent questioning by coun- sel for Respondent, she reluctantly recalled that some co- workers had asked her about Cohen's alleged statement in 1983. One afternoon two Filipino nurses asked her if she had ever heard about Cohen's remarks and she said, "Don't ask me anything like this because this has nothing to do with me . . I have enough problems with Miss Cohen, don't add anymore. That's all I need to be fired " The two nurses were Angie Umale and Rosemary Dumale. She remembered "exactly" and "clearly" that the two nurses came to her 2 days before she was fired as the shift was changing 4 They said, "Evy is this true?" Papillon had never told anyone about this incident before because she was never asked about it. She was sure this occurred 2 days before she was fired Another nurse was there by the name of Doris Bordon; she asked the two nurses why they were questioning Papillon and then she said, "[Y]ou could say you overheard but don't [say that] Evy tells you." Papillon had never told anyone about Bordon's remark before the trial. I do not find that Papillon was a credible witness. She tended to embroider and exaggerate her testimony, often reciting facts at the trial which she had not put into her prior sworn statements. She was extremely uncoopera- tive on cross-examination, often refusing to concede mat- ters which were set forth in writing before her Her basic story does not make sense in a number of ways. For instance, it was my observation of Papillon that she very often elaborated on her answer under oath and often answered questions that were not posed by coun- sel. Indeed, she insisted on giving a justification for many of her answers even when asked for a simple "yes or no" response. Viewed against this background, her testimony that she never told Respondent's management that Cohen had in fact made derogatory statements about Fil- ipino recruiting because she was never asked the specific question is impossible to believe. It strains credulity to take seriously the proposition that Papillon would go through a discharge and a grievance procedure without once telling management that the statement that she was being fired for repeating had in fact been made by Cohen. Moreover, as will be seen below, Papillon's assertions are not borne out by any reliable witnesses No nurse was produced who heard the derogatory statement by Cohen Indeed, several nurses who heard Cohen's hostile statement about Filipinos according to Papillon testified and denied that they had heard Cohen disparage Filipino recruiting. Further, despite Papillon's denials that she ever repeated Cohen's statement to a Filipino nurse, two such nurses testified credibly that Papillon had talked to them about the subject. 4 In fact, the hospital's records establish to my satisfaction that Papil- Ion reported sick on August 23, 1983, and did come to work B Testimony of Lois Maynard Lois Maynard, who was called as a rebuttal witness by the General Counsel, worked as a nursing assistant at LICH from January 1980 to November 1983. She was discharged by the hospital and an arbitration proceeding is pending in the matter. In December 1982, Maynard and Margaret Fleming were talking and Fleming told her that Cohen said at a staff meeting that she did not "know why the hospital was hiring so many Filipino nurses . . [the hospital] should use their money on . . the American people . . . instead of bringing on the Filipino nurses, because they were too slow and they didn 't fit in " On cross examination , Maynard testified that no one else was present during her conversation with Fleming, but that she discussed it with other nurses aides such as Theresa Green , Doris Bordon, Joanne Ferraidoli, Ms. Paul, and Gloria . Paul and Gloria had been at the meet- ing with Cohen She never asked Cohen about the re- marks. Although the subject was discussed for some time afterwards, Maynard never mentioned it to management or to the Filipinos . Maynard gave her affidavit to a Board agent on April 11, 1984, 4 days before she testified in the instant trial . She had not come forward earlier. When asked whether she had discussed Cohen's remarks with Evy Papillon , Maynard replied , "yes, I think so." When asked why she had not mentioned Papillon in any of her prior testimony, Maynard replied that she thought the question related only to those who told her what Cohen had said . A reading of the testimony shows that this answer is nonsense . I am convinced that Maynard was not truthful and was covering up her inability to give consistent testimony . Once she was reminded that she had forgotten Papillon , Maynard proceeded to testify that she had discussed Cohen's remarks with Papillon and also with Sophie Barnas Maynard was cross-examined about how she came to be called as a rebuttal witness. She was unwilling to give any details until pressed repeatedly I conclude that Maynard was not a credible witness and I shall not rely on her testimony Further, her testi- mony about Fleming and Barnas was contradicted by Fleming and was not corroborated