Misericordia Hospital Medical Center

National Labor Relations Board - Board Decisions

Nov 5, 1979

246 N.L.R.B. 351 (N.L.R.B. 1979)

MISERICORDIA HOSPITAL MEDICAL CENTER
Misericordia Hospital Medical Center and Committee
of Interns and Residents and New York State
Nurses Association. Cases 2-CA 15789 and 2-CA-
15923
November 5, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDAL
On August , 1979, Administrative Law Judge Mi-
chael O. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,' and General Counsel and the
Charging Parties filed briefs in support of the Admin-
istrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Misericordia Hospital Medical Center, New York,
New York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Antoinette Cafaro immediate and full
reinstatement to her former position or, if that posi-
tion no longer exists, to a substantially equivalent po-
sition, without prejudice to her seniority or any other
rights and privileges previously enjoyed and make her
whole for any losses she may have suffered by reason
I Respondent's request for oral argument is hereby denied as, in our opin-
ion, the record in this case, including the exceptions and briefs, adequately
presents the issues and positions of the parties.
2 Respondent has excepted to certain credibility findings made by the Ad-
minstrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his finding.
We shall modify the Administrative Law Judge's recommended rein-
statement order to conform the Board language. and his recommended no-
tice to reflect that change.
of her unlawful discharge, in the manner set forth in
the section of this Decision entitled 'The Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF 1THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WI.I NOT tell our employees that they are
disloyal to the hospital if they engage in pro-
tected concerted activities.
WE W'ILI NOT threaten our employees with re-
prisals for engaging in protected concerted ac-
tivities, such as giving information affecting
working conditions to the Joint Commission on
Accreditation of Hospitals.
WE WILL. NOT discharge our employees be-
cause they engaged in protected concerted activi-
ties.
WE WL.. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them un-
der Section 7 of the National Labor Relations
Act, as amended.
WE WILL offer Antoinette Cafaro immediate
and full reinstatement to her former position as
head nurse or, if that position no longer exists, to
a substantially equivalent position, without loss
of' seniority or any other rights and privileges
previously enjoyed, and WE WI.L make her
whole for any losses she may have suffered be-
cause we discharged her, plus interest.
MISERICORDIA HOSPITAL MEICAI. CENTER
DECISION
SIAIIEMENT OF HE CASE
MIC:HAEL O. MILLER, Administrative Law Judge: These
consolidated cases were heard before me on May 10 and I,
1979, in New York, New York, based upon unfair labor
practices charges filed on August 7 and October 10, 1978,'
as amended, and complaints issued by the Regional Direc-
tor for Region 2 of the National Labor Relations Board,
herein called the Board, on September 20 and November 1.'
The complaints allege that Misericordia Hospital Medical
Center, herein called Respondent, violated Section 8(a)(l)
of the National Labor Relations Act, as amended, herein
I All dates hereinafter are 1978, unless otherwise noted.
2 The complaints, each based upon a separate charge or amended charge,
as filed in Case 2 CA- 15789 by the Committee of Interns and Residents,
herein called CIR, and in Case 2-CA 15923 hb the New York State Nurses
Association. herein called SNA, though issued on different dates, are identi-
cal.
246 NLRB No. 57
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Act, by warning employees to refrain from mak-
ing statements adverse to Respondent's interest to the Joint
Commission on Accreditation of Hospitals, by threatening
employees who made such statements with discharge, and
by discharging Antoinette Cafaro because she engaged in
the protected concerted activity of contributing information
for a report to the Joint Commission on Accreditation of
Hospitals. Respondent denies that Cafaro was an employee,
that the activity for which she was allegedly discharged was
protected concerted activity, and that she was discharged
for engaging in such activity.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and to cross-exam-
ine witnesses, and to argue orally. All parties filed briefs;
the General Counsel presented oral argument as well.
Upon the entire record,3 including my careful observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS-PREI.IMINARY CONCLUSION OF
LAW
Respondent is a New York corporation engaged in the
Bronx, New York, in the operation of a hospital, providing
in-patient and out-patient medical and health care services.
Jurisdiction is not in dispute. The complaint alleged, Re-
spondent admitted, and I find and conclude that Respon-
dent satisfies the Board's standards for the assertion of ju-
risdiction over hospitals and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and is a health care institution within the mean-
ing of Section 2(14) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Antoinette Cafaro's Supervisory Status
Respondent contended, and General Counsel disputed,
that Antoinette Cafaro, a head nurse (also called an asso-
ciate nursing care coordinator), was a supervisor within the
meaning of Section 2(1 1) of the Act. Resolution of this issue
will determine the course of the analysis of this case, and it
will be treated first.
