Taylor Hospital

TAYLOR HOSPITAL 697 Taylor Hospital and Local 1319, Laborers' Interna tional Union of America, AFL-CIO-CLC Case 4-CA-12264 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 2 February 1984 Administrative Law Judge James J 0 Meara Jr issued the attached decision The Respondent filed exceptions and a supporting brief, the Charging Party filed a brief in opposition to the Respondent s exceptions, and the General Counsel filed cross exceptions and a brief in sup port of cross exceptions and in opposition to the Respondent s exceptions The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings 1 and conclusions 2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Taylor Hos pital Ridley Park, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order - ' The Respondent has excepted to some of the Judge s credibility find ings The Board s established policy is not to overrule an administrative law Judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings 2 In adopting the finding of an 8(a)(3) violation in Brown s discharge Member Hunter does not rely on the Judge s conclusion that the dis charge was inherently destructive of important employee rights Member Hunter emphasizes that the Respondent s conduct in disciplining Brown because she engaged in union activities is itself evidence of union animus Member Zimmerman agrees with Member Hunter that the Respond ent s conduct toward Brown is evidence of union animus However he also agrees with the Judge s finding that Brown s discharge was inher ently destructive of important employee rights Member Zimmerman and Member Hunter also disavow the Judge s ob servant:in that at the time during which Brown was ordered by her em ployer to report for work at 6 am on the morning of July 17 she was not engaged in protected activity Since the Respondent earlier had given Brown the day off Member Hunter finds that the Respondent cre ated a pretext for disciplinary action against Brown by directing her to work that morning DECISION ' J STATEMENT OF THE CASE JAMES J 0 MEARA JR Administrative Law Judge The complaint in this case was Issued on September 28 1982 and is based on a charge filed by Local 1319 La borers International Union of America AFL-CIO-CLC (the Union) on July 20 1981 ' and an amendment charge filed on July 27 1981 The complaint alleges that Respondent Taylor Hospital the employer of one Leola Brown terminated Brown because of her activities on behalf of the Union in violation of Section 8(a)(1) and (3) of the Act Respondent denies that it has violated the Act This case was heard in Philadelphia Pennsylvania on January 12 and 13 1983 and on February 9 and 10 1983 The parties at the hearing were given an opportu nity to present evidence and to argue their respective po salons At the termination of the evidence adduced at such hearing the parties waived oral argument and filed briefs which have been received and considered Based on the evidence of record including the testi mony and demeanor of the witnesses and in consider ation of the briefs filed by the parties I make the follow ing FINDINGS OF FACT I JURISDICTION Respondent Taylor Hospital is and has been at all times material herein a nonprofit corporation organized under and existing by virtue of the laws of the Common wealth of Pennsylvania and is and for some time prior hereto has been engaged in providing medical and hos pital care to patients at its Chester Pike Division Ridley Park Pennsylvania During the past year Respondent has accrued gross revenues valued in excess of $500 000 and purchased goods in excess of $50 000 directly from outside the Commonwealth of Pennsylvania Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act and further Respondent is a health care institution within the meaning of Section 2(14) of the Act I further find that it will effectuate the policies of the Act to assert jurisdiction in this case II THE UNION The Union is and has been at all times Material herein a labor organization within the meaning of Section 2(5) of the Act , III BACKGROUND Respondent Taylor Hospital is a Pennsylvania non profit corporation engaged in providing medical and hos pital care to patients at its Chester Pike Division Ridley Park Pennsylvania Leola Brown had been an employee of Respondent from February 16 1966, until July 23 ' All dates hereinafter stated are in 1981 unless otherwise indicated 272 NLRB No 109 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1981 when she was terminated allegedly for repeated in subordination Brown was originally employed in the food services department of Respondent as a dietary aid During the course of her employment she was promoted to Relief Supervisor and to Supervisor II During her tenure with Respondent comprising in excess of 15 years Brown received evaluations characterizing her employment as satisfactory or better Brown became a member of the Union in 1973 and participated as a member in its efforts to become the ex clusive representative of certain of Respondent s employ ees The unionization efforts of the Union in regard to its employees commenced in October 1973 and proceeded through various phases of litigation until on January 15 the Third Circuit Court of Appeals ordered Respondent to bargain with the Union During this period Brown actively campaigned in favor of the Union and closely worked with Union Business Agent Bernard Jackson Brown was a witness in a hearing regarding challenged ballots in 1974 and at a hearing before this Board in 1979 she testified regarding her status as an employee of Respondent Brown has consistently been active in the Union s drive to secure a collective bargaining agreement As a result of her long and