Hubbard Regional Hospital

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 858 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hubbard Regional Hospital and District 1199 Mass.,
National Union of Hospital & Health Care
Employees, RWDSU/AFL-CIO. Cases I CA
11683, 1-CA-11980, 1-RC-14218, I1-RC-14220,
and 1-RC-14271
September 30, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTIONS
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 20, 1977, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, to
modify his remedy,2 and to adopt his recommended
Order.
a ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Hubbard Re-
gional Hospital, Webster, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
[Direction of Second Elections and Excelsior
footnote omitted from publication.]
I We agree with the Administrative Law Judge's conclusion that the
discharges of Geraldine Siegmund, Sharon Allard. Susan Fjellman, and
Marlene Plaza were discriminatory. Although other factors may have played
a role, we conclude that hut for their union activities none of the four would
have been fired.
2 In accordance with our decision in Florida Steel (orporution, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25. 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: On
April 23 and July 8, 1976, the charges in this case were filed
by the Union. On January 14 and February 4, 1976, the
representation petitions were filed, and on June 10, 1976,
elections were held. On June 16, 1976, objections to
conduct of the elections and conduct affecting the results
of the elections were filed by the Union. On July 1, 1976,
an initial complaint issued in Case I-CA-11683 and on
August 13, 1976, that case was consolidated with Case I-
CA-11980 and the representation cases. A consolidated
complaint was issued, and a hearing was directed upon the
complaint and the issues raised by the Union's first three
objections to the election.
A hearing was held before me on October 6, 7, 8, 26, and
27, 1976, in Milford and Worcester, Massachusetts. At the
hearing counsel for the General Counsel deleted from the
complaint certain allegations as to which no evidence has
been offered. At the conclusion of the hearing the parties
waived oral argument. After the hearing briefs were filed
by counsel for the General Counsel and Respondent.'
The principal issue raised in this proceeding is whether
Respondent on or about April 14, 1976, discriminatorily
discharged registered nurses Geraldine Siegmund, Sharon
Allard, and Susan Fjellman and licensed practical nurse
Marlene Plaza and thereafter refused to reinstate them
because of their activities on behalf of the Union. Also at
issue is whether Respondent through its supervisors
interrogated employees concerning their union activities or
made certain threats and promises to them. The issues
raised by the objections are the same as those raised by the
complaint. Respondent denies the commission of any
unfair labor practices and contends that it engaged in no
objectionable conduct which would warrant setting the
elections aside.
Upon the entire record in this case including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a nonprofit Massachusetts corporation, at
all times material has been engaged at Webster, Massachu-
setts, in the operation of a hospital providing health care
services. Its annual gross revenues exceed $250,000, and it
annually receives goods, materials, and services valued in
excess of $50,000 from points located outside Massachu-
setts. I find that Respondent is an employer engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
I Certain errors in the transcript have been noted and corrected.
232 NLRB No. 130
858
HUBBARD REGIONAL HOSPITAL
11. THE LABOR ORGANIZATION INVOLVED
District 1199 Mass., National Union of Hospital &
Health Care Employees, RWDSU/AFL-CIO, referred to
herein as the Union, is a labor organization within the
meaning of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Four Discharges
I. The organizing efforts of Respondent's nurses
In 1975 some of Respondent's nurses formed an
independent union known as the Community Nurses
Association or CNA. An election was held, and CNA was
certified as the representaive of the nurses in May 1975.
After several collective-bargaining meetings, negotiations
broke down, and in December 1975, CNA voted to affiliate
with the Union. After the affiliation vote the Union sought
recognition as representative of the nurses which Respon-
dent denied.
On January 14, 1976, the Union filed its petitions in
Cases I-RC-14218 and I-RC-14220 seeking elections in
units of technical employees and service and maintenance
employees. The Union filed a further petition on February
4, 1976, in Case I-RC-14271 seeking an election in a unit
of registered and licensed practical nurses. A consolidated
hearing which ended on March 2, 1976, was held in
Worcester and Webster, Massachusetts. On May 14, 1976,
the Regional Director issued a Decision and Direction of
Elections which the Board amended on June 8, 1976.
Elections were conducted in the three units on June 10,
1976, and in each unit a majority voted against representa-
tion by the Union.
From December 1975 on, a number of nurses, including
each of the alleged discriminatees, wore buttons while at
work indicating support of the Union. Each of the
discharged nurses also attended one or more days of the
hearing held in the representation cases in the spring of
1976. Allard had also testified at the representation hearing
a year earlier which preceded certification of CNA and
served as an officer and bargaining committee member for
CNA.
During the month of December 1975, nursing service
problem report forms were completed by supervisors with
respect to each of the four alleged discriminatees recording
that each was wearing a union button on her uniform. The
forms were placed in their personnel files where they
remained thereafter. Earlier in April 1975, Patricia Soltys,
Respondent's assistant director of nurses, had written on
an otherwise favorable evaluation of Siegmund that since
2 In explanation Mrs. Solt)s testified that Siegmund was not up to her
usual self in that she was hypercritical of management decisions.
I It is stipulated that Siegmund was not a supervisor within the meaning
of the Act.
4 The testimony of Mrs. Solts and Siegmund is in conflict as to the
nature of their discussion of Mr. Soltys' condition. According to Mrs. Soltys.
she explained to Siegmund that there was a possibility of cancer, and
Siegmund sought to reassure her by referring to a former patient named Bell
who had similar symptoms and had recovered. Siegmund denied learning at
that time of the possibility of cancer and testified that the conversation
about Bell occurred the following day at lunch. Although as indicated
below, I have credited Mrs Soltys in many respects and have not credited
the union activity started, "emotionally she has not been
up to her usual self, and the personnel on her unit have also
been feeling uprising tensions." 2
2. The "yellow bird" incident
Around April 1, 1976, Edward Soltys, husband of
Patricia Soltys, was admitted to the hospital as a patient
suffering from jaundice of an unknown cause. Because
infectious hepatitis was suspected, Soltys was placed on
precautions in isolation. Nursing personnel entering and
leaving his room were required to wear yellow disposable
gowns over their regular uniforms and to use masks and
gloves, if necessary, in caring for him. Disposable dishes
were used, and precautions were taken in the handling of
all materials taken from his room.
By the middle of the following week the cause of Mr.
Soltys' jaundice was still unknown, and his doctors decided
to perform exploratory surgery to attempt to determine it.
Among suspected causes was the possibility of cancer,
although Soltys' chart did not so indicate.
On April 8, the day before the scheduled surgery,
Siegmund, who was head nurse in unit D,3 where Mr.
Soltys' room was located, obtained Mrs. Soltys' signature
on a surgical consent form and spoke to her briefly about
the surgery. At the conclusion of their conversation
Siegmund commented that she did not know how they
were going to transport Mr. Soltys to surgery and that she
guessed they would have to wrap him in a plastic sheet. 4
The next morning, Friday, April 9, Mr. Soltys was
prepared for surgery and given preoperative medication,
including Demerol to make him drowsy, by the night-shift
nurses in unit D. The day-shift nursing staff, which came
on duty at 7 a.m., was responsible for reviewing the
preoperative checklist with the patient, garbing him
properly for transport to surgery, placing him on a
stretcher, and taking him there. Normal procedure was to
garb a patient in a hospital gown, place him on a stretcher,
and cover him with two bath blankets. Normally a patient
was transported from his room to the operating room by
two persons.
On the morning of April 9, the four alleged discrimina-
tees were all assigned to the day shift in unit D. Siegmund
was head nurse, Plaza was assistant head nurse, Allard was
medication nurse, and Fjellman was a floor nurse assigned
to several patients, including Mr. Soltys.
Between 7:20 and 7:30 Allard visited Soltys' room briefly
to check on the effect of the medication previously given
him. According to Allard, he was alone in the room and
was awake, alert, and slightly talkative. She left after a
minute or less.
significant portions of Siegmund's testimony, I am persuaded that the
testimony of the discnminatees that they were unaware of the suspicion of
cancer before Mr. Soltys' operation was truthful. I conclude that Mrs.
Soltys' recollection of the portion of the conversation about her husband's
condition was not accurate. With respect to the plastic sheet, Mrs. Siegmund
initially testified that she did not believe she made the remark attributed to
her but that she may have said that she did not know how they were going to
transport him to surgery because he was on precautions. Later she testified
that she had told Mr. Soltys that she did not know how they were going to
get him to surgery and that they might have to put him in a plastic bag. She
testified that on April 8 she recounted her earlier conversation with Mr
Soltxs to Mrs. Soltys. I have credited Mrs. Soltys in this regard
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly thereafter Plaza went to Soltys' room and went
over the preoperative checklist with him.
5 According to
Plaza, Soltys was awake, alert, and responsive, and when
she asked him a checklist question about wearing nail
polish, he laughed. She testified that Soltys asked her what
all the questions were about, and she explained that it was
normal preoperative procedure. Siegmund, who entered
the room and stayed a minute or so while Plaza was going
over the checklist, testified that Soltys appeared very
apprehensive, was asking questions about the surgery, and
was not quite sure why he was going.
About 7:30 preparations were started for transporting
Mr. Soltys to surgery. Although it is not entirely clear who
was present in the room at the outset, it appears that Plaza
and Haagsma were there at the time Mr. Soltys was moved
to the stretcher in a hospital gown and covered with bath
blankets. Allard, Siegmund, and orderly Roland Brissette
also went to the room at about that time.
6 Before entering
the room, Allard had taken a disposable yellow precaution
gown and had hand-lettered on it the words "Yellow Bird
Express." Either Allard or Brissette put the gown over Mr.