The Board has repeatedly dealt with the question of
whether head nurses are statutory supervisors, excluded
from collective-bargaining units and from the protections of
the Act. In so doing, as stated in Newton-Wellesley Hospital,
219 NLRB 699, 700 (1975), it has applied the principle
that:
... the test for determining whether a health care pro-
fessional is a supervisor is whether that individual, who
may give direction to other employees in the exercise
of professional judgment which is incidental to the pro-
fessional's treatment of patients, also exercises supervi-
sory authority in the interest of the employer.
Application of that principle and relevant Board precedent
leads me to conclude that Antoinette Cafaro did not possess
or exercise any of the statutory indicia of supervisory status.
3 Respondent's unopposed motion to correct the record is granted.
Respondent's job description for head nurses stated that
they were "responsible for an organized hospital patient
care unit" where they maintained "the quality of patient
care including compliance with physicians' orders and
other Medical Center Policies." These responsibilities in-
cluded the coordination, development, implementation, and
evaluation of the nursing regimen on their assigned floors.
According to that job description, they established the staff-
ing patterns and personnel assignments, participated in the
teaching of other nurses, and provided orientation, counsel-
ing, and written evaluations for, and upon, the employees
working under them.
More instructive than the position description on this is-
sue is the manner in which the head nurses actually oper-
ated and the extent of their real authority. Cafaro was the
head nurse on floor 6 north. Working under her, on all
three shifts, were three assistant head nurses (one on each
shift), nine full- and part-time registered nurses (RNs), one
practical nurse (LPN), one nursing technician, and eight
aides. Superior to the head nurses were nursing care coordi-
nators (NCCs), also called supervisors. There were six
NCCs; Cafaro and two other head nurses reported to one of
them, Taibi. The NCCs, in turn, reported to the director of
nursing, Dengler.
According to her uncontradicted testimony, Cafaro spent
approximately half of her time at the nurses' station per-
forming such functions as receiving doctors' orders, record-
ing information of patients' charts, writing orders for treat-
ment, transmitting those orders to the nursing team leaders,
and preparing schedules and evaluations. Thirty percent of
her time was spent with patients and their doctors, and the
remaining 20 percent was occupied in meetings, transporta-
tion of patients, teaching of patients and staff, and miscella-
neous functions. Taibi, in contrast, spent little of her time
on 6 north; she was there, on rounds, approximately three
times a week. On her rounds she would check the patients
cards, inquire as to the care being given, and check on
equipment and supplies.
Team nursing was practiced on 6 north. The staff was
divided into two teams, each servicing half of the patients.
Cafaro made the assignments of team leaders, rotating the
positions among all of the RNs and utilizing LPNs when no
RNs were available. Cafaro advised the team leaders of the
treatments prescribed for the patients to whom they were
assigned, and the team leaders assigned the necessary work
to their team members.
Cafaro's responsibilities in regard to the scheduling of
employees were similarly routine. All employees were enti-
tled to a certain number of holidays and were required to
work a number of them as well. Prior to holiday or vacation
periods Cafaro would determine each employees' prefer-
ence and prepare the schedules in such a way as to accom-
modate both the needs of the hospital for coverage and the
employees' preferences to the greatest extent possible.
These schedules were then subject to Taibi's approval and,
upon such approval, Cafaro would grant the vacation or
holiday.
All employees were required to work a certain number of
nights and weekends. Cafaro merely plotted out the sched-
ules in conformity with those requirements. Those sched-
ules were then subject to Taibi's approval and were, on
352
MISERI('ORI)IA HOSPITAL MEDICAIL ('ENTER
occasion. changed by Taibi. Only the NCs had the au-
thority to move a nurse from one shift to another. lunch
hours and breaks were scheduled by the team leaders, rotat-
ing the favored times among all of the team members.
Cafaro had no authority to assign or grant overtime. If
employees wanted to work overtime thee would tell Cafla-
ro. She would report this to Taibi. who would determine
whether they could work, and where. If additional employ-
ees were required, because of absenteeism or for other rea-
sons. Cafaro had to request help from her NCC: she could
not direct an employee to remain on overtime or call any-
one in.