by Barnas , as will be seen below. C Testimony of Carmelita Pallagao Carmelita Pallagao testified that she had worked for Respondent as a registered nurse for 1 year and was soon resigning her position to return to her home in the Phil- ippines. When she began work in January 1983, her head nurse was Susan Cohen. Pallagao stated that in February 1983, while she and Evy Papillon were at a patient's bedside, Papillon told her that Cohen did not like Filipinos. Up to that time, Pallagao testified, she had felt that Cohen treated Filipinos and non-Filipinos equally and distribut- ed praise and rebukes on a nondiscriminatory basis. After Papillon imparted her information to Pallagao, the latter observed Cohen very closely but she did not observe any inequality of treatment. In the summer of 1983, after Papillon came back from a suspension, Papillon and Pal- LONG ISLAND COLLEGE HOSPITAL lagao were doing walking rounds one morning, and Pa- pillon said that at a staff meeting Cohen had questioned the hospital's policy of hiring Filipino nurses when in- stead it could raise the salaries of U.S. nurses. Pallagao decided to ask Cohen directly about what she heard from Papillon About I month later, she confront- ed Cohen after a staff meeting in the conference room. Pallagao asked Cohen if Cohen had indeed made the statement attributed to her by Papillon, and Cohen said, "Oh Carmelita, do you really believe I said that?" Cohen appeared surprised Pallagao told Cohen she had heard about the alleged remark from Papillon. Two other Fili- pino nurses were present at this time, Carmelita Ciervo and Corazon Dumali On cross-examination, Pallagao recalled that Papillon said she would talk to Prager, the director of nursing, about Cohen's comment and also tell her Filipino friends of these comments Pallagao has passed the New York State licensing ex- amination She stated her belief that if she wanted to return to New York State to work as a registered nurse in a hospital other than LICH it would not be difficult to get a job offer from another hospital It is clear to me from her testimony that Pallagao knew that Respondent wished to continue her employment long before she testi- fied in the instant trial. Pallagao chose to resign because she wished an extended vacation at home, but she had an offer to return to the hospital thereafter I do not find that her employment status prejudiced her testimony in any way. She testified in a clear, cooperative, and forth- right manner and I credit her testimony entirely. D. Testimony of Rosemarie Umak Rosemarie Umali is a registered nurse at LICH who is a native of the Philippines. In June 1983, Umali was talk- ing to Papillon about Cohen and Papillon told Umali that Cohen had said the hospital was wasting money hiring Filipino nurses because there were many good nurses in the U.S. Umali had never noticed that Cohen treated her unfairly. Umali testified that Melanie Corpuz of Respondent's personnel department later asked her if she had heard Papillon make remarks against Filipino nurses and when Umali told her that she had, she was called to Vice President Seligman's office. Seligman asked Umali to tell him what had happened and then asked her to provide a written statement. Umali told Papillon that Papillon's statement had come to Corpuz' attention and Papillon asked her not to men- tion her name or get her involved. I find that Umali was a credible witness and I shall rely on her testimony. E. Testimony of Sid Seligman Seligman testified that he has observed INCAR picket- ing the hospital and handing out its newsletter.5 As a matter of routine, Seligman was informed in August 1983 that Papillon's transfer was not approved, but he was not aware of Edson's interview with Papillon at that time. 5 Seligman is also a law student 697 He first learned the contents of the interview after the instant charge was filed following Papillon's discharge. When he was informed by the Board agent investigating the instant case that Edson had questioned Papillon about INCAR, Seligman spoke to Edson about the inter- view; prior to that time Seligman had not been aware that Edson had asked Papillon about INCAR. When Seligman discharged Papillon, he was unaware of any activity by her on behalf of INCAR, but he knew that her name had appeared in an INCAR publication as have the names of many employees 6 Seligman described the events leading to Papillon's discharge; received a call from Susan Cohen who report- ed that some Filipino nurses had asked her whether she was biased against Filipinos. These nurses told Cohen that Papillon had told them that Cohen had questioned the recruitment of Filipino nurses by the hospital. Selig- man asked Cohen to verify the conversation and he asked Melanie Corpuz, a Filipino who works in the per- sonnel department, to set up a meeting for him with the Filipino nurses. Seligman testified that he regarded Papil- lon's allegation as "very serious" because it involved ethnic discrimination. After Cohen denied having said anything that could be construed as