Soltys. Fjellman entered the room after the gown was put
over him. Someone handed Brissette a brown plastic bag
which he placed over Mr. Soltys' feet. Siegmund told one
of the others that he needed a surgical mask, and someone
obtained one and placed it over his face. Someone also said
that they needed a hat for Mr. Soltys, and Fjellman got a
plastic shower cap which was then placed on Mr. Soltys.
While this was going on there was considerable laughing
and talking among the staff. According to Siegmund,
Allard, and Fjellman, Mr. Soltys was also laughing and
talking and exhibited no resistance to what was being done.
According to Haagsma, Soltys appeared to be quiet and
withdrawn while he was being garbed for transport.
7 None
of those in Mr. Soltys' room at this time wore precaution
gowns or masks.
When the garbing of Mr. Soltys was completed, Sieg-
mund told Allard to call Mrs. Soltys to tell her they were
taking her husband to surgery in case she wanted to see
him. Allard had Mrs. Soltys paged, and when she
responded Allard told her they were taking her husband to
surgery and asked if she wanted to come and see him
before he went.8 Although Mrs. Soltys had not planned to
see Mr. Soltys again before the surgery, she did not
communicate that fact and said she would come up.
I According to Plaza and Siegmund. newly hired nurse Haagsma was
present observing Plaza as part of her orientation. Haagsma testified that
she did not remember being present in Mr. Soltys' room until somewhat
later.
I Haagsma testified that she did not recall whether Brissette was there
but that there were about six others beside herselfl in the room aind that
Brissette could also have been there.
I Plaza was not questioned during the General Counsel's case-in-chief
about the garbing of Mr. Soltys on grounds that her testimony would be
cumulative. She was not questioned further about it after Haagsma testified
for Respondent and placed in issue Mr. Soltys' response to what was
happening.
8 There is a conflict over the words used by Allard and whether she asked
Mrs. Soltys if she wanted to kiss Mr Soltys goodbye. In a tape-recorded
interview of Mrs. Soltys by Hospital Administrator Gagnon the following
Monday. Mrs. Soltys did not state thalt Allard asked if she wanted to kiss her
husband goodbye. I do not credit that portion of Mrs. Soltys' testimony, but
credit her otherwise as to this conversation
After Allard spoke to Mrs. Soltys, Siegmund, Plaza,
Allard, Fjellman, and Brissette started to wheel Mr. Soltys'
stretcher through the hospital corridors toward the surgical
suite. At or about the time the group left unit D, Brissette
left the group and returned to unit D, Mrs. Soltys emerged
from an elevator and encountered the group, and Mrs.
Fleming, director of nursing, appeared in the corridor a
short distance away.9 Mrs. Soltys observed that there was a
lot of laughing and joking going on but that her husband
appeared drowsy and was not laughing. She also observed
how he was garbed. She wished her husband good luck,
said she would see him after the operation, and then left the
group.
The group with stretcher proceeded past Mrs. Fleming,
who said nothing, to the surgical suite, where they turned
Mr. Soltys over to Operating Room Supervisor Russell. In
response to a look from Russell, Siegmund asked Russell,
"What's the matter, can't you take a joke so early in the
morning?" and Russell replied, "Not this."'
0 Mr. Soltys
was quiet and had his eyes closed when he was wheeled
into the surgical suite.
After Mrs. Soltys left the corridor where she had seen her
husband, she went to the ladies' lounge and cried. At or
about 9:30 a.m. she spoke to Director of Nursing Fleming
about the possibility of news of her husband's operation.
At that time she told Fleming that she had never seen
anything like what she had seen that morning and that she
would never know why they had dressed her husband that
way. She told Fleming that she was upset but asked her not
to say or do anything at that time because she was very
upset over her husband's condition and did not want to be
an interfering wife, knowing how the nurses generally felt
about interfering families."
About 10 a.m. Mrs. Soltys was called to the operating
room by Mr. Soltys' doctor who told her what surgery had
been performed. While there she told Operating Room
Supervisor Russell that she was upset because of the way
her husband was dressed when he was transported to
surgery and said that she would appreciate it if Russell
would write a problem report but that otherwise she would
write it herself. Russell said she would write the report.1
2
Around 11:30 a.m. Mr. Soltys was released from the
recovery room, and Siegmund went to the recovery room
accompanied by Fjellman and Brissette to bring Mr. Soltys
back to his room on unit D. Normally when a patient is
returned to his room his chart, including a record of his
" Brissette and Fleming did not testify. Siegmund testified that Brissette
left the group at or about that point, and Mrs. Soltys testified that she did
not see him.
l' Russell so testified and Russell gave basically the same version in a
taped interview with Gagnon the following Monday. Siegmund in her initial
testimony indicated some uncertainty as to what she said, but became more
positive on rebuttal in denying Mrs. Russell's version. Her testimony was
left uncorroborated by the others who were present at the time. I have
credited Russell.
II Several days earlier Mrs. Soltys had written a problem report
concerning the nursing care given her husband by Fjeflman after Mr. Soltys
had complained about a lack of nursing attention. She gave the report to
Fleming but did not speak to Fjellman about it and asked Fleming to hold
the report until after her husband was discharged.
12 Later that afternoon Russell again told her that she would wnte the
report and asked whether Mrs. Soltys wanted it done immediately. Mrs.
Soltys replied that Russell could do it at her convenience.
860
HUBBARD REGIONAL HOSPITAL
anesthesia and recovery room notes, accompanies him.
Siegmund received the chart with the anesthesia record,
but recovery room nurse Wisniewski told her that the
recovery room notes would not be available until later and
that she would bring them over later. Wisniewski told
Siegmund that Mr. Soltys had been complaining about his
levin tube 3 but reported nothing else unusual about his
condition. Before leaving the recovery room Siegmund
discovered that the patient was soaked with urine and
required a change of linen. Recovery room personnel
started to make the change and Siegmund assisted without
donning a precaution gown. After Mr. Soltys was returned
to his room, Siegmund checked his levin tube and found
that it had a plastic cover over it which impaired its
functioning and which she removed.'4
After Mr. Soltys had been returned to unit D Siegmund
went to lunch. While Siegmund was sitting at a table with
others, Mrs. Soltys came through the cafeteria line, sat in a
vacant seat next to Siegmund, and conversed with her.
Mrs. Soltys told Siegmund that she was concerned about
her husband's condition. Siegmund observed that she had
recently seen a Mr. Bell who had been a patient under
similar circumstances, that he had done well, and that she
was sure that Mrs. Soltys' husband would do well also.
Their conversation then turned to Siegmund's aunt. During
their conversation Mrs. Soltys said nothing about the
manner in which Mr. Soltys was dressed that morning.
Siegmund and the others got up to leave before Mrs. Soltys
and Mrs. Soltys asked "What's the matter? Have I got B.O.
or something?" The others said that their lunch period was
up and they had to leave. i s
While Siegmund was at lunch, Mr. Soltys complained to
Plaza who was attending him of incisional pain. After
1l A levin tube is a rubber tube which is inserted through a patient's
nasal passage and passes into his gastrointestinal tract for drainage.
14 Although the evidence is in dispute as to whether there was such a cap
on the tube. I find that Siegmund's testimony in this regard is corroborated
by a conversation she had with Russell when she left the lunchrxoom about
half an hour later. Although Russell's version differed from Siegmund's.
even under Russell's version. Siegmund complained to her about Mr. Soltys'
levin tube, commented that it came with a new kind of cap on it. and asked
Russell if she knew anything about it. There was no apparent occasion fbr
Siegmund to ask about the cap unless it was on Mr. Soltys' levin tube.
1s Siegmund so testified and was corroborated in part by Nurses Dean
and Healy who were also at the table. Mrs. Sollys denied that there was any
discussion of her husband or Mr. Bell at the table, placing that discussion on
the previous day as indicated above. She had no recollection, however. of
what was said while at lunch. I have credited Mrs. Siegmund.
i6 The evidence is in sharp dispute as to what Wisniewski told Siegmund.
what actually happened in the recovery room. and what the recovery room
notes actually said According to Siegmund. Wisniewski told her the notes
were late because Mr. Soltys had an acute period of respirator) distress in
the recovery room and they had to ventilate him. She also testified that she
recalled reading in the notes the words "respiratory distress." Wisniewski
testified that the notes were delayed because she had to copy the original
bedside notes which she had taken because Mr. Soltys was still on
precautions. She denied telling Siegmund that Soltys had suffered respira-
tory distress but conceded that she may have told Siegmund they had some
trouble when Siegmund read about the use of the ambubag. She identified
the notes quoted above as the only recovery room notes written and denied
that any version existed containing the words respirator)y distress. She also
testified that she did not see the ambubag in use but placed it on Mr, Soltys
for Anethesiologist Maramag and had assumed she used it while Wisniewski
was otherwise occupied. Dr. Maramag testified that Mr. Sollys did not
suffer respiratory distress and that the difficulty stemmed from his holding
his breath because of the levin tube. She also testified that she did not use
the ambubag. Dr Maramag also testified that if Mr. Soltys had suffered
checking with the recovery room and determining that he
had not received medication there, Plaza administered
pain-relieving medication to Mr. Soltys as prescribed in his
postoperative orders.
About I p.m. Wisniewski brought the recovery room
notes to Mrs. Siegmund. Siegmund read them while
Wisniewski was there. In them the entry for 10:30 a.m.
read: "Responding - very restless and apprehensive c/o
difficulty breathing. Suctioned for mucus. Extremely
apprehensive. Respirations becoming shallow - Dr.
Maramag in attendance. Color dusky - semiresponsive,
pulse 88. Air way inserted. Ventilated - Ambubag - p 96
- Dr. Maramag in attendance. Color improving -
Breathing improved B.P. 150/110 - pulse 90."