Cafaro had no authority to hire or fire employees, and
she did not participate in the interviewing of employees for
hire. She did. however, write evaluations on employees in
their 3d. 6th. and 12th months of employment and yearly
thereafter. These evaluations were done on checklist forms.
rating the employees "good," "satisfactory.' or "unsatistac-
tory," in eight work traits: job know ledge. productivity. de-
pendahility, accuracy. cooperation initiative adaptabilit.
and attendance. Space was provided for commlents on each
of these traits, and the evaluator's opinion was requested on
whether the employee was performing the task best suited
to his or her ability or, if not, what work that employee
should be doing. Similarly sought was a description of the
employee's relationships with others in the hospital. A sepa-
rate section of the evaluation form was provided for recom-
mendations and comments by the "supervisor" (N('). On
one occasion, after Cafaro had mistakenly written her rec-
ommendations in regard to an employee in that section,
Taibi told her that she was not allowed to do so "and that
[Taibil would do what she had to do without any sugges-
tion." In addition to the formal evaluations. ('afaro wrote
memos to her supervisor concerning the performance or
behavior of the employees.
The parties cited Cafaro's evaluations and recommenda-
tions in regard to two employees to establish, or negate, her
supervisor5y status.4 In March and April 1977. Cafaro evalu-
ated staff nurse "Smith," rating good in virtually all areas.
In her comments she stated that Smith "should be consid-
ered for a leadership role as soon as one is available." Tai-
hi's recommendation, however, was that the nurse should
"continue functioning at this [staff nursel level." Approxi-
mately a year later, Taibi informed Cafaro that she and
Dengler had decided that they wanted to promote Smith to
assistant head nurse. Taibi asked for Cafaro's evaluation
and opinion, and Cafaro told her that she could no longer
recommend Smith for the promotion. She pointed out prob-
lems that she was having with that nurse and suggested that
another nurse receive the promotion. Taibi replied that
Smith was a longtime employee whom she wanted to pro-
mote. Taibi did not await Cafaro's written evaluation be-
fore implementing the promotion.'
Cafaro had prepared an evaluation in March 1977 on
RN "Jones." In that evaluation she rated Jones as unsatis-
' Since no purpose would be served by using the names of either of these
nurses, thereby possibly subjecting them to unnecessary embarrassment. the
two nurses will be identified as "Smith" and "Jones." The record. however.
fully identifies them.
' Respondent contended, on brief. that (afaro's testimony in regard to
Smith's promotion and her recommendations thereon was not credible.
However, it adduced no testimony to contradict (Cafaro's, and I find no basis
on this record for not accepting Cafaro's testimony as offered.
factory on six of the eight attributes and only satisfactor\
on the remainder. tHer comments regarding Jones were
critical, and where the form stated "completed by supervi-
sor," she wrote: "Probation for 3 months. If behavior not
corrected. termination should be considered."' On June 20.
1977, Cafraro sent Taibi a memo regarding Jones' absentee-
ism, failure to call in, and general lack of commitment. She
asked "that some official action be taken to correct this
situation." Again, on August 8. Cafaro wrote Taibi con-
cerning Jones' tardiness and insubordinate attitude. Again
she requested corrective action. At the same time. Taibi
reviewed the 3-month reevaluation (afaro had prepared on
Jones in July. wherein Cafaro had again rated Jones as
unsatisfactory on virtually all points and suggested that
"the prexiously suggested action be considered at this
time." Taibi then recomtmended immediate terminamtio on
the basis that there had been no improvement from the
prior evaluation, and Jones was terminated. In agreement
wsith the General Counsel. I find that Taibi's disregard of
('afaro's recommendation pertaining to Jones and her delay
in acting against Jones establish that little weight was given
to the recommendations ('afaro made.
In regard to discipline, the record reveals that C'ataro had
the authority orally to counsel other employees when prob-
lems arose. She could go no further, however. and had to
report the problems to Taihi. from whom she could request
corrective action (as she did in the case of employee Jones).
Iler authority with regard to employees' complaints or
grievances as essentially the same as her authority in re-
gard to discipline.
As head nurse, Cafairo was hourly paid at a rate approxi-
matelyv 12-1/2 cents above that of the assistant head nurse.
Other employees had to punch in on a timeclock: head
nurses did not. Neither were they required to work as many
weekends as the RNs. Ihe he ad nurses were evaluated by
their superiors on forms reserved tfor "Management/Super-
visory.' By stipulation of Respondent and the New York
State Nurses Association they were excluded from the bar-
gaining unit of registered nurses in Case 2-RC- 18003.