exhibiting a bias, Seligman met with nurses Hatulan, Pallagao, Ciervo, and Umali. These nurses told him that they had not seen any in Cohen's treatment of them and they informed him that Papillon had told them that Cohen had made statements questioning the recruitment of Filipino nurses. Seligman told the four nurses that the allegations were serious and he asked them to prepare written statements with a view to a possible arbitration proceeding. Seligman did not prepare the statements, the nurses wrote them out by themselves in longhand. Hatulan and Ciervo no longer work for Respondent and they could not be located for the trial However, they were interviewed by a Board agent during the investigation of the instant case Seligman testified that the hospital has nondiscrimina- tory policy toward all of its employees and that he viewed an allegation of ethnic prejudice seriously.' Moreover, the hospital had recruited Filipino nurses and asked them to travel "halfway around the globe to the hospital," and he wanted them to feel as comfortable as possible in the workplace." He asked Ash to speak to Pa- 6 A number of INCAR newsletters distributed at LICH were intro- duced into evidence They are strident and not at all subtle in tone and choice of words The articles criticize District 1199 leaders, political fig- ures, and hospital "bosses" mercilessly It is not uncommon for an em- ployee of LICH who has allegedly been victimized by District 1199 or by LICH to be mentioned by name and for demands to be made on the employee's behalf A reading of the newsletters in evidence shows that the article about Papillon's troubles with Cohen is not any more remarka- ble than the other articles in the INCAR publications, It was not proven that any other LICH employees have suffered retaliation for having been mentioned in an INCAR publication 7 Seligman stated that the hospital is "a multi-ethnic institution in a multi-ethnic community, and the problems, whenever prejudice raises its head are monumental, and they have to be dealt with forthrightly and quickly " 9 Seligman testified that recruiting in the Philippines is cheaper than most American recruiting The nurses reimburse the hospital for their plane fare 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pillon, and Ash reported that Papillon denied making the remarks attributed to her by the four nurses. Seligman decided that the four nurses were highly credible and he determined that Papillon' s allegations were a kind of ma- licious slander against Cohen. Seligman decided that Pa- pillon's denials were not credible 9 He determined to dis- charge Papillon based on her malicious slander and based on her previous disciplinary record. The four statements which relied on by Seligman in discharging Papillon state, in pertinent part are- (1) Umali's statement that "[Cohen] said accord- ing to Miss Papillon `the hospital is wasting money for recruiting Filipino nurses, and why does the hospital get nurses from Philippines while in fact there are good nurses here."' (2) Hatulan's statement that Papillon told Hatulan that "Cohen told her and the people in a party last December that why is it that the hospital is spend- ing that much recruiting Filipino nurses." (3) Ciervo's statement - "Some where in Decem- ber Mrs E. Paprllon talked to me . . . about what Ms S Cohen had told them, the morning staff when they had a Christmas party . . . Susan Cohen said `why does LICH hire some Fil. nurses . .' Ms. Papillon added that Ms. Cohen doesn't like Fillipino nurses." (4) Pallagao's statement that "[Papillon] told me that Susan Cohen asked some of the nursing staff 'why is the Long Island College Hospital re- cruiting nurses from the Philippines when they can raise the salaries of nurses here."' Seligman answered questions carefully and exactly. I find that he was a credible witness and I shall rely on his testimony. F. Testimony of John Edson John Edson was divisional assistant director of nursing at LICH in 1983. In mid-August of that year he was in- formed through the usual channels that Papillon had re- quested a transfer and in accordance with procedure he made an appointment to see her. He reviewed Papillon's file and spoke to Cohen, her immediate supervisor. In Papillon's disciplinary file, he found that she "had a long history of disciplinary actions concerning performance and concerning communication problems with previous supervisors "10 When he met with Cohen he asked her about some of the things that appeared in Papillon's file and Cohen said she was having considerable problems with Papillon. Cohen told Edson that it would be wrong to permit Papillon to transfer because it would be in the nature of a reward Edson interviewed Papillon on August 19, 1983, about 11 a.m in the presence of Mary Lynn Davis, the nursing care coordinator who would have been Papillon' s imme- diate supervisor if the transfer had been granted. The interview lasted 15 to 20 minutes. Edson began by intro- ducing Papillon to Davis He then asked why Papillon wanted to transfer