When Siegmund read these notes, she questioned
Wisniewski about them, and Wisniewski said that they had
a little trouble but everything seemed all right.i6
Sometime after receiving the recovery room notes
Siegmund, Plaza, and Allard discussed the fact that the
notes seemed to indicate that Mr. Soltys had suffered from
respiratory distress t7 and that they should have been told
about it before medicating Mr. Soltys because of possible
adverse effects of the medication on his respiration.
However, they did nothing further about it that afternoon
except to monitor Mr. Soltys' vital signs.t'
Around 2:45 p.m. Mrs. Soltys gave a patient report to
Associate Director of Nursing Canty who worked on the 3
to II p.m. shift. Mrs. Soltys told Canty about the way her
husband was dressed for transport to the operating room
and asked her to tell the nurses on her shift to be sure that
Mr. Soltys never learned how he was dressed. Canty later
told the nurses on her shift about the incident and
conveyed the instruction to them.
respiratory distress he would not have been returned to his room that
morning but would have been kept longer in the recovers room and then
sent to the intensive care unit before being returned to his room. Her
signature appears on the recovery room notes, and she testified that she
signed only one set of notes. Although several witnesses testified in rebuttal
that they had seen a different set of recovery room notes for Mr. Soltys, they
were not consistent with one another in their testimony and they testified to
other changes in the notes for which no apparent reason would appear. I am
satisfied that the notes placed in evidence were the same as those which were
delivered to Siegmund by Wisniewski April 9. I credit Dr. Maramag and
Wisniewski in this respect and also as to what actually happened in the
recovery room, particularly in light of the relatively fast return of Mr. Soltys
to his room. I therefore also credit Wisniewski as to what she told Siegmund
when she delivered the notes to her.
'i Dr. Maramag testified that what was written in the notes would
indicate that the patient had problems breathing and if read by her would
cause her to seek further information.
'* Siegmund, Plaza, and Allard testified that they reacted with alarm and
discussed what they should do about it They testified that they decided not
to report it to Fleming immediately because complaints were supposed to go
through their immediate supervisor who on that day was Mrs. Soltys and
they did not want to cause her further concern. The) testified that they
therefore decided to wait to report what they considered inadequate
treatment of Mr. Soltys by recovery room personnel until the following
Monday morning when a different immediate supervisor would be on duty.
This testimony is in conflict with an affidavit given by Allard which Plaza
and Siegmund adopted as their own. The asserted reason for not going to
Fleming immediately is of dubious strength in view of the asserted
importance of the problem and the failure of the nurses even to check with
Dr. Maramag or anyone else to gain reassurance that there was no problem
which required immediate attention. While I have credited Siegmund.
Allard, and Plaza to the limited extent indicated. I do not credit them as to
the degree of their alarm or their alleged discussion at that time about
making a complaint to Fleming.
861
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That evening at 6:30 when Mrs. Soltys came to visit her
husband she met Richard Garber, an administrative
resident at the hospital, in the lobby. Garber asked her if
what he heard had happened to her husband that day was
true, and she said that it was true and that she was very
upset about it. Garber ascertained that she had not told
Gagnon about it. Garber then called Gagnon and told him
that some kind of a dirty trick had been played on Mrs.
Soltys and her husband in delivering Mr. Soltys to surgery
which had upset Mrs. Soltys. Garber partially described the
incident, and Gagnon said he would look into it on the
following Monday morning. Garber later told Mrs. Soltys
what Gagnon had said.
On Sunday, April 11, Mrs. Soltys spoke with Intensive
Care Supervisor Guilbault concerning the incident and
later that day he recounted part of that conversation to
nurse Marsha Dean. He told Dean that Mrs. Soltys had
been crying and was upset about the "yellow bird express"
legend on the gown and the fact that the nurses had called
her to come to see Mr. Soltys and the way he was
dressed. '
3. The suspension of Siegmund, Allard, and Plaza
on April 12
Siegmund did not work on Saturday or Sunday, April 10
and I . Early Monday morning, April 12, she asked to see
Director of Nursing Fleming with another supervisor
present because she wanted to file a complaint. Siegmund
was called to Fleming's office between 7:30 and 8 a.m. and,
with Associate Director of Nursing Tackson present, told
Fleming that the recovery room had reported Mr. Soltys
ready to return to his room when he was saturated with
urine and there were no recovery room notes available. She
also told Fleming that the unit D nurses were given no
report on his respiratory problem and had medicated the
patient without knowing about it, possibly endangering his
health and life. Fleming agreed that it was a serious
complaint and after checking the operating room schedule
for the previous Friday said that there was no need for
what happened because the schedule had been light.
Fleming told Siegmund she would check up on the
complaint immediately and would get back to her. During
this conversation there was no mention made by anyone of
the manner in which Mr. Soltys had been brought to
surgery on Friday morning.2 0
Around 8 a.m. Mrs. Soltys went to Mrs. Fleming again
and told her that she was really upset and planned to speak
to Gagnon about the "yellow bird" incident that day.
Fleming said she would call Siegmund down and ask why
Mr. Soltys had been treated as he had. Fleming did not
19 Guilbault so testified. Dean testified that such a conversation did not
occur until 2 weeks later on April 25 and that she did not learn about the
incident until Monday, April 12. I have credited Guilbault. Dean and
Siegmund were neighbors and close friends. According to Siegmund and
Dean, Siegmund spoke to Dean on Friday afternoon about Mr. Soltys'
recovery room problems but said nothing about the "yellow bird" incident
until Monday morning. Under all the circumstances, including my findings
as to the recovery room problems and the timing of the determination to
report them, I do not credit Dean's denial of knowledge of the incident as of
April I I when Guilbault testified he talked to her about it.
20 Siegmund so testified. Fleming was not called as a witness, and
although Tackson testified she was not questioned about this conversation.
mention that she had just spoken to Siegmund that
morning about Siegmund's complaints about the recovery
room. Fleming then called Siegmund back to her office and
told her she was "absolutely livid" about the way they had
brought Soltys to surgery on Friday. Siegmund asked
Fleming what she meant, and Fleming replied that "you
don't fool with people like Ed Soltys." Siegmund asked
how she would know you couldn't fool with him, and
Fleming said that she was just so upset that she didn't
know what was going to happen. Siegmund asked Fleming
what she was trying to tell her because 45 minutes earlier
Siegmund had been complaining to her with reference to
the same patient and Fleming said nothing. Siegmund said
that it seemed strange to her that suddenly they were
talking about something different. Siegmund asked if the
incident involving the transport to the operating room was
more important than what she had talked to Mrs. Fleming
about earlier, and Fleming said that they were not
discussing that then or that that was not the issue.
That morning Gagnon started to investigate the incident.
He first looked into the status of Mr. Soltys and his illness,
checking into the admitting diagnosis and any later change
in it. He learned that no conclusions had yet been reached
as a result of the exploratory surgery. At around 9 a.m.
Mrs. Soltys went to see Gagnon who told her that he
wanted to talk to her but wanted to speak to a few others
first and that he would call her later.2t
Gagnon then spoke to Fleming22 reviewing her knowl-
edge of the case and what she had seen. Fleming told him
that she was coming from the surgical suite to the elevator
when she heard a lot of boisterous noise and laughing and
saw four nurses transporting Mr. Soltys. She told him that
she said something like "what's going on here" as Mr.
Soltys was wheeled by her into the surgical suite and she
saw some of the things that were on him. Gagnon asked
Fleming who was involved, and she said she could only
remember Siegmund, Al!ard, and Plaza.
Gagnon next spoke to Mrs. Russell who gave a more
detailed description of how Mr. Soltys was garbed and told
him Siegmund's comment to her when the nurses brought
Mr. Soltys into the surgical suite. Russell was also unable
to identify Fjellman, the fourth nurse who was in the
group. Around noon, Gagnon spoke to Mrs. Soltys, who
told him how she had been paged by Allard, and as a result
went up to see her husband although she had not planned
to. She described to Gagnon what she saw in the corridor
and told him that she was stunned but she tried to be big
about it and wished Mr. Soltys good luck and left. She told
him there were four or five nurses accompanying Mr.
Soltys but could only name Siegmund, Allard, and Plaza.
Allard testified that later that day Siegmund told her that she had also
complained to Fleming that Mr. Soltys' levin tube was not working, but
Siegmund did not mention voicing that complaint in her testimony.
21 Mrs. Soltys so testified. Gagnon recalled speaking to her only once.
22 Gagnon placed this conversation about 8:30 or 9 in the morning.
Gagnon taped a portion of his conversation with Fleming and later
conversations with Russell and Mrs. Soltys. Although Gagnon testified that
he did not converse with Russell or Mrs. Soltys before recording their
statements and that he recorded their entire statements, there is some
indication that the taping was interrupted, and Russell testified to
statements which do not appear on the tape.
862
HUBBARD REGIONAL HOSPITAL
After speaking to Mrs. Soltys, Gagnon spoke to Director
of In-Service Training Zagami to check on proper nursing
procedure. Zagami told him that what the nurses had done
was improper procedure and that she felt her work was lost
because she was a professional person and she did not
think any of the nursing staff would stoop so low.
Gagnon next spoke to Dr. Chasse, Mr. Soltys' attending
physician, described the incident to him, and asked him his
opinion. Dr. Chasse commented that professionals just
didn't do that. Gagnon questioned Dr. Chasse about the
preoperative medication to establish whether or not what
was done was contrary to the purpose of the medication,
and Dr. Chasse indicated that it was.