active union adherence the em ployees of Respondent in attendance at a union meeting opted to have Brown act as the employee representative at the negotiations for a contract On February 16 Union Business Agent Jackson sent a letter to Respondent noting the court of appeals ruling of January 15 and requesting bargaining negotiations to commence immediately On April 27 Jackson wrote James R Redeker the attorney and representative for bargaining purposes of Respndent advising him that Leola Brown had been designated as the employee rep resentative at the bargaining negotiations Jackson fur ther requested a designation of dates to commence bar gaining, negotiations On June 12 Redeker wrote Jackson confirming that negotiation meetings would commence on July 16 and 17 A Brown s Sti atus as Employee Representative In January 1979 the manner in which the hospital pro vided food services to its patients was changed Instead of continuing as it had done in the past by a contract it undertook to conduct the department as a division of the hospital One Mark P Crowley assumed direction of the dietary department in January 1979 As a part of the re organization and restructuring of the department by Crowley job titles and descriptions were changed Among such changes was the elimination of the titles Relief Supervisor and Supervisor II Such individ uals were reclassified as either supervisor or dietary or cafeteria aides In the days prior to the actual negotiating meetings between Respondent s representatives and the Union s representatives Brown helped Jackson in the formulation of proposals for the contract and on April 9 attended a meeting of union adherents for the purpose of discussing contract proposals at the forthcoming negotia lions On April 14 Brown met with Crowley and Respond ent Vice President Dominic Colaizzo In essence that meeting resultea in a discussion between the parties of Brown s status as a supervisor or as an employee Brown expressed the belief that she was not a statutory supervi sor but a relief supervisor and thus eligible to participate in union affairs During the long period of litigation ending in the Third Circuit s order of January 15 the issue of the status of relief supervisors was fully litigated The result of such litigation was that employees such as Brown were considered to be within the unit and not statutory supervisors The onset of Crowley as director of foods services in January resulted in a change in the job titles of these employees It did not however sub stantially change the duties performed by these employ ees and as a result Brown was of the opinion that she was entitled to attend union meetings and participate in union campaign activities Both Calaizzo and Crowley expressed concern that her attendance at the union meet ings might well be construed as a violation of the Na tional Labor Relations Act They directed Brown not to attend such meetings and issued a written warning that any future involvement on her part either direct or indi rect which may violate the rights of the hospital or the bargaining unit according to the Act could be interpreted as insubordination and may result in further counseling or disciplinary action As a result of this position on the part of Respondent Brown in counsel with union at torney Steven Richman advised Respondent that Brown desired to remove herself from the questionable supervi sory status described by Respondent and to be demot ed to a bargaining unit position Upon such demotion Brown was designated as the employee representative of the Union s bargaining team Brown s decision to request and accept demotion at a loss in wages and benefits in order to participate in union affairs without a cloud caused Crowley to be upset B The Negotiating Meetings of July 16 and 17 On being nominated to represent the employees on the bargaining committee in liaison with the union represent atives and on learning that the face to face contract ne gotiations were to commence on July 16 and 17 Brown spoke to a Catherine Wesley on July 1 Wesley was a su pervisor charged with setting the work schedule for Leola Brown and others in the food services department At the time Wesley was working on the work schedule for Brown among other employees Brown told Wesley that she was to be in the board room at the negotiating sessions on July 16 and 17 and could not be scheduled for work on those days Wesley took the work schedule she was working on and went to the office of Crowley The next day Brown saw the schedule again and noted that she was scheduled to work from 11 a m to 7 30 p m on July 13 She was told by Margaret Nolan direc tor of personnel that the meeting was definitely to be held on July 16 and 17 after which Brown went to her supervisor Gloria Graham inquiring about her schedule for July 16 and 17 She was told by Graham that she would have to speak to Crowley At the end of the day when Brown had clocked out she went to Crowley s office where Supervisor Graham Nannie Cottman and Crowley were present Brown told Graham not to forget - TAYLOR HOSPITAL 699 that Brown was supposed to be off on July 16 and 17 Crowley indicated that he did not know whether she could be off on those days Brown suggested to Crowley that he speak to Nolan and find out what procedure should be followed Later that evening Crowley called Brown and told her that she would have July 16 and 17 off if she could come to work over the weekend which would have been July 18 and 19 Brown told Crowley that on that particular weekend she was engaged with a family reunion to which Crowley had also been invited Brown also told Crowley that she had already made her arrangements to fly to Charlottesville for the reunion