into a geriatric unit in view of the fact that she had previously left another geriatric unit. Papi- Ion replied that she had left to learn a new skill, perito- neal dialysis, and that she wanted to return to geriatrics. She added that in her entire nursing career she had never had the kind of problems she was having now with Cohen. Edson replied t:.at she was presenting herself as a model employee wher ;s her record indicated other- wise At that point, . •l^i 'on said that she now realized that Edson only wanteu to learn about her relationship with Cohen. Edson said that he was really interested in the discrepancy between the way Paprllon presented her- self and her actual record, and that he was concerned that she had communications problems on her unit He asked her if she was aware of the articles appearing in INCAR. Papillon said she had nothing to do with the ar- ticles. Edson said he did not care about her involvement with INCAR, only about the substance of the articles which showed a communications problem. He told Pa- pillon that if she transferred to a new unit he "would hope for a much more open communication between her and her co-workers." Papillon said she had taken courss in interviewing and that if Edson "knew anything about interviewing, [he] wouldn't be concerned with her past record." The interview ended soon after this exchange. Edson testified that he did not ask Papillon if she be- longed to INCAR nor how INCAR got information about her. He "was concerned about the substance of the articles that indicated that she was having communica- tions problems with her co-workers." After the interview, Edson discussed Papillon's trans- fer request with Cohen, Ash, and Prager, and he decided that he would not approve the transfer based on Papil- lon's past performance and especially her problem in communicating with other employees. Edson informed Seligman of his decision because Sel- igman is vice president for human resources. He did not discuss the matter in detail with Seligman until after Pa- pillon was discharged and about 2 months before the in- stant trial. At the time, Seligman and Edson discussed Edson's interview of Papillon When Seligman asked Edson if he had asked Papillon about INCAR, Edson said yes Seligman then said, "[D]on't you know that you're not supposed to ask about an outside organiza- tion?" Edson replied that he was only inquiring about the substance of the articles. The two then discussed the entire interview between Papillon and Edson. Edson had not been involved in the decision to dis- charge Papillon and he learned of it only after it took place. Edson testified in a forthright manner and had a good recollection He candidly admitted questioning Papillon about the INCAR article and did not evade the issue. I find that he was a credible witness and I shall rely on his testimony. 9 Until he heard Papillon's testimony at the trial , Seligman had never heard that Papillon contended that Cohen had indeed made derogatory remarks about recruitment in the Philippines 10 By "communication problems" Edson meant that Papillon could not get along with people G. Testimony of Mary Lynn Davis Mary Lynn Davis is nursing care coordinator of unit 9 south She was present at Edson's interview with Papil- LONG ISLAND COLLEGE HOSPITAL 699 Ion, and in preparation for the interview she reviewed Papillon's personnel file. The file showed problems in the past in relations with supervisors and problems concern- ing nursing care judgments. At the interview, Edson asked Papillon why she wanted a transfer. Papillon re- plied that she wanted to change to geriatrics and needed a change of location. Papillon said there were problems with Cohen. Edson said that, although he did not want to discuss the specifics of her problems, he was con- cerned that there were problems with Papillon's superi- ors and coworkers and that if she were to transfer she would have to work on these problems. Edson asked Pa- pillon if she was aware that there were articles in INCAR about her problems. When Papillon replied that she was not responsible for the articles, Edson said that he was not concerned how they got there but that he was concerned that she had problems communicating with superiors and staff members. When Papillon said she had a good record, Edson replied that in looking through her file that was not the case and that there had been previous problems. After the interview concluded, Davis told Edson that in view of Papillon's problems with communications and nursing judgment she was not interested in accepting Pa- pillon as an employee. On cross-examination, Davis testified that Papillon had not stated in the interview that she had a problem coping with a 12-hour shift I find that Davis was a truthful witness and I shall rely on her testimony. H. Testimony of Susan Cohen Susan Cohen is no longer employed by Respondent, having left because she wanted new opportunities. Cohen was the nursing care coordinator who supervised Papil- lon in 1983 Cohen testified that she had multiple prob- lems