St. John Medical Center

DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. John Medical Center and Alice L. Deneen. Case 8-CA-13308 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEM-BERS JENKINS AND PNEI.I.O On July 22, 1980, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief' and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. : ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, St. John Medi- cal Center, Steubenville, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. Respondent's motion for oral argument is herebhy denied In our judg- ment he record, including exhibits and brief, adequaltcly presenlt the issues and the positiots of the parties z Respondent excepts to the Administrativ e Law Judges ailure to find that the charge was received by it on October 30, 197'), I day beyond the 10(b) period. Respondent's cotlention is without merit. G C Exh (h) clearly shows that the charge was served or Respondenl o October 2, 1979. The date of service is the date the charge is deposited in the mail and not, as Respondent contends, the date it is received. See Board Rules and Regulations, Series 8, as amended, Sees 102 I11l and 102 113 : We have modified the Administrative aw Judge's notice to confiorm to his recommended Order APPENDIX NOTICE To EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE wi.LI NOT question our employees con- cerning their own or the union activity of their fellow employees. WE WIIL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. ST. JOHN MI)ICAI. CENIER DECISION S AII MtINI OF Tt CASE Jo.i A. HARMAIZ, Administrative Law Judge: This proceeding was heard by me in Steubenville, Ohio, on May 19 and 20, 1980, upon an unfair labor practice charge filed on October 29, 1979, and a complaint issued on December 7, 1979, alleging that Respondent engaged in independent violations of Section 8(a)(1) of the Act by coercively interrogating employees concerning union ac- tivity and by soliciting grievances from employees to dis- courage support of the Union, and violated Section 8(a)(3) and (1) of the Act by changing the shift assign- ment of Alice L. Deneen in reprisal for union activity. In its duly filed answer, Respondent denied that any unfair labor practices were committed. After close of the hear- ing, briefs were filed on behalf of the General Counsel and Respondent. Upon the entire record in this proceeding, including my opportunity to observe directly the witnesses while testifying and their demeanor, and upon consideration of the post-hearing briefs, it is hereby found as follows: FINDIN(i OF FACT I. JURISI)ICTION Respondent is an Ohio corporation with a facility lo- cated in Steubenville, Ohio, from which it is engaged in providing health care services on a nonprofit basis. An- nually, in the course of said operation, Respondent de- rives gross revenues exceeding $250,000, and receives goods valued in excess of $10,000 directly from points located outside the State of Ohio. The complaint alleges, the answer admits, and I find that Respondent is now, and has been at all times material herein, a health care institution within the meaning of Section 2(14) of the Act 252 NLRB No. 77 514 ST. JOHN MEDICAL CENTER and an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 11. Till I AHOR OR(iANIZA IION INVOI TI) The complaint alleges, Respondent at the hearing ad- mitted, and I find that American Federation of State, County and Municipal Employees, herein called the Union, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 11t. Hfl A I F(i-I) NI AIR I.ABOR R C II(tIiS A. Background Principally involv ed herein is an issue of discrimina- tion in connection with a union campaign initiated by the Charging Party, a registered nurse (RN) assigned to the Obstetrics-Gynecological Department (OB-GYN) ill the Respondent's hospital. There are 8-9 slots in OB-GYN to be filled by RNs on a daily, three-shift basis. Prior to the events here in issue, with three exceptions, all RNs were rotated among the various shifts. Thus, the three RNs assigned to the daylight shift on a steady basis were Eleanor Kindsvatter, the head nurse in that department. her assistant. Joy McCraley, and the alleged discrimina- tee herein, Alice Deneen. Deneen testified that in April 1979,1 in connection with a school project, she drafted a modular example of prounion propaganda, which she showed to coworkers. This, ultimately, evoked interest among employees in ob- taining some form of union representation, thereby prompting Deneen to make arrangements for a meeting to consider that possibility. The meeting was held on April 30, at a Holiday Inn in a nearby community. Earli- er that morning, on the midnight shift, Assistant Director of Nurses Mary Jane Barney had separate conversations with RNs Jeannie Epifano and Elizabeth Sagun, both of whom were assigned to OB-GYN. The complaint alleges that in the course of these conversations. Barney en- gaged in coercive interrogation and also solicited griev- ances in violation of Section 8(a)(l) of the Act. In addition, it is admitted that in the course of the above conversations, Deneen was identified as the insti- gator of union activity. According to the General Coun- sel, Deneen subsequently was victimized by a change