on Friday Crowley said he would have to get back to her on the matter On July 15 Crowley held a meeting of employees of the food services department where he an nounced that Brown was no longer a supervisor and that she had taken a demotion at her request to be on the bar gaining team He stated to the personnel that it would be necessary for him to bring in four employees on the weekend to fill Brown s position Crowley was ques honed as to why it was necessary to bring in four em ployees to replace Brown on those days when the bar gaining team was meeting Crowley did not respond to the question On the following day July 16 at 10 a m Brown met with the union negotiating team in Respondent s board room In addition to Brown the union team comprised a Mr Wilburn a union official and Jackson The hospital was represented by James Redeker Director of Nursing Nolan Administrator Scott Murray Head Nurse Judith Horvath and Vice President of Administration Dominic Colaizzo At the opening of the meeting Redeker stated that there was some conflict or breakdown of commum cation between Brown and her supervisor and that Brown did not inform Respondent in enough time to have her schedule off for July 16 and 17 Jackson and Wilburn charged that Crowley had harassed Brown on the matter of scheduling her to attend the negotiating meetings Redeker said that that matter would be raised later but that as long as Brown notified her superiors she had no problem being at the negotiating sessions During the negotiations held that day certain contract items were reviewed and Jackson and Brown privately con ferred as to the legitimacy or accuracy of matters stated by Respondent s personnel One of the subject matters raised was that Brown and the Union did not feel that employees who were on vacation should be called into work during that vacation period Brown stated that she did not think it was right that one Agnes George a food service employee was called in from vacation to fill in for Brown in order that she could have July 16 and 17 off from work The meeting terminated about 3 45 p m As the various teams were assembling their papers after the adjournment of the negotiating meeting Redeker told Brown that with regard to the matter of her being off on July 17 the following day she did not have to worry about coming to work on that day Redeker re peated this statement at least two other times before the group parted Prior to the time the union team broke conference they had agreed to meet the following morn ing at 9 a m to consider certain counterproposals made by the Respondent Arrangements were also made for Jackson to pick up Brown at her home the following morning and drive her to the 9 a m meeting of the union team and subsequently to the 10 a m negotiating session C The Alleged Personnel Shortage of July 17 After the bargaining session of July 16 had concluded at 4 15 p m Crowley spoke to Colaizzo about a person nel shortage apparent in his department for the following day Colaizzo and Crowley joined the bargaining team and presented the problem to them Present at this meet were Redeker Murray Colaizzo and Horvath Crowley told the group that two employees had resigned the week before and had not been replaced and that another employee had quit on July 16 but was urged to work on July 17 and a fourth employee had called in sick During the period involved the census of the hospital was 95 percent and staffing had been anticipated for an 85 per cent occupancy Murray told Colaizzo and Crowley to review the problem and present him with potential op tions to alleviate it It was decidied that nonessential services would be canceled resulting in a need to schedule one person to permit the department to function adequately During the negotiations on July 16 Murray was surprised to hear that one of the positions of the Union was that em ployees had? been required to work on their days off and to work many consecutive days without a day off He had discussed these matters on prior occasions with the department heads of the hospital and assumed that such scheduling practices were the exception not the rule Murray was supnsed to learn during negotiations with the Union on July 16 that such scheduling abuses were sufficiently frequent to cause the Union to raise the issue in negotiations In response to Murray s direction that the matter of the personnel shortage be resolved by Crowley and Colaizzo it was determined that three op tons were available to solve the problem It was deter mined that an employee could be requested to work in stead of taking that employee s day off A second option was to maintain the schedule of Agnes George who was called in from her vacation to work in place of Brown on July 16 George had been instructed to work on July 17 and was at that time prepared to do so A third option was to require Brown to work her original shift notwithstanding her expected presence at the July 17 ne gotiating session The first option of obtaining an em ployee who was scheduled for a day off was considered and allegedly dismissed since it would have meant that that employee would work 10 or 11 days without a day off also the Union had raised at the negotiations on July 16 the issue of overworking part time employees Re spondent considered the Union s discussion in this regard as important in evaluating its options The second option was rejected because it involved another matter which the Union had raised during negotiations and considered it to be an abuse of personnel Agnes George had been called in from her vacation to work in place of Brown on July 16 George had complained to Crowley about this interference of her vacation and Brown had raised