with Papillon. The latter behaved unprofessionally being loud and disruptive and screaming at Cohen and at physicians, nurses, and union representatives. In July 1983, Cohen recommended a suspension for practice and medication errors This was later reduced to a warning notice by Seligman Some time in summer 1983, Edson told Cohen that Papillon had requested a transfer and that he was concerned because Papillon was known as a very difficult person. Cohen told him that in her view Papillon was doing badly in conduct and per- formance and that transfers under the union contract were reserved for satisfactory employees. In August 1983, Cohen came to the hospital to meet with the night-shift employees. Three Filipino employees were present: Ciervo, Pallagao, and Dumale. At the end of the meeting Pallagao asked Cohen if it were true that Cohen did not like her and wanted her to go back to the Philippines. Cohen told the nurses that this was not true and that they should judge her by her actions. The nurses told Cohen that Papillon had told them Cohen did not like them. The next morning, Cohen informed Ash and the next week she told Seligman about this conversa- tion. Cohen testified that she could not recall making any statement similar to the one reported by the Filipino nurses She recalled only that in December 1982, at Prager's suggestion, she asked for donations of warm clothing for the newly arriving Filipino nurses. Cohen was not involved in the decision to discharge Papillon, Seligman and Ash notified her when the deci- sion had been made. Papillon had never accused Cohen to her face of being prejudiced, she only accused her of being stupid and a poor manager. Cohen stated that she was often more lenient with Pa- pillon than with other nurses because Papillon was inco- herent and pathetic. Although Cohen was angry with Papillon she also felt sorry for her. I find that Cohen was a reliable witness and I was par- ticularly impressed with her demeanor while testifying I shall rely on Cohen's testimony. I Testimony of Pamella Ash Pamella Ash is associate director of nursing for ambu- latory care at LICH On August 25, 1983, she received a call from Seligman and Cohen informing her that they had statements from Filipino nurses that Papillon had quoted Cohen as making derogatory comments about Filipinos. Seligman asked Ash to meet with Papillon and investigate whether Papillon had indeed said the things alleged by the Filipino nurses. Ash interviewed Papillon in the presence of Whitehouse and Rawley. Ash asked Papillon if she had ever said anything about the recruit- ment of Filipino nurses or if she had said that Cohen said recuriting Filipino nurses was a waste of money when the hospital could be raising the salaries of nurses here. Papillon answered that she never spoke to the Filipino nurses and that she had never made such statements, "never, never, never." Papillon did not tell Ash that Cohen had in fact made these statements. Ash informed Seligman of the susbtance of the inter- view with Papillon Seligman recommended that discipli- nary action be taken against Papillon, and she was termi- nated for insubordination, that is, undermining the au- thority of her supervisor by making inaccurate state- ments to the Filipino nurses After Papillon's discharge, Ash attended grievance sessions with Papillon and Dis- trict 1199 representatives During the grievance proce- dures, Papillon again denied having any conversations regarding statments made by Cohen about Filipino nurses Further, Papillon never said that she had in fact heard Cohen make statements about recruiting in the Philippines I find that Ash was a credible witness and I shall rely on her testimony. J. Testimony of Margaret Fleming Volkheimer Margaret Fleming Volkheimer, a nurse employed by LICH, testified that she never heard Cohen make any re- marks about Filipino nurses She could not recall any conversation with Papillon about Cohen's alleged state- ments Fleming Volkheimer was sure that she would have remembered if she had heard a supervisor at a staff meeting make a comment that was critical of the hospi- tal's Filipino recruitment program and if she had dis- cussed that comment later with other employees . I found this witness to be cooperative and forthright on both 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD direct and cross-examination, and I shall credit her testi- mony. K. Testimony of Sophie Banas Kwasnicki Sophie Banas Kwasnicki, a nurse at LICH, testified that she could not recall hearing Cohen make any com- ments about Filipino nurses nor could she recall hearing that Cohen had made such comments . She did not re- member discussing Cohen's alleged statements with Pa- pillon 1. Positions of the parties The General Counsel argues that activities related to and in support of INCAR are protected concerted activi- ties under the Act. Edson testified that he was concerned about the substance of the INCAR article relating to Pa- pillon's problems with Cohen and that he spoke to Papil- lon about it. Edson's