in her established schedule in reprisal for her union activity. In this connection, it is noted that since 1973 Deneen had been assigned to the new born nursery in OB-GYN and was not rotated to the afternoon or midnight shifts, but worked steady day shift. Historically. Deneen was the only RN having no vestige of supervisory responsibility who was assigned to steady dayshift. In addition, for sev- eral years Deneen had been the only RN assigned to the new born nursery; when Deneen was not working that slot was filled by a licensed practical nurse (LPN) who was supervised by the RN in charge of labor and deliv- ery. Nonetheless, following her return from vacation in late July, Deneen found that she was scheduled to rotate on the second and third shift 2 days per week. She was informed by OB-GYN Head Nurse Eleanor Kindsvatter Unless olherswise indicated all dates refer to 1979 that this change was necessary due to the difficult in filling RN assigmeitnt s on the other shifts during the va- cation period. However, upon expiration of the vacation season, when the next schedule came out in late August or early September Deneen was continued on a rotating basis. In consequence, Deneen sought the assistance of the National Labor Relations Board, and initially filed an unfair labor practice charge on September 12, 1979. That charge was either withdrawn or replaced by the charge on which the instant proceeding is based, which was filed on October 29, 1979. Based on the foregoing, it is alleged in the complaint that Respondent violated Sec- tion 8(a)(3) and (1) of the Act by converting Deneen's permanent day shift assignment in the nursery to a rotat- ing schedule. B. Interference, Restraint, and Ceorcion Jeannie Epifano testified that, at approximately 2 am. on April 30, she, together with Sagun, and Assistant Di- rector of Nursing Barney participated in a conversation in which the Union was among several topics discussed. According to the testimony of Epifano, "it was more or less friendly conversations among the three of us where we each gave our personal opinion of what we felt and what we didn't feel, and this and that." Later that morning, according to Barney, she learned from nmother supervisor that a union meeting had been scheduled for that evening. She admittedly approached Epifano and Sagun, informing them that she had learned of the meeting. in doing so, according to the credited testimony of Epifano, who was corroborated by Sagun, Barney asked the RNs if the information Barney had re- ceived was true. 2 Both Epifano and Barney agreed that the latter's demeanor was friendly and that she was smil- ing at the time. With respect to the alleged solicitation of grievances, Epifano testified that during the second con- versation they again discussed the pros and cons of union representation, and that it was her belief that "as near as she could recall," Barney asked what some of the prob- lems were that contributed to the feeling that a union was needed. Moreover, the allegation of interrogation was also supported by testimony of Epifano, that Barney asked who was responsible for the union activity and, that, in response, Deneen was named. 3 Based on a com- posite of credible testimony, I find that Sagun. in a friendly context, did question the two RNs as to whether a union meeting was scheduled, as to the identity of the instigator, and as to the problems that had contributed to union activity. At least, insofar as Barney inquired as to the identity of the instigator of union activity, she en- gaged in an interference with Section 7 rights unjustified under any standards regulating coercive conduct. Hence, I find that Respondent violated Section 8(a)(l) of the 2 According to Barney. she stated fon that occasion "there is a union meeting tonight girls, you didn't tell me anything about it " I preferred the account ofr Epifano and Sagun : Barney denied asking any questions concerning the identity of the in- stigator. but does admit that Deneen's name as volunteered in this regard Sagun testified that she did not hear Denleen's name mentioned during he conversation 515 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act by coercive interrogation of employees concerning the union activity of a coworker. With respect to the allegation that Barney unlawfully solicited grievances, while the evidence on which the General Counsel relies is somewhat sketchy, it merely portrays an isolated expression of interest in employee complaints, lacking in indication that Barney's remarks included any direct or implied suggestion that any such problems would be considered by management or cor- rected. Cf. Reliance Electric Company, Madison Plant Me- chanical Drives Division, 191 NLRB 44, 46 (1971). Fur- thermore, the alleged 8(a)(l) violation in this respect, oc- curred during the second conversation that day, and fol- lowed a prior discussion in which the RNs had willingly exchanged their views as to the pros and cons of union representation. In these circumstances, this subsequent effort to discern the conditions leading to union activity would likely be viewed as an attempt to clarify views previously expressed by the RNs, and hence sentiment one way or the other held by Sagun and Epifano would in all probability have been disclosed during the earlier conversation. Cf. Arrow Molded Plastics, Inc., 243 NLRB 1211 (1979). In these circumstances, I am not convinced that substantial evidence shows that the inquiry by Barney as to the problems contributing to union activity either implied that hospital administrators would act fa- vorably to neutalize those problems or was calculated to uncover the specific union sentiment of the employees involved. Thus, I shall recommend dismisaal of the alle- gation in the complaint that Respondent violated Section 8(a)(l) through Barney's solicitation of grievances. 