That afternoon Gagnon called Siegmund, Allard, and
Plaza to his office shortly before 3 p.m. and spoke to them
about the incident with Rachel Tkacik, associate director
of nursing, present. 23 Gagnon told the nurses what he had
heard about the manner in which Mr. Soltys was taken to
surgery. He said that they had humiliated the patient and
that he was concerned about Mrs. Soltys who had four
children, was worried about her husband going for a cancer
operation, and was upset by what they had done. Gagnon
said that he had spent many years building up the hospital,
that they had ruined the image of the hospital, and that
they had destroyed his deep belief that registered nurses
were tops. Gagnon said he was very upset about the matter,
was emotional about it, and did not want to take action
while he was emotional. Gagnon said he saw no reason for
what had been done and that they had acted unprofession-
ally.2 4 Siegmund told Gagnon that she was sorry if he had
interpreted the incident as something designed to humiliate
the patient and said that they had taken a very apprehen-
sive patient and tried to cheer him up on his way to
surgery.25 Allard said that she was responsible for the
writing on the precaution gown and that she did not want
the others to be blamed for that. Gagnon said they were
being suspended pending a further investigation, with the
possibility of termination, and that there was possibly a
fourth nurse involved. 26 Gagnon then dismissed them.27
Gagnon did not ask the nurses their version of what had
happened, why they had done it, or who else was involved.
21 Gagnon did not tape record this conversation as he had his earlier
conversations with Fleming, Russell, and Mrs. Soltys. He testified that the
reason was that he wanted the nurses to speak freely and did not want them
to feel they were being taped and should he guarded. As appears below,
however, he did not seek to elicit any information from them.
24 My findings as to this conversation are based on a composite of the
testimony of Siegmund. Allard. Plaza., Gagnon, and Tkacik to the extent
that they were in agreement. Gagnon testified that he said nothing at this
time about humiliating Mr. Soltys, and Tkacik testified that she did not
recall him speaking about it. However, as Gagnon conceded that
humiliation of Mr. Soltys was a factor he considered in ultimately
discharging the nurses. I find that he mentioned it at this time as the nurses
testified.
25 Siegmund so testified and Allard testified similarly. Gagnon denied
that Siegmund said this and testified that she said merely that it was a joke
done to humor Mr. Soltys. Tkacik testified that Siegmund said that Mr.
Soltys was "super apprehensive" and that they thought what they did would
quiet him down. I have credited Siegmund in the light of Tkacik's testimony
which is closer to Siegmund's version than Gagnon's.
4. The nurses' petition and demonstration on
April 13
About 11:30 a.m. on Tuesday, April 13, a number of
nurses gathered outside of Gagnon's office, and Dean, who
had been president of CNA, acted as their spokesperson.
Dean told Gagnon that they were there to ask that the
three suspended nurses be reinstated and that they were
presenting him with a petition signed by a number of
employees stating their belief that the suspensions were
caused by the nurses' union activities. Gagnon took the
petition and said he was busy at a meeting. Someone
suggested that he could at least read the petition and he
did. He then said that they had had their say and could go
home. After a further question, Gagnon said he was
making a thorough investigation and would speak individ-
ually to anyone who had further input into the matter.
Dean said that she did, and Gagnon offered to meet her at
I p.m. in his office.2 8
Fifteen minutes to half an hour before the gathering in
front of Gagnon's office, Associate Director of Nursing
Tackson went to the intensive care unit and called head
nurse Healy aside. Tackson told her that neither she nor
any of the others working in intensive care were to leave
the floor at 11:30 because she knew there was going to be a
meeting downstairs with Gagnon. Healy asked what
meeting and Tackson told her that she knew what meeting
Tackson was talking about. Healy then said that she did.
Tackson said nothing about assuring patient care in this
conversation. The meeting was scheduled during the lunch
period for Healy and one of the others in the unit.2 9 Both
attended.
On the same morning an article appeared in a local
newspaper which reviewed the efforts of the nurses to
organize over the past year and stated that on the previous
day two registered nurses, Siegmund and Allard, both
staunch unionites, and licensed practical nurse Plaza had
been temporarily suspended pending full investigation with
permanent termination possible. The article asserted that
all had or would challenge what they called trumped up
charges designed to weed out unionism at the hospital and
that the hospital had not released any news of the
confrontation to the press. The article also disclosed the
plan of the nurses to approach Gagnon, to demand
reinstatement of the suspended nurses, and to hold a
26 According to Siegmund and Allard. Gagnon said he thought the
fourth person was Fjellman but that he was not sure. Gagnon and Tkacik
testified that her name was not mentioned, and Gagnon testified that he did
not learn her identity until 2 days later. There is no apparent reason for
Gagnon to have withheld action against Fjellman on this day if he knew her
identity. I credit Gagnon.
27 Gagnon testified that after he told the nurses they were suspended
they sat there and said nothing more, so he dismissed them. Siegmund and
Allard testified that after she and Allard spoke, Gagnon said there was
nothing more to discuss and ushered them out of the room. Tkaclk's
testimony casts no light on how the meeting ended. As Gagnon concededly
asked the nurses for no information and had determined to suspend them
before calling them in. I credit the nurses that Gagnon terminated the
meeting after he said what he had planned to say.
2s Dean did not return at that time to meet him, but spoke to him the
next day.
29 Healy testified without contradiction as to this conversation. There is
no evidence of any unusual circumstance requiring any nurse to change or
forego her lunch period.
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting to determine what steps the nurses would take if
reinstatement were denied. 30
During that day Gagnon gave Fleming a written
reprimand but did not discuss it with her at the time. The
reprimand stated that the incident which had occurred on
April 9 did much to destroy the professionalism they had
worked hard to establish and that it was Gagnon's opinion
that Fleming should have taken strong disciplinary action
immediately when she came on the scene of this incident.
Gagnon stated that as a consequence Mrs. Fleming was
being severely reprimanded for not taking the proper
action in this mattersi
5. The discharge of the nurses on April 14
On Wednesday morning, April 14, Russell identified
Fjellman to Tackson as the fourth nurse involved in the
incident, and Gagnon learned her identity from Fleming.
Between 8 and 9 a.m. Gagnon called Fjellman into his
office with Tackson present. Gagnon told Fjellman that he
had learned she was involved in the "yellow bird" incident
and that he wanted to give her a chance to answer
questions or say what she wanted about it. Fjellman told
him that on Friday Mr. Soltys was assigned to her as one of
her patients for the day and that after she had taken care of
her other patients she went to Mr. Soltys' room. She said
that she heard laughter and giggling as she approached his
room and found a lot of people there.3 2 Fjellman said that
when she entered the room she found that Mr. Soltys had a
mask and a yellow gown on and that everyone there
seemed to know what was going on. Fjellman told him that
although her initial reaction was to ask if they were really
going to do that, as head nurse Siegmund was there and as
she was respected, Fjellman didn't think anything was
wrong and she did not want to counteract anything that the
head nurse was doing. Fjellman told Gagnon that someone
asked for a cap which Fjellman obtained and Brissette
placed the plastic bag over Mr. Soltys' feet.33
Fjellman told Gagnon that she participated in the
transport of the patient and mentioned that Brissette had
also helped. Fjellman told Gagnon that on the way to
surgery she said to herself "My God, maybe we shouldn't
be doing this" but continued. She told Gagnon that the
reason all four nurses accompanied the stretcher was that
they wanted to see how Mrs. Soltys was going to react
:"' Gagnon testified that he first saw the article that noon after the nurses
had visited his office. He testified that he did not know who had put the
article in the newspaper but he assumed that one or all of the suspended
nurses were responsible for it.
31 Gagnon testified that he issued the letter of repnmand both because of
her failure to take immediate action and her failure to display what he
regarded as sufficient sensitivity to the incident when he interviewed her on
Monday morning. He testified that when Fleming later told him why she
had not taken more positive action he understood the circumstances better.
32 Gagnon, Tackson. and Fjellman testified to this interview. Fjellman
could not remember much of what she said but contradicted Gagnon in
several respects. According to Gagnon, Fjellman told him that before going
to Mr. Soltys' room she heard that something was going on there and that it
was generally known around the floor that something was going on there.
Tackson testified only that Fjellman said she heard noise and laughter as
she approached the room. Fjellman denied any advance knowledge that
anything was happening in the room. Gagnon's notes taken at the time state
"everyone seemed to know what was going on." Despite his contrary
testimony, in the light of Tackson's testimony I find that the notes referred
to everyone in the room and not everyone on the floor. I do not credit
Gagnon in this respect.
when she saw her husband. 34 Fjellman told Gagnon that,
although she never remembered seeing a patient brought to
surgery in that manner there or in any other hospital, at
this hospital the nurses were much closer to their patients,
and she felt that what the nurses did was permissible
because of that relationship. Fjellman denied awareness of
any possibility that cancer was involved in Mr. Soltys'
operation and said that she did not think anything was
done to hurt Mr. Soltys. Fjellman told Gagnon that it was
her impression that Soltys was dressed as he was in order to
cheer him up. Gagnon asked her if she ever joked or kidded
around with Mr. Soltys, and she replied that she did not
and that he was a rather serious person. Gagnon asked her
if the personnel in the room were masked or gowned under
proper precautionary procedure, and Fjellman said they
were not. Gagnon asked if she could tell him who else was
in the room, and she named the three suspended nurses
and Brissette. 35 After Fjellman finished answering Gag-
non's questions, she left his office.
Fjellman went from Gagnon's office to the employees'
lounge where she saw Brissette. She told him that she had
just been down to talk to Gagnon, and almost immediately
Brissette was called to Gagnon's office.
Gagnon questioned Brissette about the incident and told
him that his name had been mentioned as a participant.
Brissette strenuously denied any involvement whatsoever
in the incident. He said he saw the patient being
transported to surgery but did not think it was right and
went back to the nursing station instead of assisting as he
usually did. Brissette told Gagnon he saw the precaution
gown being prepared, asked what Allard was going to do
with it, and said, "You've got to be kidding" when she told
him its purpose.3
When Brissette returned from Gagnon's office, he told
Fjellman that he denied everything and said that he was
not in the Union and had nothing to do with Mr. Soltys on
the previous Friday.