testimony amounts to an admission of unlawful interrogation, a warning not to engage in future concerted activities and a refusal to transfer due to protected activities, according to the General Counsel. Finally, the General Counsel argues that Respondent dis- charged Papillon because she engaged in the protected, concerted activity of complaining about her supervisor to her coworkers.) i Respondent's defense that Papillon's complaints were a malicious falsehood were a pretext, because Cohen did in fact make the statements attributed to her. Respondent argues that Edson's questions and state- ments to Papillon were not unlawful in that they did not tend to restrain, coerce, or interfere with her rights, citing Rossmore House, 269 NLRB 1176 (1984). Further, Respondent denied Papillon's transfer request for the lawful reason that she had a poor work record and a his- tory of not getting along with her supervisors. Concern- ing Papillon's discharge, Respondent asserts that this was due to her malicious slander of her supervisor Susan Cohen and was not related to the article in INCAR. Fi- nally, Respondent takes the position that INCAR's ac- tivities at LICH are not protected by the Act. 2. Discussion and conclusions As discussed above, I do not find that Papillon and Maynard were credible witnesses and I shall not rely on their testimony Moreover, for the reasons discussed above, I shall rely on the testimony of Respondent's wit- nesses. As is clear from my discussion of the testimony of the various witnesses, I find that Cohen did not make the statements attributed to her by Papillon and Maynard. I also find that Papillon did in fact tell the Filipino nurses that Cohen had questioned their recruitment, said she did not like them and expressed the opinion that the money spent to recruit them would be better spent increasing the salaries of nurses already in the U.S I shall deal first with Papillon's discharge: It is beyond cavil that Papillon had a poor personnel record replete with warnings and memoranda of counseling relating to deficiencies in nursing practice and failures to get along with a long list of supervisors. Based on the credited tes- timony, I find that Seligman was told that Papillon had raised in the minds of several Filipino nurses, a question that their immediate supervisor did not welcome their presence at the hospital and regarded their salaries as ill spent. The nurses had been sufficiently upset by this alle- gation so that one of them had watched her supervisor's conduct for 6 months and then asked the supervisor if it were true. Seligman investigated the problem and con- cluded that Papillon had spoken to the Filipino nurses and that her statements had been false and malicious He reasoned that by spreading false reports about her super- visor, Papillon had spread ethnic dissension and under- mined the authority of the supervisor. In view of her dis- ciplinary record, he decided to discharge Papillon. There is no evidence that Papillon's discharge was in any way related to any protected concerted activity. First, the record contains no proof that Papillon engaged in such activity and she denied any contact with INCAR. Second, there is no proof that Seligman was aware of any protected concerted activity engaged in by Papillon nor is there any proof that Seligman believed that Papil- lon had engaged in any such activity. Seligman knew that Papillon's name had been mentioned in an INCAR newsletter; but this was not uncommon at LICH and there is no proof that the newsletter article was linked to his decision to discharge Papillon With respect to Edson's transfer interview with Papil- Ion, since I do not credit Papillon's testimony, I shall rely on the version of the interview given by Edson and Davis. Thus, I find that Edson asked Papillon why she wanted to transfer and discussed her prior record with her. He then asked Papillon if she was aware of the INCAR newsletter article, told Papillon that he was not concerned with any activities she might engage in with INCAR, and then expressed the hope that if Papillon transferred there would be "more open communication" with her coworkers. After the interview, Edson decided not to approve the transfer based on Papillon's prior record and based on the negative views of Davis and Cohen Edson testified that he considered Papillon's past performance and espe- cially her problem in communicating with other employ- ees. I find that by asking Papillon if she was aware of the INCAR article and expressing the hope that in the future there would be more open communications, Edson en- gaged in unlawful interrogation and warning.12 First, Edson was asking Papillon about an article concerning her problems on the job; the article appeared in a publi- cation dedicated to furthering discussion and action by 12 Following the standards of Bourne v NLRB, 332 F 2d 47 (2d Cir 11 The General Counsel urges that Cohen's statements as reported by 1964), I note that Edson had a high enough rank so that he had the final Papillon do not evidence