the use of George to replace at the departmental meeting of July 15 and again at the bargaining meeting of July 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 16 The remaining option available to Respondent was to schedule Brown for her usual shift Crowley attempted to telephone Brown at her home on the evening of July 16 and advised her of the deci ston to require her to work from 6 a m to 2 30 p m the following day notwithstanding the bargaining session scheduled at 10 a m for that day He was unable to reach Brown by telephone and therefore prepared a handwritten note which recited as follows Due to critical staffing which presently exists you are to report to work for your regular schedule time Friday July 17 1981 at 6 a m Mr Redeker will still want to meet with Mr Jackson and Mr Wilburn to discuss the situation with them tomor row at the scheduled time Your cooperation will be much appreciated Thanks Mark P Crowley This note was left by Crowley at Brown s home with Brown s mother Brown did not see the note when she returned that evening but observed it for the first time at approximately 6 45 a m on July 17 Brown telephoned the hospital and spoke to Miss Rhoda Lucas who was a supervisor at the time She informed Lucas that she had just received the letter informing her that she was to be at work at 6 a m and it was then 6 45 a m She was ad vised by Lucas that she could come in at that hour and work at least until 10 a m when she could attend the ne gotiating meeting Brown had planned to be picked up at her home by Jackson and traveled with him to attend the prenegotiating meeting with the union team and then to be driven to the hospital for the 10 a m negotiating meeting She had put her car in for repairs and did not have it available Also she was advised that morning by Jackson that the 9 a m meeting had been postponed since Jackson had a conflict Brown contacted the me chanic who was repairing her car and persuaded him to deliver the car back to her at his earliest opportunity After receiving the car about 9 40 a m she proceeded directly to the hospital arriving approximately 9 50 or 9 55 a m Brown immediately went to the Board room and shortly after 10 a m Wilburn and Jackson of the union negotiating team were present and Redeker Co laizzo Murray Wesley and Crowley appeared for the company The meeting was informed that there was an emergency in the kitchen and if Brown did not report there she would be subject to suspension pending termi nation Upon being directed to return to work Jackson and Wilburn along with Brown called Steven Richman an attorney for the Union They were advised by this at torney that Brown should return to work which Brown did During that day while Brown was working her shift Crowley delivered a suspension letter to Brown Subsequently on July 23 Brown received a letter term nating her employment allegedly for repeated insubordi nation culminating in her failure to report to work at 6 am on July 17 Discussions and Conclusions The General Counsel contends that the discharge of Leola Brown was discriminatory in regard to her tenure of employment and was accomplished in order to dis courage membership in a labor organization in violation of Section 8(a)(1) and (3) of the Act Respondent con tends that Leola Brown was terminated for her refusal to report to work as ordered and her discharge comprised discipline consistent with Respondent s policy and proce dure I find that the discharge of Leola Brown was an inter ference with her exercise of rights guaranteed by Section 7 of the Act and was an act of discrimination in regard to tenure of employment accomplished to discourage membership in the Union and had the clear tendency to discourage other employees from union participation Brown was an employee of Respondent with tenure in excess of 15 years during which she was promoted to Relief Supervisor and to Supervisor II Her employ ment during her tenure was evaluated by Respondent at a level which this record discloses could be character ized as satisfactory or better In 1973 at the commencement of efforts of the Union to organize Respondent s employees Brown as a member of that Union campaigned in favor of the Union and on more than one occasion testified on behalf of the Union on some preliminary issues arising during the lengthy litigation pursued in the past between the Respondent and the Union Members of current manage ment deny that they knew that Brown was active in union affairs at the Company stating that many of them were not with Respondent during the prior litigation It is inconceivable that litigation such as was pursued here by Respondent from 1973 to 1981 was not a matter of sufficient notoriety within the management circles of Re spondent that company officials even though recently aboard would not be aware Notwithstanding this con tention the Respondent s vice president Colaizzo and the director of the dietary department Crowley were clearly made aware of Brown s sympathies when she was found to be attending union meetings and advised not to do so by Colatzzo and Crowley When in January 1979 Respondent reorganized its method of providing dietary and meal service for the pa tients and appointed Crowley as the director of that de partment job titles and job descriptions were rewritten The earlier litigation between the Union and Respondent centered among other things around the inclusion of Relief Supervisors in the bargaining unit Extensive litigation resulted in the determination that such person nel including Brown were includable in the unit Subse quent to such a determination Respondent in reorganiz mg its dietary department rewrote the job titles and de scnptions applicable