4 C. The Alleged Discrimination Deneen had been employed by Respondent as an RN since 1962. During the latter part of 1973, the RN re- sponsible for the new born nursery on the daylight shift retired. Deneen applied for, and after an interview was given that position on a probationary basis.5 Following successful completion of the probation, Deneen contin- ued to work steady daytime in the nursery at all times thereafter without change in her schedule until the events here in issue. Turning to the specific circumstances surrounding the 1979 scheduling change, Deneen was notified in late July that it was necessary to place her on rotation because of demands for RNs on other shifts during the vacation period. Indeed, during this period Head Nurse Kindsvat- ter as well as her assistant, Joy McCraley, were also ro- tated off steady daylight, because of the shortage of RNs. Deneen accepted this unprecedented revision in her schedule and agreed that it was warranted. Howev- 4 See Jffco Manufacturing Company, 211 NLRB 787 (1974). s Deneen did not strike me as an overly favorable witness. She im- pressed as having a endency to perceive or interpret events not necessar- ily as they were, but in a manner serving her personal interests I reject what I perceive to be a suggestion in her testimony that she volunteered for the nursery to accomodate the hospital. Although I believe it entirely possible that the head nurse in OB-GYN at that time advised Deneen that taking that position would be compatible with personal circumstances confronting Deneen I am inclined to believe that Deneen thereafter ac- lively pursued the job in her own interest. I also discredit any implication arising from the testimony of Deneen that when afforded that job, she was given a commitment that she could hold it as long as she wished er, this view was short-lived, for after the vacation period had ended, a further schedule was issued, through which Deneen was continued permanently on a rotation basis, requiring her to work all three shifts, interchange- ably. 6 Deneen disapproved of the new schedule, believ- ing that it was a reprisal for her union activity. She therefore elected not to protest to hospital officials, but instead contacted the National Labor Relations Board. After discussing the charge with an agent of the National Labor Relations Board, at his suggestion, Deneen dis- cussed the matter with Jean Van Kirk, the director of nursing services, and Delores Finley, the associate direc- tor of nursing. She was informed by them that she would not be reinstated to steady daytime. It was explained that all RNs would be required to rotate on three shifts and that a full-time RN in the nursery could not be justified in view of a decline in the census of new births and the need for cost containment.7 The economic justification or the change in Deneen's schedule is not unconvincing. Over the years, a number of factors have contributed to a downturn in the census of new births at the Hospital. Among the contributing influences was broadened availability and use of birth control devices. In addition, the Steubenville area is serviced by another general Ohio Valley Hospital which provides birth control services which Respondent, as a Catholic hospital, does not offer. It also appears that in recent years a number of pediatricians and obstetricians that had practiced at both Steubenville hospitals aban- doned St. John and consolidated their services in the Ohio Valley Hospital, an event which also reduced intake at St. John. This downturn in new birth census figures8 reduced demands upon the new born nursery. In consequence, well prior to the advent of any union activ- ity, on the afternoon and midnight shifts, and on daylight when Deneen was not working, an LPN was utilized in place of an RN in the nursery. Thus continued utilization of Deneen full-time, on day- light, in the nursery reflected at least two basic deficien- cies. For while she worked steady daytime, all other RNs in OB-GYN, except for the head nurse and assistant head nurse in OB-GYN, rotated. Secondly, LPNs had manned the nursery, without need for an RN in that po- sition, on all shifts other than those filled by Deneen. Thus, it is a fact that according to demands upon the OB-GYN department prior to the advent of union activi- ty, Deneen's position not only reduced the opportunity " Exactly when this occurred is not specified on the record. From all indications, the schedule was posted in late August or early September. 