hostility to Filipino nurses but only relate to the decision whether to grant the requested transfer, that he questioned Pa- economics of the nurses' salaries However, this contention is undermined pillon in his office during a formal interview, and that his question rea- by Papillon's assertion that the nurses who heard Cohen's alleged state- sonably would tend to give the impression that he would base his deco- ment were "shocked " sion on the answer given by Papillon LONG ISLAND COLLEGE HOSPITAL employees to ameliorate their work-related problems. Pa- pillon's actions , if any, in making herself the subject of such an article must be viewed as having the protection of the Act. If Edson really was not concerned with Pa- pillon's activities with INCAR, he would not have asked about the article. Papillon need not take Edson's dis- claimer at face value, and I find that she would tend to have been coerced by the question. Further, Edson was expressing the wish not only that Papillon would get along with her coworkers and supervisors but also that he would not read about her problems in the INCAR newsletter. In effect, Edson was telling Papillon to solve her problems in the hospital and avoid having them writ- ten about by INCAR. This sent had the tendency to interfere with Papillon's piotected concerted activity and the tendency to coerce her as well. Any reasonable employee would take away from this interview the belief that future transfers and the future approbation of the Employer would depend, in part, on the absence of arti- cles in the INCAR newsletter. Thus, I conclude that Edson coercively interrogated and warned Papillon con- cerning protected , concerted activities in violation of Section 8(a)(1) of the Act Respondent citing Emporium Capwell Co. v. Waco, 420 U.S. 977 (1975), argues that INCAR' s activities are un- protected because INCAR seeks to bypass the majority representative of the unit employees. In Emporium a group of employees were discharged after picketing in support of their demand that their employer negotiate di- rectly with them concerning a matter which the union was taking through the grievance procedure under the collective-bargaining agreement . The Court agreed with the Board's conclusion that the employees' activities in support of minority bargaining were not protected. In the instant case, the INCAR publications submitted into evidence make it clear that INCAR seeks to promote the election of its supporters to positions in District 1199 and that it generally publicizes matters relating to politics and labor relations as well as subjects of particular con- cern to employees of LICH Although one INCAR newsletter did state a "demand" that Papillon's suspen- sion be rescinded , this was in the nature of rhetoric and it contained absolutely no suggestion that Respondent bargain with INCAR over Papillon's status There is thus no basis in this case for finding INCAR' s activities unprotected . See NYU Medical Center, 261 NLRB 822 701 (1982), remanded 702 F.2d 284 (2d Cir.), vacated 104 S.Ct. 53 (1983) 13 Finally, I must consider whether Edson 's decision to deny Papillon a transfer was based on a belief that she was involved in INCAR or was due to the mention of her problems in the INCAR newsletter The question posed by Edson in the transfer interview undoubtedly show the factors he considered important in deciding whether to grant Papillon's transfer request In his testi- mony, Edson stated that in denying the transfer he con- sidered Papillon 's difficulty in "communicating " or get- ting along with coworkers As demonstrated by the questions he asked in the interview , one of the factors considered by Edson was the article in the INCAR newsletter which tended to show that Papillon could not get along with her supervisor , the existence of the article was of some concern to Edson. Therefore, I find that protected conduct was a motivating factor in Edson's de- cision to deny Papillon the transfer . However, based on the testimony of Edson, Cohen , and Davis, I find that Respondent has shown that even if Papillon had not been linked with INCAR, her transfer would have been denied . It is clear that Papillon's record was bad, that Davis did not want Papillon, and that the hospital would not have rewarded an unsatisfactory employee with a transfer. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Thus, I conclude that there was no violation of the Act in the denial of a transfer to Papillon. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section (2), (6), and (7) of the Act. 2. By coercively interrogating and warning its employ- ee about engaging in protected concerted activities, Re- spondent violated Section 8(a)(1) of the Act. 3. The General Counsel has failed to prove any other violations of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. [Recommended Order omitted from publication ] 13 Although Respondent's brief urges that INCAR has picketed in sup- port of certain demands, there was no testimony in the record before me concerning this matter