Shortly thereafter, Fjellman was again called down to
Gagnon's office, where Fleming told her that Gagnon was
not available and began to ask her very specific questions
about the incident. In connection with one of her answers
Fleming asked Fjellman to be very specific because her
answer might have to hold up in court or words to that
effect. After that Fjellman became frightened and vague in
her responses. Fleming then sent her back to her station.
:ii Gagnon and Tackson testified that Fjellman told them that Mr. Soltys
was completely garbed when she entered the room. Fjellman testified as set
forth in the findings. There was no reason for Fjellman to testify that she
disclosed her implication in dressing Mr. Soltys which was otherwise not
established before her discharge unless her version was true. I have credited
her in this regard.
i4 Gagnon so testified. Although Tackson did not corroborate this.
Gagnon's notes are corroborative, and Fjellman did not contradict him in
this regard.
:1 Gagnon and Tackson testified that Fjellman named only Siegmund
and Brissette. Fjellman testified that she also named Allard. Plaza, and
Haagsma. While I am inclined to believe that Fjellman mentioned Allard
and Plaza who were suspended at that time, I credit the testimony of
Gagnon and Tackson that Fjellman did not name Haagsma as there is no
apparent reason why Gagnon would not have interviewed her as he did
Brissette after speaking with Fjellman if Fjellman had named her.
36 The findings as to what Brissette told Gagnon are based on Gagnon's
testimony. Brissette was not called as a witness by either side.
864
HUBBARD REGIONAL HOSPITAL
About 10 or 10:30 that morning Dean was in unit D and
met Gagnon leaving Mr. Soltys' room.37 Dean told him
that she would like to talk to him about the incident on the
previous Friday. They went into the examining room where
Dean made an emotional plea on behalf of the suspended
nurses and asked him to reinstate them. 3 8 She told him that
on the day of the incident Mrs. Soltys sat next to Siegmund
at lunch and seemed very friendly but concerned about her
husband. She told Gagnon that Mrs. Soltys and Siegmund
discussed Mr. Soltys' condition and that Siegmund sought
to reassure Mrs. Soltys by referring to former patient Bell.
Dean told Gagnon that it didn't make sense that Mrs.
Soltys would sit with Siegmund at lunch the same day if
she was so upset with her. Dean also told Gagnon that later
the same afternoon Siegmund had come to Dean's house
and mentioned that she was very upset because of the
recovery room incident 39 and said that she had not gone to
her supervisor, Mrs. Soltys, whom she felt had enough to
worry about. Dean said that if someone was out to
humiliate another in the morning, it would not be logical
for him to be upset about the other's feelings in the
afternoon. Dean said she had known the suspended nurses
for a long time and that they would not be capable of doing
anything to harm a patient and would not humiliate a
patient intentionally. Gagnon listened to Dean and then
said "Well, now that the Press is involved -," and Dean
told him not to blame the suspended nurses because they
had nothing to do with it and that she was the one who
talked to the press. Gagnon said that he was trying to
gather all the facts, that he had to make a decision by noon,
and that he would have to live with the decision. Gagnon
also commented that other people in unit D would not
stand up for the suspended nurses. Dean said that people
were frightened and were under a lot of stress. Toward the
end of the conversation Dean started to cry and told
Gagnon that she was under pressure and could not stand it.
After Gagnon spoke with Dean, he went back to Mr.
Soltys' room and spoke to him. Mr. Soltys appeared to be
very groggy and sick. Gagnon told him he was sorry about
his condition and his problem and talked to him a bit
about personal experiences in surgery. Gagnon then asked
if he recalled anything with respect to what happened when
he went to surgery and if he was upset or anything. Mr.
Soltys said, "I heard about what happened. I suppose 'they'
were having fun, Oh well." Gagnon talked with him more
about his condition and left.
Shortly thereafter, Gagnon decided to discharge Sieg-
mund, Allard, Plaza, and Fjellman, after reviewing their
personnel files and consulting with counsel.
About 2:30 that afternoon Fjellman was called to
Fleming's office, and Fleming handed her a letter which
notified her that she was discharged. Fleming told her that
she did not know what was in the letter but that if she had
any questions Fleming would try to answer them. When
:.? Gagnon had gone to speak to Mr. Soltys but found that a nurse was
assisting him and he left temporanly.
:3 Dean testified twice as to this conversation. indicating the second time
that in her initial testimony she had confused the incidents she spoke to
Gagnon about with what she said to him about them. These findings are
based on her second version of the conversation and Gagnon's testimony.
While Gagnon testified that he could not recall some of the statements Dean
testified to, he did not deny that she made them.
Fjellman read the letter she became very upset. and
Fleming asked if she wanted to see Gagnon. After a wait
Fjellman saw him in his office. Fjellman told him that she
felt that the termination and everything connected with it
was very unfair. Gagnon went over the discharge letter and
told her that he had made his investigation and that the
decision was final. Fjellman asked what kind of a reference
he would give her if she applied for a job elsewhere.
Gagnon told her that he did not intend "to smear your
name in the mud." It was a short conversation, and
Gagnon got up and she left.
Identical letters were mailed the same day to Siegmund,
Allard. and Plaza. In the letters Gagnon stated that he had
completed his investigation, had spoken with everyone
involved, and had offered anyone who wished to provide
him with any input the opportunity to do so. He concluded
"I have received no explanation or reasons to conclude
that the conduct in question was anything but totally
unprofessional and unjustifiable. Accordingly I am inform-
ing you that your services at this hospital are terminated
effective this date."
Gagnon testified that his reasons for discharging the
nurses were that they abused the dignity of a patient; that
they interfered in private affairs resulting in the humiliation
of an employee; that what they had done was contrary to
proper nursing practice; that despite ample time they had
not apologized, made amends, or taken other action to
show that they understood that what they had done was
wrong; and that he was concerned that what the nurses had
done reflected adversely on the hospital.
In explaining why he believed the four nurses wanted to
humiliate Mrs. Soltys, Gagnon testified that he felt that it
was an attempt to humiliate a member of management and
that "I've been in industry many years and I'm familiar
with union organizing activities and it's common attempt
to provoke members of management into certain uncom-
promising or uncomfortable situations and this is one of
the things we've been trying to avoid. Throughout the
campaign and I think this was an attempt - to do this."40
Siegmund had worked at the hospital continuously from
1966 until her discharge. Before 1966 she had worked at the
hospital on several other occasions and had a total of 15
years service. She had never received any oral or written
complaints or warnings about her work and had never
previously been cited for unprofessional conduct.
Allard had worked at the hospital for approximately 6
years before her termination and had worked there
previously for a short period of time. She had served in
several capacities, including head nurse. During the winter
before her discharge she received a written warning for
wearing needles in her cap instead of cap pins. She received
no other written warnings. Fleming had reprimanded
Allard orally on one occasion because a doctor had
complained that she had hung up a telephone on him very
.19 Dean testified that she referred to the "recovery room incident" in
those terms and did not give any further indication of what she was talking
about. Gagnon did not ask her what she was referring to.
'0 Mrs. Soltys testified similarly that she believed Siegmund. whom she
had known many years, wanted to make fools of her and her husband
"because I was part of management." and "we had union activity going on
-- and Mrs. Siegmund's attitude toward management had changed."
865
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abruptly. She also received a verbal reprimand for singing
to patients about a week before her discharge.
Plaza worked at the hospital for approximately 3-1/2
years before her discharge. During that period of time she
never received any complaints or written or oral warnings
about her work.
Fjellman was employed at the hospital for I year. She
had worked in hospitals since 1968, first as a nurses aide.
About a week before her discharge, Soltys had filed a
problem report with respect to Fjellman's care of her
husband, but it was being held by Fleming pending Mr.
Soltys' discharge as a patient. Fjellman was unaware of
that complaint and received no others.
6. The attempt of the terminated nurses to utilize
the hospital grievance procedure
Respondent provided a grievance procedure for employ-
ees which was described in its Personnel Policies Hand-
book. In pertinent part, it stated:
2. If you have a grievance with regard to your work or
your association with the hospital, you are urged to
utilize the hospital's grievance procedure with the full
understanding that you will be fully protected from
discrimination of any kind and that the hospital will
make every effort to arrive at a satisfactory solution.
The procedure provided several steps for processing a
grievance, progressing from the immediate supervisor
through the executive officer in charge of personnel and the
administrator. It provided finally:
8. If you are not satisfied with the decision rendered
by the Administrator concerning your grievance, then
you should present it, in writing, to the President of the
Board of Directors of the hospital. The Board's
decision concerning your grievance will be final.
When Siegmund received the discharge letter she called
Fleming and said she wanted to institute a grievance, and
Fleming subsequently told her that as far as the hospital
was concerned the steps through the Administrator level
had already been carried out and the nurses' next step
would be to write a letter to the board of directors. On
April 19, the fobur employees wrote a joint letter to the
president of the board of directors. 4i In it they stated that
they believed their discharges were a direct result of the
union campaign at the hospital and that if it were not for
the union campaign they would still be employed by the
hospital. They set forth in some detail their version of the
facts relating to the "yellow bird" incident, explaining that
what they had done was intended as a sincere effort to put
the patient at ease.
Each received the following reply from the president of
the board dated April 23:
This is to acknowledge the receipt of a letter dated
April 19, 1976, addressed to me, unsigned, but bearing
your typewritten name. I'm replying to you in the event
41 The handbook provided that no written communication would be
acted upon unless signed. The nurses typed their names on the grievance but
did place their signatures on it. However, the grievance was not rejected for
lack of signatures.
that the unsigned letter reflects your position relative to
your recent termination from Hubbard Regional
Hospital.