8
The duties and responsibilities of Respondent's head
nurses, as described by Cafaro (the only witness to testify in
regard thereto), are essentially identical to those of the head
nurses as described in Newton-Welleslev Hospital. supra:
The Trustees of Noble Hospital, 218 NLRB 1441 (1975): and
Wing Memorial Hospital 4ssociation, 217 NLRB 1015
(1975). The Board, in each of those cases, held that the
head nurses, who both evaluated and reprimanded other
employees, were themselves employees rather than supervi-
sors. In Newston-Wellesle, supra at 701, for example, the
Board stated:
Unlike the supervisors and nurse leaders, to whom
the head nurses report, the head nurses have no au-
thority to hire or discharge any employee or to effec-
tively recommend any such action. Nor are they au-
' It was following this recommendation that Cafaro was told not to com-
plete that section of the evaluation form
7 This memo referred to an earlier one, dated June 3 which had pointed
oul similar prioblems with Jones. he June 3 memo is not in the record.
a That stipulation is. of course, not binding upon either the General Coun-
sel or the oard in an unfair lah*r practice proceeding. See Southern Paint &
Waiterpr,ifing ('o. Inc. 230 N.RB 429. 436 (1977)
353
D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
thorized to revise work schedules, approve overtime, or
transfer employees between departmental units. Al-
though they are called upon by supervisors to evaluate
the performance of employees assigned to their units
and sign evaluation sheets together with the supervi-
sors, the record shows that supervisors do not rely sole-
ly on the opinion of head nurses in evaluating the po-
tential of employees for promotion or retention, but
seek information from a variety of personnel. Head
nurses do not discipline employees beyond the stage of
verbal reprimand ....
In that and the other cited cases, the Board found the duties
and authority of the head nurses to be "principally the
product of highly professional skills" and not the exercise of
supervisory authority in the interest of the employer. Ac-
cordingly, it found them to be employees. See also McAle.s-
ter Hospital Foundation, Inc., d/h/a MA lester General Htos-
pital, 233 NL.RB 589 (1977): Sutter Conmuni' tHo.spital.s of
Sacramtento. Inc.. 227 NLRB 181. 191 192 (1976): and St.
Mao,'s lHospital, Inc., 220 NLRB 496 (1975).
Respondent cited several cases wherein head nurses were
found to be statutory supervisors, including A. Barton Hep-
burn Memorial ospital, 238 NLRB 95 (1978): Gnaden
Iluetten Memorial Ho.spital, Ins., 219 NLRB 235 (1975):
and Doctors' Hospital of Modesto, In., ec., 183 NLRB 950
(1970). In each of the cited cases, however, the head nurses
had, unlike Cafaro. effective authority to recommend hire.
discipline, transfer, raises, promotions, and/or authorized
and assigned time of' and overtime. These are the tradition-
al indicia of supervisor) status, not present herein.
Accordingly, I find that Antoinette Cafaro was an em-
ployee, not a supervisor within the meaning of the Act, and
that her union and other protected concerted activities
came within its protections.
B. Cafaro' Conduct and Discharge
Pursuant to both New York state and Federal law and
regulations, hospitals are required to meet certain standards
in terms of the quality of their health care and the cleanli-
ness and the condition of their physical plants in order to
participate in such programs as medicare and medicaid.
from which they derive significant patient flow and income.
In order to determine whether they meet these standards,
hospitals are subject to a survey, every second year, by the
Joint Commission on Accreditation of Hospitals. Respon-
dent's survey was scheduled and conducted between June
16 and 20, 1978.
Prior to the survey being conducted, Respondent, as it
was required to do, posted notices which invited interested
persons, including hospital staff, to appear and present in-
formation before a public meeting of the commission to be
held on June 16. In response to this solicitation, Dr. John
Bauers. a resident physician employed at Respondent's hos-
pital, formed an ad hoc committee to collect information
and prepare a presentation, addressing alleged deficiencies
in patient care and working conditions, for the Joint Com-
mission. According to his testimony, Dr. Bauers hoped that,
by taking this course of action, corrective measures could
be stimulated. The committee which he formed consisted of
physicians, head nurses, and staff nurses. Six or seven peo-
ple were actively engaged in this effort; others contributed
information for the report. Included among those on this
committee were Antionette Cafaro and Adrienne Liguori,
head nurse in the intensive care unit.
The various committee members contributed information
in regard to what they perceived to be defects or problems
in regard to the physical structure of the hospital, its staff-
ing, and the handling of patients. Dr. Bauers collated the
information, which was then read at the June 16 hearing by
a staff' representative of the CIR. The report dealt specifi-
cally with three areas, the emergency room and admissions
policies, the physical environment, and nursing staffing pat-
terns.