7 Finley testified that, in preparing the schedule following the vacation period, Kindsvatter informed Finley that a morale problem existed in OB-GYN, and that it would be difficult not to rotate Deneen because people in the department were complaining. Finley told Kindsvatter that it was about time that Deneen was treated like everyone else and placed on rotation. Kindsvatter and Finley also discussed the fact that an RN in the nursery during daylight was no longer required in view of a low census of new horns. Parenthetically it is noted that prior to the instant events the nursery on the afternoon and midnight shifts was attended by an LPN, who reported to the RN in the position of "labor and delivery nurse " Deneenl acknowledged that despite her 18 years service in the hospital she was not qualified to serve as labor and delivery nurse, but that all other RNs in OB-GYN were so qualified. " See Resp Exh 5 516 ST. JOHN MEDICAL CENTER to schedule other RNs during the daylight shift, but also entailed the use of an RN in a position which could he filled by a less qualified paramedical. This continued for a time despite a decline in working conditions of O)1-GYN personnel. For example, RNs in that department, at times when there were few patients demanding their care, were shifted involuntarily to other departments in the hospital, a practice which they dis- liked. These conditions were temporarily alleviated. however, beginning in December 1978 when a strike shut down operations at Ohio Valley Hospital. The strike continued for 3 months and during that period baby deliveries in the Steubenville area were shifted to St. John Hospital. The dramatic increase in the number of births during that period is evident from the fact that between December 1978 and March 1979 there were 251 deliveries at St. John, in contrast with a total of 61 deliv- eries during the succeeding 4-month period. This in- crease in activity at St. John during the strike allowed incumbent RNs broadened opportunities to work desir- able shifts and insulated them from removal from OB- GYN for work in other departments. However, upon termination of the strike, morale declined and OB-GYN RNs complained about special privileges and the fact that they were not scheduled sufficiently to the daylight turn. As could be expected, Deneen was the focal point of certain of these complaints. The rotation of Deneen did help to allay these con- cerns. Under Respondent's manning procedures, there were a maximum of 4 daylight slots for RNs in OB- GYN. Thus, when Deneen was in the nursery she blocked one of the said positions, 5 days per week. Moreover, before Deneen's rotation, the head nurse and assistant head nurse were required to assume the duties of the "Post-mortum" nurse or the "labor and delivery" nurse. By placing Deneen on rotation, however, on days when she was scheduled to work evenings, additional daylight vacancies were created allowing an RN that would otherwise work an evening shift to be rotated to daylight. Indeed, on those occasions, the combination of Deneen's removal from the nursery, the assignment of an LPN to replace her, and the assignment of another RN to function either as postmortum or labor and delivery nurse, released the head nurse and her assistant from direct nursing and allowed them to concentrate on their administrative responsibilities. A further consideration not verbalized directly to Deneen by Finley or Kindsvatter as a specific ground for their action but nonetheless supportive thereof was the fact that in the fall of 1978, a feasibility study of the Hos- pital was conducted by the accounting firm of Ernst and Ernst. In consequence, specific recommendations were made with respect to various phases of the Hospital's op- erations, including elimination of all special scheduling privileges. According to the credited testimony of Finley, the hospital was slow to implement these recom- mendations because they related to problems which had developed over the years and could not be eliminated over night. Instead, head nurses in the various depart- ments were instructed to prepare their subordinates for eventual changes. With respect to OB-GYN, Kindsvatter testified that nurses within her jurisdiction were in- formed by a notice posting and a monthly meeting in April 1979 that they could look forward to, among other things. an elimination of special privileges. Deneen was not recalled to rebut Kindsvatter. I credit the latter, noting her testimony was uncontradicted and that the delay evident in her testimony between the meetings with OB-GYN personnel and completion of the Ernst and Ernst study was not reduced to the implausible, when one considers the supervening strike and the free- dom with respect to scheduling allowed the RNs during that period due to the increase in census. On this record there can be no dispute with the fact that prior to Deneen's placement on rotation, her assign- ment as RN on steady daylight in the new born nursery entailed an inefficient use of an overqualified RN and narrowed the opportunity for other RNs to work the daylight shift. Undoubtedly, issuance of a remedial order upon the General Counsel's allegation of discrimination in her case would perpetuate the inequity and inefficien- cy inherent in her former arrangement. However, the in- quiry does not end there, for, from