to this personnel Thus the prior determination that such personnel are includable in the bargaining unit is no longer resolved Brown concluded that she remained a member of the bargaining unit not withstanding the continuation of her duties as in the past It is unnecessary to determine in this case whether or not such personnel are includable in the bargaining unit under the newly defined job titles and descriptions TAYLOR HOSPITAL 701 Brown believing she was a member of the bargaining unit attended union meetings of which Respondent became aware Respondent advised her not to attend such meetings and also advised her that in the event that she continued to do so she would be deemed insubordi nate and be disciplined Brown s union sympathies were sufficiently strong that she requested to be demoted in order that she could continue to participate in union ac tivities This resulted in a reduction in wages and benefits to her The request by Brown for her demotion upset Crowley On April 27 the Union advised Respondent that Brown was elected by the employees within the bargain ing unit as their representative on the bargaining commit tee In order that Brown attend as a member of the union bargaining committee at the initial face to face session of July 16 it was necessary that she be scheduled off work on those days Brown s efforts to accomplish this sched uling was met with resistance from her supervisors Al though she informed her supervisor of her need to be off it was several days and as a result of Brown s per sistence that the schedule was set enabling Brown to attend the union meeting 2 The bargaining session between Respondent s bargain ing team and that of the Union on July 16 was the first face to face 'session scheduled in the exceedingly long period of time between the inception of the union move ment at Respondent s facility Brown was active in her participation on the Union s bargaining panel She was the only member of the panel with knowledge of the pe culiar needs of the bargaining unit s members at Re spondent s facility Among the other things raised at that session was the practice of Respondent to work employ ees an excessive number of days without relief and to call personnel in from their vacations to work During this initial bargaining session the issue was raised of Brown s difficulty in obtaining scheduling to permit her attendance at the meeting Brown received assurances from Redeker in the presence of the other members of Respondent s bargaining team that she would be free to attend the bargaining session contemplated for July 17 She was expressly assured of this by Redeker on more than one occasion during the July 16 session Subsequent ,to the July 17 bargaining session in the early evening of that day Crowley advised Calaizzo that a emergency condition had arisen at the hospital with regard to staffing the dietary department The so called emergency or crisis situation arose because of the resig nation of an employee the high level of patient bed oc cupancy at the hospital at that time and the need to excuse Brown to attend the July 17 bargaining session At this juncture Respondent contends that it had three 2 Crowley ongmally suggested that if Brown was to be off on July 16 and 17 that she work the following weekend Crowley knew that Brown had planned a family reunion in Richmond on that weekend since he had been invited by Brown to attend Eventually Brown was scheduled to be off on the days in question and did attend at the bargaining session corn mencing at 10 a m on July 16 In order to replace Brown on her shift Crowley requested an employee Agnes George to abandon her vacation and work Brown s shift on July 16 and 17 thus effectively replacing Brown and fulling the gap created by Brown s attendance at the bargain ing session courses of action to solve the dilemma First Respondent could request an employee to work on July 17 other wise that employee s day off A second option was to maintain Agnes George who had been scheduled to work on July 17 as Brown s replacement or a third option Respondent could require Brown to work her shift notwithstanding her previously excused absence Respondent contends that since the Union at the July 16 meeting through Brown had objected to the scheduling of employees on consecutive days notwithstanding their day off and to recalling employees from their vacation its only viable alternative to satisfy the Union was to re scind Brown s excused absence of July 17 and schedule her to work her usual shift on that day As a result Crowley advised Agenes George not to report to work on July 17 and wrote a letter to Brown instructing her to report to work on her usual shift on July 17 It would appear that Respondent s selection among its options to rescind Brown s excused absence was an unusual and precipitous response to the union complaint of July 16 As far as Brown was concerned the crisis at the hos pital was resolved by the substitution of George for Brown George had worked July 16 and was prepared to work on July 17 in Brown s stead Crowley contends that since the Union objected to the working of employ ees on their day off and objected to recalling employees from vacation his only option was to rescind Brown s excused absence Such deference on the part of Crowley to the union proposal of July 16 and the apparent result of it is strongly suggestive of a contrivance to thwart Brown s attendance on July 17 Brown s participation as a member of the Union s bargaining team provided the Union with information and a background which it would not have without Brown Crowley attempted to deliver a notice to Brown that she was to report to work for her usual shift the follow ing