In the introductory remarks, the report stated:
It is regrettable that this group [the ad hoc patient care
committee] is in the position of having to report what it
considers to be such serious deficiencies in the quality
of care at Misericordia Hospital; but we feel that we
cannot, in good conscience, stand by and allow such
deficiencies to continue unnoticed amidst the last min-
ute dressing up of the physical plant. and flow of the
activity to insure proper appearance of charts, manuals
and the like. Members of this group have repeatedly
tried to point out these deficiencies in the past, but to
no avail,
The report described an incident of a patient being retained
in the emergency room area and contended that that sec-
tion was being used as an overflow ward. In regard to floor
6 north. the report, based on information furnished by Ca-
taro, detailed the physical inadequacies of that section. the
increase in the number of beds therein, and a decrease in
the number of full- and part-time nursing positions. Specif-
ically pointed out were cases of patients, identified by initial
and chart number, who, it was contended, received less
than adequate care because of their assignment to floor 6
north. A complaint was also voiced concerning the alleged
insufficiency of staffing in the special care units (intensive
care and cardiac care). A detailed description of nursing
staff shortages was presented and was related to specific
patient care incidents. The report alluded to unsanitary
conditions in various parts of the hospital. It concluded
with the statement, "We look to you, the JCAH, to exert
the necessary pressure to see that these deficiencies are cor-
rected." Present when this report was presented were Dr.
Frank T. Cicero, Respondent's chief executive officer, other
members of the hospital's administrative staff, the heads of
the various medical and nursing departments, the president
of the medical board, and possibly members of the hospi-
tal's community board, who were representatives of the
community served by the hospital.
The Joint Commission conducted its summation confer-
ence on June 20. At that time, after directing that the head
nurses and representatives of the staff nurses and other de-
partments attend, Dr. Cicero issued his rebuttal to the ad
hoc committee report. In his tape-recorded rebuttal, Cicero
commented repeatedly on the fact that the ad hoc commit-
tee's report was unsigned. He referred to the ad hoc com-
mittee's report as "vicious and venal," requiring "a firm and
forthright denouncing." He said, "We cannot allow a selfish
few, hiding behind their view of how a hospital should be
run [to] jeopardize the jobs of 1100 good, conscientious and
354
MISERICORDIA HOSPITAL MEDICAL CENTER
hard working people, and that's just what they've at-
tempted, and they will not succeed." As he went through
his response, he asked the various groups of hospital em-
ployees, to whose responsibilities the ad hoc committee re-
port had made reference, to stand while he commented
upon their work. He then questioned the motivation of
those who prepared the report and asked that the report be
given no weight because it was unsigned. He specifically
made reference to the hospital's dealings with the CIR and
with the "three nurses who are in charge of the two floors
prominently mentioned in the report." He discussed the
various allegations against the hospital, pointing out what
he deemed to be inaccuracies or omissions on the part of
the ad hoc committee and strengths on the part of the hos-
pital. He pointed out, among other things, what the hospital
had done to improve the nursing staff situation.
On the morning of June 23. Dr. Cicero held another
meeting with the hospital's head nurses. Specifically ex-
cluded from that meeting were Cafaro and Liguori. They
were excluded, according to Dr. Cicero. because what he
wanted to say "did not warrant their inclusion." He testi-
fied that he thought the meeting would he embarrassing to
them. In the course of this meeting, according to Dr. Cic-
ero, one of the nurses asked him what should happen to the
nurses who wrote the report. e stated that he believed
"they should apologize to their co-workers in the hospital
. . .and . . . should resign." Although he did not recall
saying what would happen if they did not apologize and
resign, head nurse Geraldine Peaks and Acting Supervisor
Barbara Keane recalled Dr. Cicero saying that, if the) did
not resign, other actions would be taken. Although Keane
testified that Dr. Cicero did not specify what the other ac-
tions would include, Peaks recalled Dr. Cicero saying that
some of them would be fired on the spot. I credit their
recollections to the extent that they are consistent.
A second meeting was held later on June 23, wherein
both the ad hoc committee report and Dr. Cicero's response
were read to the head nurses who had not attended the
summation meeting.
On June 29, Cafaro was called into Dr. Cicero's office.
The hospital's lawyer was present. Dr. Cicero told her that
she was terminated because she did "not fit in with the
short or long-range goals of Misericordia Hospital." She
asked whether her termination had anything to do with the
presentation to the Joint Commission or with the union
activities going on at the hospital. As she recalled it. Dr.
Cicero said that if she were to tell him that she had nothing
to do with those matters, he would believe her. When she
asked what the grounds for her discharge were, he just said,
"[L]et's just say our philosophies differ." At the time of her
discharge Cafaro had been employed by Respondent for
nearly 15 years and had worked in various capacities, start-
ing as an admitting clerk. She became a registered nurse in
1970 and an assistant head nurse in 1973. She had also
served as an instructor in the in-service department and as
an acting head nurse before she became a head nurse. In
every capacity in which she had worked since 1971, Cafaro
had received satisfactory or better than satisfactory apprais-
als.