Your letter alleges that your termination resulted from
a campaign by nurses to win representation by District
1199, MASS., N.U.H.H.C.E. - AFL-CIO. It is my
understanding that charges raising this claim have been
filed with the National Labor Relations Board, which,
in my view, is now the appropriate forum to resolve
them.
Shortly before this letter was written, on April 20 an
article appeared in the Worcester Telegram which quoted
union leaflets as stating that the nurses were fired because
they were "active supporters of the union drive," and
stated further that about 50 nurses had voted to file an
unfair labor practice charge against the hospital with the
NLRB which would be filed later that week. A charge was
filed on April 23.
Gagnon, who participated in deliberations over the
response to the nurses' grivance, testified that "since this
was going to be filed as an unfair labor practice, [the
president] felt that whatever action the [hospital] board
took would be overruled and superseded by the NLRB,"
and the nurses' grievance was therefore not considered.
Following receipt of the nurses' grievance which referred
to Mr. Soltys' problems in the recovery room, Gagnon
showed it to Operating Room Supervisor Russell and Dr.
Maramag and asked Russell for a detailed report about
what took place in the recovery room. Both Gagnon and
Russell testified that they first learned about the nurses'
complaint against the recovery room from the April 19
letter. Russell later prepared a report which she gave to
Gagnon.
After receiving the nurses' April 19 letter, Gagnon again
spoke to Brissette about his irnvolvement in the "yellow
bird" incident. Brissette again denied any involvement and
asserted that the nurses were trying to get back at him
because he had taken off his union button.
7. Concluding findings
While the burden of proof in this case in on the General
Counsel to establish that the discharge and refusal to
reinstate the four nurses was caused by their union
activities, it is not necessary for the General Counsel to
establish that the union activities were the sole cause of the
action against them. Rather, it is sufficient for the General
Counsel to establish that the action taken against the
nurses was at least partially caused by their union
activities.4 2
It is undisputed that Respondent had knowledge that all
four dischargees were supporting the Union. Each wore a
union button, and notations to that effect had been placed
in their personnel files which Gagnon reviewed shortly
before deciding to discharge them. In addition, Mrs. Soltys
had noted on an evaluation of Siegmund written about a
year before her discharge, Mrs. Soltys believed that the
42 The Youngstown Osteopathic Hospital Association, 224 NLRB 574
( 1976); UnitedAircraft Corporation v. N L. R.B., 440 F.2d 85 (C.A. 2, 1971).
866
HUBBARD REGIONAL HOSPITAL
beginning of union activity had brought about a change in
Siegmund's attitude. Thus Respondent was not only aware
of the dischargees' union activities but also was sensitive to
them. The evidence also establishes Respondent's hostility
to the Union. As found below, commencing sometime after
the four discharges, two of Respondent's associate direc-
tors of nursing unlawfully sought to induce employees to
abandon support for the Union. During the period between
the suspensions and the discharges Associate Director of
Nursing Tackson sought to interfere with attendance of
intensive care unit nurses at a lunchtime gathering outside
Gagnon's office, and when the discharged nurses sought to
grieve their discharges, the grievances were rejected
because Respondent believed they were going to file
charges with the Board. There is thus sufficient evidence of
knowledge and hostility to require careful examination of
the circumstances surrounding the discharges.
Turning to the incident which led to the suspensions and
discharges, I find that the evidence does support Respon-
dent's contention that the nurses' conduct was unprofes-
sional and inconsistent with the needs of the patient.
Although the dischargees testified they dressed Mr. Soltys
in irregular garb to humor him and overcome extreme
preoperative apprehensiveness, I cannot credit that testi-
mony.43 Contrary to their testimony that Mr. Soltys
remained alert, talkative, and extremely apprehensive after
he was medicated and joined in the laughter over his
preparation, the observations of Nurse Haagsma, Mrs.
Soltys, and Operating Room Supervisor Russell were that
he was quiet and appeared drowsy and withdrawn, and
Anesthesiologist Maramag noted on her record that the
effect of the medication was satisfactory. No notation was
made on the nursing report to indicate extreme apprehensi-
veness, and when Mr. Soltys was delivered to the operating
room no one said anything to Russell or Dr. Maramag
about his apprehensiveness. In addition, despite testimony
of Siegmund, Allard, and Plaza as to their intended
purpose, there is a conspicuous lack of testimony about
how the decision was reached to garb Mr. Soltys. Insofar as
appears, on the basis of separate brief visits to Mr. Soltys'
room, Allard lettered the yellow gown and Siegmund
returned to the room to join in garbing Mr. Soltys without
any prior discussion or consultation, I cannot maneuver
believe that Siegmund, Allard, and Plaza each individually
reached the same conclusion and independently joined in
the unusual action taken to garb Mr. Soltys without prior
discussion.
The evidence also supports the inference that the garbing
of Mr. Soltys was intended as a joke. The idea of some
unusual garbing of Mr. Soltys appears to have been on
Mrs. Siegmund's mind on the previous day when she told
Mrs. Soltys they might have to wrap him in a plastic sheet.
The lettering on the gown seems clearly intended for the
43 An alternative explanation suggested by some of the evidence was that
the garb was dictated by the fact that Mr. Soltys was on precautions, and the
nurses were unsure of the proper way to transport a patient on precautions
to the operating room. That explanation might have supported a decision to
place a surgical mask on Mr. Soltys if he were otherwise garbed in the
ordinary fashion, but it cannot explain the additional items placed on him.
That the nurses were not overly concerned about observing the precautions
is shown by their own failure to don yellow gowns and masks while
preparing Mr. Soltys for transport, Mrs. Siegmund's failure to do so when
helping to change Mr. Soltys in the recovery room after the operation, Mrs.
eyes of others than Mr. Soltys who was not in a position to
see it. Fjellman's statement to Gagnon on the following
Wednesday that four nurses had accompanied Mr. Soltys
to the operating room because they wanted to see Mrs.
Soltys' reaction is strong evidence that what was done was
directed at her as much as at the patient. 44 That the
garbing of Mr. Soltys was intended as a joke rather than as
a therapeutic measure directed at relieving his apprehensi-
veness is also shown by Siegmund's remark to Russell as
the nurses wheeled Mr. Soltys into the surgical suite.
Thus, I conclude that the incident cannot be explained as
a mere exercise of discretion, perhaps misguided, taken in
the interest of calming an overly apprehensive patient, and
that Gagnon on the basis of the evidence before him had
cause to reject the explanation given by the nurses and to
conclude that what they had done was unprofessional.
However, the question remains whether Gagnon would
have decided to discharge the nurses for this incident if not
for the union activities at the hospital.
As set forth above, Gagnon specified five reasons, apart
from the general charge of unprofessional conduct set forth
in the discharge letter, for discharging the four nurses. As
the discussion above indicates, the record supports Gag-
non's conclusion that the conduct of the nurses in garbing
and transporting Mr. Soltys was contrary to proper nursing
practice. Apart from the fact that the explanation given by
the nurses for their conduct must be rejected, the conduct
of the nurses caused excitement and stimulation which
would tend to have an effect contrary to the purpose of the
preoperative medication given to Mr. Soltys, as Allard's
testimony on cross-examination concedes. Thus, the
nurses' conduct not only was unjustified as an impromptu
effort to aid the patient, but could be viewed as contrary to
the immediate interest of preparing him for the operation.
There is, however, no evidence of any harm to Mr. Soltys
flowing from the incident, and indeed despite the mode of
garbing and transporting Mr. Soltys, he arrived at the
operating room in the desired state, as Dr. Maramag
observed.
A further reason given by Gagnon was that the garbing
of Mr. Soltys abused his dignity. There is again support for
this conclusion, although it is far from clear whether Mr.
Soltys himself was aware that the way in which he was
garbed was unusual or demeaning. However, the irregulari-
ty was noticeable to Mrs. Soltys and any other staff
members who saw him. Particularly in view of the effect of
Mr. Soltys' jaundiced condition on his skin color, it was
reasonable to conclude that apart from other consider-
ations, the joke at Mr. Soltys' expense tended to demean
his personal worth. However, this conclusion must be
tempered by evidence that the atmosphere at the hospital
was informal, patients and staff generally knew each other
Siegmund's failure to attempt to ascertain appropriate procedure in advance
of preparing Mr. Soltys, and the absence of any testimony to relate the use
of the shower cap and plastic bag to the fact that Mr. Soltys was on
precautions.
44 There is testimony that relatives of patients were called on other
occasions as a matter of courtesy to see patients just before they were taken
to surgery, and it was disputed whether such calls were made absent a
specific request. Here what Fjellman told Gagnon indicates that at least one
purpose in calling Mrs. Soltys was to see her reaction and that the call to her
was not simply an instance of the practice followed with others.
867
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and certainly did in this case, and joking with patients was
common.
Gagnon testified that he also relied on the fact that the
nurses did not apologize or give any indication of
recognition that what they had done was wrong. The
record shows that the nurses did not apologize and that
three of them gave no indication that they recognized what
they had done was wrong. Siegmund's statement that she
was sorry if Gagnon interpreted the statement as designed
to humiliate Mr. Soltys was coupled with her assertion that
what the nurses did was designed to calm an overly
apprehensive patient. None of them told Gagnon that they
were sorry if what they did caused Mr. or Mrs. Soltys to
become upset, and only Fjellman gave any acknowledge-
ment that they may have been wrong in what they did. The
significance of this factor is weakened, however, by the
circumstances under which Gagnon spoke to the nurses.
Gagnon did not ask the nurses for their version of the
incident, and I have credited them that Gagnon gave them
little opportunity to speak before announcing their suspen-
sions. Once that announcement was made and Gagnon
had conveyed his own emotional reaction to the incident,
there was little likelihood that the nurses would come
forward and volunteer anything which might be used
against them.