morning by personally delivering it to her home the evening of July 16 Brown was not at home and the letter was left with Brown s mother Brown did not re ceive the letter until the next morning at approximately 6 30 a m at which time she called the hospital to advise that she would be unable to attend her shift because of her scheduled appearance at the 10 a m bargaining ses sion She further testified at the hearing that her car had been delivered to a mechanic for work and that she had expected to be picked up taken to a prenegotiating meet ing of the union panel and then driven to the hospital In efforts to comply with the short and confusing notice to report to work Brown retrieved her car and went to the hospital arriving there approximately at 10 a m She went immediately to the locale where the meeting was to be held and upon being directed to report to work did so after conferring with union counsel Brown s failure to report at the commencement of her shift or at a short time after receiving the notice from Crowley was deemed an infraction of hospital rules and Brown was suspended Several days thereafter she was discharged Respondent contends that the disciplinary action which it applied to Brown was the same as it had ap plied to prior employees deemed guilty of insubordina tion in refusing a direct order from that employee s su 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pervisor It contends that Brown should have reported to work on the morning of July 17 notwithstanding direct statements from Redeker in the presence of Respond ent s bargaining panel assuring her of her excused ab sence for July 17 to attend the July 17 meeting Assum mg Crowley s decision to rescind Brown s excused ab sence was a valid selection from his three options which I do not it is clear that the notice to Brown of this deci sion was not received by Brown in time to enable her to adjust her arrangements and report for work It is clear that if the crisis that allegedly existed at the hospital at the time in question was of such severity Crowley would not have excused Agnes George from working on July 17 prior to his ability to deliver the notice to Brown It is concluded that Brown fell out of favor with Crowley when she expressed the strong desire to partici pate in union affairs by taking a demotion Crowley was admittedly upset with her for this action He was reluc tant to schedule her off in the first instance for the July 16 and 17 meeting suggesting that she work over the weekend instead and delaying informing her in a reason able time that her request for excused absence was grant ed After experiencing Brown s participation in the July 16 meeting the first face to face negotiation with the Union that Respondent experienced the subsequent sce nano was contrived It is clear that the actions of Crow ley were designed to eliminate Brown from the bargain ing team at the July 17 session This was done with the knowledge and apparent consent of Calaizzo It further appears and I conclude that when the notice to Brown was ineffectively delivered and Brown did not appear for work at 6 am on the morning of July 17 that the Re spondent seized upon the circumstances to commence the sequence which led to the termination of Brown Several factors support this conclusion (I) Brown was a known union activist in fact Brown was the most pro ductive union activist among the employees of the bar gaining unit (2) Brown was assured by Redeker in the presence of the bargaining unit for Respondent that she would be off work to attend the July 17 session and (3) the crisis which Respondent alleges occurred on the evening of July 16 was resolvable by maintaining the then scheduled substitution of George for Brown The inability of Crowley to communicate with Brown in suf ficient time for her to attend at her scheduled shift did not dissuade Respondent s contrived goal When Brown did attend at Respondent s facilities and was ordered to report to work she did so Notwithstanding all these fac tors Brown was suspended and terminated for insubor dination I conclude from the foregoing factors that the sole reason for Brown s disciplinary action culminating in her termination was Respondent s desire to eliminate Brown from the union bargaining team primarily becaue she was an effective source of knowledge of the working conditions within Respondent s facility which knowl edge was indispensable to the Union s successful bargain ing Even assuming Respondent s intentions to be sin cere the evidence of this record discloses that it was im possible for Brown to comply with the order of Re spondent After receipt of the notice by Brown on the morning of July 17 she conducted herself in a reasonable manner by getting to Respondent s facility at 10 a m and in response to Respondent s order to report to her job did so It is deemed insignificant that at the time during which Brown was ordered by her employer to report for work at 6 a m on the morning of July 17 she was not engaged in protected activity The circumstances put into motion by Respondent were such that to comply with its order would deprive Brown of her right to participate on the union bargaining panel The discharge of Brown for the reasons alleged by Respondent in light of her prounion activities and her membership on the bargaining commit tee certainly are circumstances tending to discourage membership in the Union It is difficult to sustain Re spondent s actions in terminating a good employee with 15 years tenure because of conditions put into motion by Respondent resulting in the creation of a dilemma for Brown to which she responded in a reasonable manner Existing factors compel the conclusion that Respondent