Dr. Cicero strenuously denied that Cafaro's involvement
in the ad hoc committee report played any motivating role
in her discharge. He testified that the "one over-riding
thing" motivating her discharge was that she had continued
to engage in union activities even after being notified that
she was a supervisor not included within the bargaining
unit which was being sought by the SNA in the pending
representation case. Dr. Cicero testified that this was re-
lated to him by various employees on his walks through the
hospital. He was able to name none of those who so re-
ported. Cafaro. on the other hand, admitted that she en-
gaged in union organizational efforts on behalf of SNA un-
til June 13. On that date she received a memorandum from
D)r. Cicero's office which delineated the collective-bargain-
ing unit. That unit excluded head nurses. Upon receipt of
that memo, Cafaro ceased all union activities.
Dr. Cicero testified that he also was motivated by the
reports from other persons to the effect that Cafaro had
made statements to the effect that Dr. Cicero was only
going to be at Misericordia Hospital for a short while and
had not moved his family from their home in Albany. New
York. Additionally, he said. he had received reports that
patients from Cafaro's floor had come downstairs to the
hospital administrator's office to complain, in very technical
terms, about physical shortcomings in the hospital. Cafaro
denied any involvement in any of this conduct, and her
credible denials were uncontradicted by any direct or pro-
bative evidence. She pointed out that patients cannot leave
the hospital floor unaccompanied and that, if a patient
wanted to see the hospital administrator, the administrator
would be brought to the patient's room rather than allow-
ing the patient to leave the floor for such a purpose.
Notwithstanding that all of the alleged bases for Cataro's
discharge had come to Dr. (Cicero second- or thirdhand. Dr.
Cicero did not confront Cafaro with any of these allegations
or in any way seek to obtain her versions. He testified that
he felt no obligation to do so since she was a supervisor.
Based on all of the foregoing. I must conclude, in agree-
ment with the General Counsel, that Respondent dis-
charged Antoinette Cafaro because of her role in the prep-
aration of the ad hoc committee's report. The record amply
establishes the requisite elements for such a finding. That
Dr. Cicero was angered by the presentation of the report
cannot be gainsaid.9 His animus toward the ad hoc commit-
tee and its members was reflected in both the tone and the
content of this June 20 reponse and by the manner of his
presentation at that time, which was clearly calculated to
bring opprobrium upon the ad hoc committee. Those same
remarks also established that Dr. Cicero knew, or at least
suspected, that Cafaro was involved in the report's prepara-
tion. Similarly, Dr. Cicero's conduct and statements on
June 23, excluding Cafaro and Liguori from the meeting of
June 23 and suggesting that they should apologize to their
fellow employees and resign, and implying that action
would be taken against them if they did not, confirms both
animus and knowledge and strongly points to the report as
the motivating force in the discharge.
Further, I can give little or no weight to Respondent's
asserted reasons for discharging Cafaro. i.e., the alleged
continuation of her union activity after notification that
9 Indeed, Respondent's brief asserts that Dr Cicero was "lelnraged by the
charges in the Report."
355
DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
head nurses were excluded from the unit,"' her alleged state-
ments concerning Dr. Cicero and his family, and her al-
leged involvement with sending patients to complain to the
hospital administrator. Cafaro was a good employee (ac-
cording to all her evaluations) of 15 years' tenure: the "evi-
dence" Dr. Cicero claimed to have relied upon was, for the
most part, second hand. Yet. Dr. Cicero made no effort to
check out or confirm Cafaro's guilt. Neither did he confront
her with the allegations and, when she asked him if her
union activity were involved, he professed a lack of concern
for it. Additionally, although at the hearing Respondent
claimed to have been principally motivated by the alleged
union activity and Dr. Cicero testified that he had been
hearing of' it for 2 weeks prior to the discharge, he took no
action on it, not even discussing it with Caflro. until June
29. Such is not the conduct of a manager who is truly con-
cerned about supervisory participation in union activity. I
note also that although Dr. Cicero testified that a number
of employees had reported Cafaro's activities to him, he
was unable to name a single source. Such improbable. sell-
serving, and unsupported testimony is, I find, not worth of
belief.
Similarly, no evidence was adduced to corroborate Dr.