The evidence relating to the remaining reasons cited by
Gagnon for deciding to discharge the nurses gives support
to an inference that Gagnon's action was based on the
union activities at the hospital as well as the nurses'
treatment of Mr. Soltys.
Gagnon testified that in deciding to discharge the four
nurses he relied on the fact that he viewed their conduct as
interfering in private affairs resulting in the humiliation of
Mrs. Soltys. In explaining why he believed the nurses
sought to humiliate Mrs. Soltys, Gagnon testified that he
saw the incident as an attempt to provoke a member of
management into an uncompromising or uncomfortable
situation because he deemed such attempts common in the
course of union organizing activities.4 5 Thus, Gagnon did
not simply view what the nurses did as employee miscon-
duct but saw it as a maneuver to gain an advantage in the
union organizing campaign then in progress at the hospital.
The record shows no basis for this view of the incident
other than the subjective reactions of Gagnon and Mrs.
Soltys. That Gagnon viewed it in this manner, however,
shows that he saw it as a matter to be dealt with not only
on its own merits as a disciplinary problem, but as a
countermove in a campaign in which organization of the
hospital employees was at stake.
Of similar effect is Gagnon's testimony that one of the
reasons for his decision was his concern that what the
nurses did reflected adversely on the hospital. Until
Gagnon suspended the nurses, the incident was known
only to those on the hospital staff. The matter became
public only after the suspension and after a newspaper
article carried the charge that the suspension was attribut-
able to the union activities. Insofar as appears, the details
of the incident itself were not publicized. That Gagnon was
concerned over that publicity is shown by his indication to
45 As noted above, Mrs. Soltys testified similarly.
46 First National Bank & Trutw Co, 209 NLRB 95, 101 (1974); General
Nutriion Center. Inc., 221 NLRB 850. 855 (1975).
Dean, shortly before the discharges, that the involvement
of the press complicated his decision.
That the hospital's disposition of the matter was
influenced by the union activities was again demonstrated
by the response of the hospital, in which Gagnon
participated, to the attempt of the nurses to file a grievance
over their discharges. Evidently based upon a newspaper
report that the Union intended to file charges, the hospital
declined to consider the grievance on its merits stating that
the NLRB was the appropriate forum to resolve it. In
amplification, Gagnon testified that since a charge was
going to be filed, the hospital president felt that whatever
action the hospital took would be overruled and supersed-
ed by the NLRB.
Of course, if the hospital had decided to reinstate the
nurses, the hospital's action would have hardly been
overruled and superseded by the NLRB whatever conclu-
sion it reached as to the merit of the charge, and if the
hospital had considered the grievance on its merits and
rejected it, the hospital's action would not have been
overruled and superseded unless the NLRB found merit in
the charge. Thus, nothing in the statement of intention to
file a charge either precluded or rendered moot consider-
ation of the grievance on its merits. Although not alleged as
such in this complaint, the hospital's refusal to entertain
the grievance because charges were to be filed was itself
interference with employees' statutory rights. 46
There is further evidence to support an inference that
union activities played a substantial role in the decision to
discharge the four nurses. One measure of the gravity of the
incident is found in Mrs. Fleming's response to it. Mrs.
Fleming was herself a direct witness to the incident. She
observed the four nurses wheeling the stretcher to the
surgical suite and heard the noise they made. Mrs. Fleming
at most asked what was going on but took no initiative
herself to pursue the matter until Monday morning after
Mrs. Soltys told Fleming she planned to speak to Gagnon
about it. It is true that about an hour and a half after the
incident Mrs. Soltys went to Fleming, complained, and
asked her to wait until her husband had left the hospital to
take any action against the nurses. But that request had
nothing to do with Fleming's failure to react immediately
to the incident when she observed it or to show greater
sensitivity to other aspects of the incident when she spoke
to Gagnon on the following Monday. Indeed, if anything,
the fact that Mrs. Soltys had complained to Fleming
should have made her more rather than less sensitive in her
response to the incident when talking to Gagnon. I find
Fleming's response to the incident evidence that when the
incident was viewed by her, also a responsible member of
management, it was not deemed nearly as serious as
Gagnon made it, and that Fleming in her initial reaction to
the incident viewed it as a deviation unworthy of the
concentrated attention it later received. Although Gagnon
on Tuesday decided to reprimand Fleming for that view,
and did so in writing without speaking to her further, I find
it impossible to separate that decision from his own
elevation of the seriousness of the incident.47
17 Although Gagnon testified that he later learned of the conversation
868
HUBBARD REGIONAL HOSPITAL
A further factor supporting the inference that the union
activities became a substantial factor in Gagnon's decision
is the uniformity of the discipline imposed on the four
nurses. Each had a different work history, a different
responsibility, and a different role in the incident. Looking
at the two extremes, Siegmund had the longest service and
the greatest responsibility. Whether or not she was the
instigator of the incident, she was a clear participant and
was in a position to stop it. She, as well as Allard and
Plaza, had no responsibility to accompany Mr. Soltys to
the surgical suite. Despite her long unblemished record,
Siegmund's offense must be viewed as the most serious
since she not only failed to stop the incident, but clearly
lent her authority and influence to give encouragement to
the others to proceed with the incident. Her judgment
should have been that on which the hospital could rely.
Fjellman on the other hand was a relatively new
employee, also with a good record. 4? As the nurse assigned
to Mr. Soltys, Fjellman had the duty to accompany Mr.
Soltys to the surgical suite. By Fjellman's own account to
Gagnon, which he conceded he had no reason to
disbelieve, she entered the room after the garbing of Mr.
Soltys was well under way, voiced doubts, but was
influenced by Siegmund's presence to conclude that what
was being done must be all right and might be explained by
the atmosphere of greater closeness to patients which
existed at the hospital. Gagnon checked only one part of
her story, that relating to Brissette. He made no effort to
check the remainder of Fjellman's description of her role
before almost immediately deciding to discharge her along
with the others. The conclusion is compelling that Gagnon
had virtually decided upon the discharge of the others by
Wednesday morning and that Fjellman was lumped with
them with no consideration of her differing circumstances.
Her treatment is further evidence that the discipline of the
nurses transcended the incident which gave rise to it and its
particulars and became a move in the hospital's campaign
against the Union.
Further evidence supporting the inference of discrimina-
tion appears in the role Gagnon took in investigating and
pursuing the matter. Gagnon did not ordinarily participate
in disciplinary actions, but left that responsibility to line
supervision below him. Only once before in the previous 6
years did Gagnon intervene and participate when he
learned that supervision had dealt ineffectively with an
absenteeism problem by giving repeated oral warnings but
failing to follow procedures which might culminate in
discharge. Here from the start Gagnon took over the entire
responsibility for investigation and disciplinary decision.
Director of Nursing Fleming was interviewed about what
she saw but she did not participate in the investigation and
deliberations which followed let alone to assume responsi-
bility for them under Gagnon's overall guidance. 49 The
unusual procedure is indicative that normal disciplinary
considerations were suspended in this case.
The General Counsel sought to establish a number of
other instances in which unprofessional conduct was
between Mrs. Soltys and Fleming which put Fleming's response in a
difference light. as indicated Mrs. Soltys' request excused neither of the
shortcomings Gagnon attributed to Fleming. and I find Gagnon's testimony
in that regard unpersuasive.
at The only complaint against her had not been filed and was unknown
to Gagnon at the time of her discharge.
tolerated in the hospital without discipline. Some of the
examples fell for lack of proof, others appear to have been
unknown to management, and others clearly not analogous
to the incident in this case. But two, both involving Mrs.
Soltys, shed further light on Gagnon's response to the
"yellow bird" incident. One involved Mrs. Soltys' direction
to remove an isolation sign from a room housing an elderly
patient being treated for tuberculosis so that another
elderly patient could be moved in with her. In justification
for this action, Respondent introduced evidence that the
hospital was crowded and that there was no other available
bed for the second patient. However, the evidence shows
that there were two empty rooms to which the vacant bed
in the room with the tubercular patient could have been
moved and that there was no assurance that adequate
precautions would be maintained to protect the nontuber-
cular patient in the room she was placed in.
The other example concerns a practice which existed in
the hospital for an extended period of time. Some
medications which were prescribed for patients but unused
by them were sent to Mrs. Soltys instead of being returned
to the pharmacy. Mrs. Soltys kept them in a drawer and
dispensed them to employees at their request. The
medications included antibiotics, cough syrups, aspirin,
and Darvon, but not narcotics. Some were prescription
medications. This practice continued until a new pharma-
cist instituted a unit dosage system which eliminated the
possibility of leftover medications.
It is difficult to escape the conclusion that both are
examples of unprofessional conduct. Each involved a
breach of proper procedure with possible danger to others.
The first unnecessarily exposed a patient to infection, and
the second placed the hospital in the position of dispensing
drugs without prescription or medical supervision to
employees for use by themselves and their families. While
the relative gravity of various breaches of professional
standards is always hard to determine, the hospital's total
insensitivity to these two examples when considered in
contrast to the severity of Gagnon's reaction to the "yellow
bird" incident is further indication that Gagnon's reaction
was attributable to more than the unprofessionalism of the
conduct involved.
In the light of all the above, I conclude that the
preponderance of the evidence supports the inference that
the union activities of the four dischargees and of the
hospital employees generally played a substantial role in
Gagnon's decision to discharge and not to reinstate Nurses
Allard, Fjellman, Plaza, and Siegmund and that by
discharging and refusing to reinstate them, Respondent
violated Section 8(a)3) and (I) of the Act.
B. The Alleged Violations of Section 8(a)(1)
About April 28, when some nurses were engaged in
informational picketing and handbilling outside the hospi-
tal for the first time, Mary Ann Bell, associate director of
nurses, told nurse Patricia DeFilippo that she hoped that
'9 Fjellman testified to an attempt by Fleming to obtain details from her
after Gagnon spoke to her, but in Gagnon's descnption of his investigation
and decision he mentioned no involvement of Fleming other than giving her
own statement to him on Monday.