s actions against Brown were prompted by other consider ations namely her union activity Brown was known to be a union supporter the history of Brown s participa ton in the company s antiunion litigation her request for and acquiring a demotion to maintain her membership in the bargaining unit her representation of the employees on the union negotiating panel and her effectiveness thereon all compel the conclusion that the reason for Respondent s harsh treatment of this employee was her union activities Although I have found that the action of Respondent here was motivated by Brown s union activities it is un necessary to find that conduct of Respondent comprised union animus The Supreme Court in NLRB v Great Dane Trailers 388 U S 26 32 (1967) related [T]here can be no doubt but that the discrimination was capable of discouraging membership in a labor organization within the meaning of the statute Dis couraging membership in a labor organization in cludes discouraging participation in concerted ac twines Some conduct however is so inherently destruc tive of employee interests that it may be deemed proscribed without need for proof of an underlying improper motive That is some conduct carries with it unavoidable consequences which the em ployer not only foresaw but which he must have in tended and thus bears its own indicia of intent [I]f it can reasonably be concluded that the employ er s discriminatory conduct was inherently de structive of important employee rights no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employ er introduces or enters into evidence that the con duct was motivated by business considerations For the reasons set forth above it is concluded that Respondent violated Section 8(a)(1) and (3) of the Act by suspending and terminating Leola Brown TAYLOR HOSPITAL 703 CONCLUSIONS OF LAW 1 Taylor Hospital is now and at all times material herein has been an employer engaged in commerce within the meaning of Section 2(2) (6) (7) and (14) of the Act 2 Local 1319 Laborers International Union of Amer Ica AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act 3 By suspending and discharging employee Leola Brown because of the exercise of her rights of Section 7 of the Act Respondent violated Section 8(a)(1) and (3) of the Act 4 The aforesaid unfair labor practices have a close in timate and adverse effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that Respondent has committed viola lions of Section 8(a)(1) and (3) of the Act it is ordered that it be required to cease and desist therefrom and from engaging in like or related unlawful conduct and to take certain affirmative action designed to effectuate the policies of the Act Having found that the Company discriminatorily ter initiated Leola Brown it is ordered that Respondent offer her immediate and full reinstatement to her job or if such job no longer exists to a substantially equivalent position without prejudice to her seniority or other rights and privileges previously enjoyed and to make her whole for any loss of earnings she may have suffered from the time of her suspension and termination to the date of reinstatement Backpay for any loss during the period during the unlawful supsension and termination shall be computed with interest as prescribed in F W Woolworth Co 90 NLRB 289 (1950) Isis Plumbing Co 138 NLRB 716 (1962) and Florida Steel Corp 231 NLRB 651 (1977) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed 3 ORDER The Respondent Taylor Hospital Ridley Park Penn sylvania its officers agents successors and assigns shall I Cease and desist from (a) Suspending or discharging any employee because of that employee s exercise of his or her rights under Section 7 of the Act (b) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action deemed neces sary to effectuate the policies of the Act (a) Offer to Leola Brown immediate and full reinstate ment to her former position or if her position no longer exists to a substantially equivalent position without prej 3 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses udice to her seniority and other rights and privileges and to make her_ whole in the manner prescribed in the sec tion of this decision entitled Remedy (b) Expunge from its records any reference to the sus pension and discharge of Leola Brown and notify her in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against her (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility copies of the attached notice marked Appendix 4 Copies of the notice on forms provided by the Regional Director for Region 4 after being signed by the Respondent s authorized representa live shallbe posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in con spicuous places including all places where notices to em ployees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 4 If 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 Na urinal Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec lion To choose not to engage in any of these protect ed concerted activities WE WILL NOT suspend or discharge or otherwise dis criminate against any of you for supporting a union or for engaging in any rights guaranteed by Section 7 of the Act WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer Leola Brown immediate and full rein WE WILL notify her that we have removed from our statement to her former job or if that job no longer files any reference to her discharge and that the dis exists to a substantially equivalent position without prej charge will not be used against her in any way udice to her seniority or any other rights or privileges and other benefits resulting from her discharge less any TAYLOR HOSPITAL net interim earnings plus interest