Cicero's claim that Cafaro instigated patient complaints to
the hospital administration. Such evidence, if it existed,
would clearly have been available to Respondent. The fail-
ure to adduce that evidence warrants an inference that any
such testimony offered would have been adverse to Respon-
dent's interests. Martin Luther King, Sr., Nursing Center.
231 NLRB 15 (1977).
I further find, in agreement with the General Counsel,
that participation in the preparation of the report was pro-
tected concerted activity within the ambit of Section 8(a)(I)
of the Act and that it did not lose that protection through
the manner in which the complaints therein were published.
Thus, the report was concerned with, among other things,
the level of staffing in the hospital and the number of pa-
tients required to be cared for by that staff. Clearly. this was
a matter intimately related to the conditions under which
the employees worked. See, i.e.. The Reading Hospital and
Medical Center, 226 NLRB 611 (1976), wherein complaints
by operating room technicians concerning the proposed
elimination of a surgical residency program, which they
feared would require the technicians to perform functions
outside the scope of their training and licensure, were held
to be activity for the purpose of mutual aid and protection.
See also Community Hospital of Roanoke Valley, Inc., 220
NLRB 217 (1975). The complaints voiced in the ad hoc
committee's report also dealt with alleged problems of
cleanliness in the hospital. This is a matter clearly of con-
cern to the employees as well as the patients. It is akin to
complaints of safety violations. Employees are protected in
their presentation of such complaints to appropriate gov-
ernmental bodies. See Golden Day Schools, Inc., 236 NLRB
1292 (1978); B & P Motor Express, Inc.. 230 NLRB 653
(1977): and Alleluia Cushion Co., Inc., 221 NLRB 99 (1975).
10 Indeed, were I to credit Dr. Cicero that he was so motivated, I would be
compelled to conclude that Respondent's discharge of Cafaro violated Sec.
8(aH3) of the Act. By virtue of Respondent's admissions that issue has been
fully litigated and Respondent essentially conceded the propriety of an
8(a(3) finding if, as I have found, Cafaro was an employee rather than a
supervisor.
I note too that, as pointed out by General Counsel. Respon-
dent's nurses were bound by the Code of Nurses of the
American Nurses Association to act to improve the stan-
dards of nursing care and to join with others to meet the
public's health needs. Compliance with that code was a
condition of the nurses' employment, pursuant to Respon-
dent's job descriptions. Cafaro's cooperation with the ad
hoc committee was a step toward meeting that professional
obligation.
Respondent contended that, even if Respondent had dis-
charged Cafaro for participating in the ad hoc committee's
report, that conduct was unprotected because it involved
disloyalty toward the employer and the public disparage-
ment of Respondent's product, health care. citing Jefer.son
Standard Broadca.sting (onmpanv, 94 NLRB 1507 (1951),
enfd. . th nont. N.L.R.B. v. Local Union No. 1229. Interna-
tional Brotherhood of Electrical Workers. A.F.L.. 346 U.S.
464 1953), and other cases. Respondent's reliance on such
cases is misplaced. The ad hoc committee's report was not
cast in such terms as to cost it the protections of the Act.
'The Board has found much stronger language protected.
See, i.e., Golden Dao Schools. Inc., .supra, Great Lakes Steel,
Division o National Steel Corporation, 236 NLRB 1033
(1978). See also The Reading Hospital and Medical ('enter,
.supra.
More significant, however, is the fact that the ad hoc
committee's report, unlike the distributions involved in Jef-
/erson Standard and the other cited cases, was not published
to the public or in such a way as to disparage Respondent
in the public's eye. Copies of the report were not distributed
to the public as was done in Jefferson Standard, supra, and
Coca Cola Bottling Works. Inc., 186 NL.RB 1050 (1970).
The ad hoc committee did not mail its report to Respon-
dent's clientele, as the employees did in American Arbitra-
tion Association. Inc., 233 NLRB 71 (1977). Rather, the ad
hoc committee responded to the invitation of the Joint
Commission to present relevant information and presented
it in the manner prescribed by the commission. No evidence
was presented that any attempt was made by Cafaro or the
committee to publicize these relevant complaints outside
the confines of the hospital. If the report was given greater
notoriety than it would have achieved by mere presentation
to the joint commission, it was the action of Dr. Cicero
which focused such attention upon it. Moreover, I note the
uncontradicted evidence that Cafaro and the other mem-
bers of the committee had sought, unsuccessfully, to correct
those same complaints through less open channels. Having
attempted to do so, their recourse to the Joint Commission
was neither unwarranted nor unreasonable.
Accordingly, I find that Antoinette Cafaro was engaged
in protected concerted activity, that nothing that she or the
ad hoc committee did caused her to forfeit that protection,
and that she was discharged for that activity. Her discharge
was therefore violative of Section 8(a)(1) of the Act."