869
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
none of the girls on her shift would be out there picketing
and that it would not go well for them.50 Bell did not say in
what manner it would not go well for the girls. During the I
or 2 weeks the handbilling continued, Bell joined a
conversation at a coffeebreak with Nurse Theresa Ann
O'Donoghue who participated in the handbilling and
several others. Bell said that she hoped they were not
jeopardizing their jobs by handbilling and that she hoped
what they were doing was not illegal. Bell also said that she
would not advise any of her nurses to be out there doing
that. Some of those present said that they thought that
what they were doing was right, that they were committed
to do it, and that they had to stand up for what they
believed in. They asserted that the handbilling was not
illegal. On other occasions, Bell said that she hoped she was
not doing anything illegal and that she would not want the
nurses to put their jobs in jeopardy because of it.
I find that Bell's statements to DeFilippo, O'Donoghue,
and others were implied threats of reprisal for the
picketing. Insofar as appears the picketing was at all times
lawful and protected. On the first occasion Bell's threat was
imprecise but was no less a threat that if girls on her shift
picketed they would be worse off for having done so. On
the later occasions Bell coupled her hope that the nurses
were not jeopardizing their jobs by picketing with a hope
that it was not illegal, but did not confine the implied
threat of job loss to the event that they picketed illegally. I
find that Bell's repeated threats were directed at lawful
picketing and were designed to discourage employee
participation in it. I find that Bell's threats of reprisals
violated Section 8(a)(l) of the Act.
On one occasion in early May, Bell asked O'Donoghue if
she had changed her mind yet on how she was going to
vote. When O'Donoghue answered that she had not, Bell
said that she was not telling her which way to vote and the
conversation ended. As this was the only instance of
interrogation established, and O'Donoghue was a known
union activist, I find that it is insufficient to support a
finding that Respondent engaged in coercive interrogation.
During the spring before the election, Associate Director
of Nurses Diane Canty called nurse DeFilippo aside a
number of times to talk to her about the Union, sometimes
with other nurses present. On most of these occasions
Canty said that she thought the Union was a violent union,
and in conjunction therewith usually showed the nurses a
booklet of newspaper clippings about the Union. Canty
told the nurses that they did not need a union, that the
hospital board members realized they had made mistakes,
that they were willing to correct them, that the nurses
should give them another chance, and that they would
probably do well for them.5t
On one occasion Canty gave examples to Pamela
Moylan and two others of what would be different in the
hospital if the Union got in. Canty said that she felt she
would have to be a better supervisor because stewards
~" The testimony as to statements by Bell was uncontradicted. One
witness, Pamela Moylan. testified to statements by Bell which were clearly
protected by Sec. 8(c) and need not be set forth herein.
', DeFilippo and Moylan both testified to this effect. Canty was not
questioned about her statements about the hospital board and denied only
that she told employees they didn't need a union. I credit nurses DeFilippo
and Moylan, finding likely that in the context of her efforts otherwise to
would be watching her and would probably report her if
she did not carry out her role. Canty said that she would
have to be stricter in enforcing rules, that the nurses would
have to wear their caps until 11 p.m., that there would be
no smoking in the backroom, and similar requirements
would be enforced. Canty told them that if they did
anything wrong, they would receive a verbal warning, a
written warning, and then discharge.5 2 Canty said that if
management violated the contract in any way the Union
would be quick to file a grievance. Canty also told Moylan
that it was important to vote in the election, that she could
not tell Moylan how to vote, and that it would be Moylan's
decision to make.
Canty's statements to DeFilippo and others about the
hospital board conveyed a promise of benefit. While the
benefits promised were not spelled out, the message was
nonetheless clear that the improvements would come if the
nurses gave the hospital another chance, i.e., rejected the
Union. I find that by these remarks of Canty, Respondent
violated Section 8(a)(1) of the Act.
I find also that Canty's statement to Moylan and two
others conveyed a threat of reprisal if the nurses chose to
be represented by the Union. Although Canty testified that
she believed the Union would require her to do the things
she mentioned, her testimony that she believed stewards
would require stricter enforcement of rules against the
nurses is impossible to believe. The message Canty
conveyed was that if the Union was chosen, she would go
by the book and stop overlooking minor infractions that
had been ignored in the past. I find that Canty's statements
that she could not tell Moylan how to vote and that it was
Moylan's decision to make to do nothing to weaken the
threat which was aimed at coercing Moylan and others in
making their decision. I find, accordingly, that Canty made
threats which violated Section 8(a)( ) of the Act.
I find that Canty's statements about union violence and
the showing of the booklet of clippings did not exceed the
bounds of protected free speech and find no violation
based on them.53
IV. THE OBJECTIONS
The objections to the election raise the same issues as the
unfair labor practices considered above. Respondent
contends initially that even if, as found above, its conduct
violated the Act, it does not warrant setting aside the
election.
If the statements of Bell and Canty stood alone, there
might be merit in the contention, at least to the extent of
the elections in the nonnursing units. But I cannot agree
that the discharges do not warrant setting aside the
elections.
discourage support of the Union Canty told employees that they did not
need a union.
52 These findings are based on a composite of the testimony of Moylan
and Canty.
53 The complaint does not allege any other violations based on her
statements.
870
HUBBARD REGIONAL HOSPITAL
A discriminatory discharge of an employee "goes to the
very heart of the Act,"5 4 and discrimination against some
employees tends to discourage union membership and
activities of all employees. The Board has held that
discriminatory discharges without more require setting an
election aside. 55 Here, in the light of the postdischarge
publicity, the rejection of the nurses' grievances based on
the filing of the charges, and the other interference with
employee rights by Supervisors Bell and Canty, there is no
reason to depart from that holding and to conclude that
discouragement of union membership and activity which
followed from the discharges was dissipated in the less than
2-month period which elapsed between the discharges and
the elections. Accordingly, I shall recommend that Objec-
tions 2 and 3 be sustained, that the elections be set aside,
and that new elections be directed.
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully discharged
Sharon Allard, Susan Fjellman, Marlene Plaza, and
Geraldine Siegmund, I shall recommend that Respondent
be ordered to offer them immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges. I shall further
recommend that Respondent be ordered to make them
whole for any loss of earnings they may have suffered as a
result of the discrimination against them by payment to
them of the amounts they normally would have earned
from the dates of their discharges until the dates of
Respondent's offer of reinstatement, less net earnings, to
which shall be added interest at the rate of 6 percent per
annum in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Hubbard Regional Hospital is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. District 1199 Mass., National Union of Hospital &
Health Care Employees, RWDSU/AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By promising better treatment of employees if they
rejected union representation; by threatening employees
with loss of jobs and other unspecified reprisals if they
engaged in informational picketing: and by threatening
employees with stricter enforcement of rules if they chose
"4 N.L.R.B. v. Enlwistle Manufarruring Compauns, 120 F.2d 532 (C.A. 4.
1941).
5s Olsegio Ski Club-Hidden Valler. Inc., 217 NLRB 418 1975)
1" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National L abor 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
to be represented by a union, Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Sections 8(aX)() and 2(6) and (7) of the Act.
4. By discharging Sharon Allard, Susan Fjellman,
Marlene Plaza, and Geraldine Siegmund because of their
union activities, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(3) and (I) and 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER5
The Respondent, Hubbard Regional Hospital, Webster,
Massachusetts, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Promising better treatment of employees in order to
discourage them from engaging in union activities.
(b) Threatening employees with loss of jobs, stricter
enforcement of rules, or other reprisals because they
engage in union activities or choose to be represented by a
union.
(c) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment or
any term or condition of employment because they become
members of or engage in activities on behalf of District
1199 Mass., National Union of Hospital & Health Care
Employees, RWDSU/AFL-CIO, or any other labor
organization.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to engage
in or refrain from engaging in ony or all of the activities
specified in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Sharon Allard, Susan Fjellman, Marlene Plaza,
and Geraldine Siegmund immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights or privileges, and make them
whole for any loss of earnings they may have suffered as a
result of discrimination against them in the manner set
forth in the section of the Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of compliance
with paragraph (a) above.
(c) Post at its Webster, Massachusetts, place of business,
copies of the attached notice marked "Appendix." 57
Copies of said notice on forms provided by the Regional
Director for Region 1, after being duly signed by
its findings, conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
57 In the event that the Board's Order is enforced b. a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region I, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER RECOMMENDED that Objections 2 and 3 to
the elections conducted in Cases I-RC-14218, I-RC-
14220, and 1-RC-14271 be sustained, that the elections
held on June 10, 1976, be set aside, and that the cases be
remanded to the Regional Director for Region I to
conduct new elections at such time as he deems appropri-
ate.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise better treatment of employees
in order to discourage them from engaging in union
activities.
WE WILL NOT threaten our employees with loss of
jobs, stricter enforcement of rules, or other reprisals
because they engage in union activities or choose to be
represented by a union.
WE WILL NOT discharge or otherwise discriminate
against our employees in regard to their hire or tenure
or any term or condition of employment because they
become members of or engage in activities on behalf of
District 1199 Mass., National Union of Hospital &
Health Care Employees, RWDSU/AFL-CIO, or any
other labor organization.
WE WILL offer Sharon Allard, Susan Fjellman,
Marlene Plaza, and Geraldine Siegmund immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights and
privileges, and WE WILL make them whole for any loss
of earnings they may have suffered as a result of the
discrimination against them.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to engage in or to refrain from engaging in any or
all the activities specified in Section 7 of the Act. These
activities include the right to self-organization, the right
to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.
HUBBARD REGIONAL
HOSPITAL
872