all appearances on this record, prior to Deneen's involvement in union ac- tivity, Respondent, for several years, honored her privi- leged status and had condoned their effects. The disposi- tive question is whether the General Counsel has estab- lished by preponderance of the evidence that the correc- tion made in either late August or September 1979 was either in whole or in substantial contributing part moti- vated by Deneen's union activity. Although the question is not free from doubt, I find that the General Counsel has not met his burden on this record. There is no question that Deneen's role as instigator of the union activity which commenced in late April, was known in advance of her placement on permanent rota- tion. Beyond this, however, the elements of a prima facie case of discrimination are either lacking or enshrouded with vagueness. Thus, on the question of timing, it is dif- ficult to conclude that the action against Deneen was particularly suspect for, on this record, the precise status of the organization campaign at that time is unclear. Al- though Deneen testified generally that meetings were held and cards were being solicited, precisely when the former took place remains unspecified. Indeed her testi- mony that card solicitation was still in progress at the time of the hearing 1 year after the inception of organi- zation activity is not at odds with the possibility that the campaign never really reached a significant threshold. In any event, there is nothing in the record to suggest that at times corresponding to the permanent change in Den- een's schedule, organization had matured to a point in- fecting such action with inordinate suspicion. Further- more. the evidence of animus on this record does not rise to a level exhibiting a proclivity upon Respondent's part to combat organization through reprisal. During an orga- nization campaign which, according to Deneen, contin- ued for more than a year, there is no suggestion on this record that management formally addressed itself there- to. and indeed the only evidence of communication be- tween supervision and rank-and-file personnel pertaining to that issue occurred four months earlier. Although in the course thereof, Section 7 rights ,Were violated, that 517 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indiscretion might be fairly described as isolated, and, oc- curring as it did, in the context of a conversation be- tween friends, considering its nature, it was not so griev- ous as to be equatable with the degree of union animus which might tend to support an inference of discrimina- tion. Taking full account of the persuasive economic justifi- cation for placement of Deneen on rotation, on the entire record I am not convinced that Respondent was obliged, because of her known involvement in union activity, to refrain from correcting a longstanding personnel problem recently aggravated by a continuing downturn in census and a concomitant unrest among Deneen's peers. I am persuaded that Respondent placed Deneen on rotation solely on the basis of legitimate considerations and I find that the General Counsel has not proven by a preponder- ance of the evidence on the record as a whole that this occurred for reasons proscribed by Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent St. John Medical Center is a health care institution within the meaning of Section 2(14) of the Act and an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. American Federation of State, County and Munici- pal Employees is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by on April 30, 1979, coercively interrogating employees concerning the union activity of a fellow employee. 4. Respondent did not violate Section 8(a)(3) and (1) of the Act by in late August or early September 1979, scheduling Alice L. Deneen to a permanent rotation. 5. The aforesaid unfair labor practice is an unfair labor practice having an affect upon commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that Re- spondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act.9 9 A claim is made by the General Counsel on behalf of Deneen that in consequence of the schedule change, Deneen lost earnings in connection Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDER"' The Respondent, St. John Medical Center, Steuben- ville, Ohio, its officers, agents, auccessors, and assigns, shall: 1. Cease and desist from interrogating employees con- cerning the union activity of their fellow employees or in any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its facility in Steubenville, Ohio, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. with outside employment at several nursing homes. Were I to have round the 8(a)(3) violation herein. any remedy would be limited to restoration with no provision for backpay. Thus, I did not believe and discredit Den- een's testimony that she was precluded from maintaining customary hours of work at the nursing homes because of any conduct on the part of Respondent herein. io In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. " In the event that the Board's Order is eniforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall read "Posted Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 518