C. The 8(a)(1) Violations
Having found that the activities of the ad hoc committee
were protected by the Act. and having found that Respon-
" Having so found I deem it unnecessary to determine whether, if Cafaro
had been a supervisor, her discharge would have violated the Act.
356
MISERICORDIA HOSPITAL MEDICAL CENTER
dent's head nurses were employees rather than supervisors,
it follows that Dr. Cicero's remarks on June 20 and 23 inter-
fered with the exercise of the employees' Section 7 rights
and violated Section 8(a)(1) of the Act.
In the June 20 meeting, Dr. Cicero questioned the moti-
vation of those who prepared the ad hoc committee's report.
called them selfish and the report "vicious and venal," and
accused them of jeopardizing the jobs of "1100 good, con-
scientious and hard working people." He emphasized his
animosity by causing the "good, conscientious" employees
to stand while he praised them and derogated those he
deemed "selfish." By so doing, he sought to bring oppro-
brium upon the committee members. Similarly, on June 23
he suggested that the committee members, made obvious by
their purposeful exclusion from that meeting, owed an apol-
ogy to their follow employees and should resign. Such state-
ments conveyed to the employees that Respondent equated
involvement in protected concerted activities with em-
ployee disaffection or disloyalty. The Board holds that
statements such as these tend to interfere with, restrain, or
coerce employees in the exercise of their Section 7 rights, in
violation of Section 8(aX I) of the Act. 726 Seventeenth Inc.,
t/a Sans Souci Restaurant, 235 NLRB 604 (1978): Oscar
Enterprises, Inc., etc., 214 NLRB 823 (1974). Moreover, as
the Board pointed out in Oscar Enterprises. "The fact that a
statement may have been made 'in pique' does not nullify
its probable coercive impact."
Additionally, I have found that on June 23 Dr. Cicero
implied that if the authors of the ad hoc committee report
did not resign, some action would be taken against them.
This was a clear threat to take reprisal against those en-
gaged in protected activities, a clear violation of Section
8(a)(1) of the Act, and I so find.
111. Til RMEI)Y
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act, it will be recommended that it cease and desist there-
from and that it take certain affirmative action designed to
effectuate the policies of the Act.
It having been found that Respondent discharged Antoi-
nette Carfaro because she engaged in protected concerted
activities, Respondent shall offer her immediate and full
reinstatement to her former position or to a substantially
equivalent position if her former position no longer exists,
without prejudice to her seniority and other rights and
privileges, and shall make her whole for any loss she may
have suffered as a result of her discharge. Any backpay
found to be due shall be computed, with interest. in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977). 2
Respondent shall also be ordered to cease and desist from
infringing upon the Section 7 rights of its employees "in any
like or related manner." See Supreme Bumpers, Inc., d/h/a
Precision Plating, 243 NLRB 230 (1979).
" See, generally. Isis Plumbing & Heating Co. 138 NRB 716 1962)
CON(CILUSIONS () I.AW
I. By equating, in its statements to its employees, the
involvement of employees in protected concerted activities
with disloyalty toward the Employer and by threatening its
employees with reprisals in the event that they engage in
protected concerted activities. and by discharging Antio-
nette Cafaro because she engaged in the protected con-
certed activity of participating in the preparation of the
report of the ad hoc patient care committee to the Joint
Commission on Accreditation of Hospitals, Respondent has
interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed them under Section 7 of
the Act, thereby violating Section 8(a)( 1) of the Act.
2. The unfair labor practices enumerated above are un-
fair labor practices affecting commerce within the meaning
of Section 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 made the following recommended:
ORDER"
The Respondent, Misericordia Hospital Medical Center.
Bronx. New York, its officers, agents. successors, and as-
signs, shall:
I. ('ease and desist from:
(a) Telling employees that it equates their involvement in
protected concerted activities with disloyalty to the hospi-
tal.
(b) Threatening employees with reprisals if they engage
in protected concerted activities.
(c) Discharging employees who engage in protected con-
certed activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Antionette Cafaro immediate and full reinstate-
ment to her former position or, if that is not possible, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and made her whole
for any losses she may have suffered by reason of her un-
lawful discharge, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request. make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, and all other documents necessary to
analyze and compute the amount of hackpay due under this
Order.
(c) Post at its New York. New York. facility copies of the
I In the eent no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regul:tions, be adopted b the Board and become its
findings, conclusions, and Order, and all obhections thereto shall be deemned
waived for all purposes
357
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached notice marked "Appendix."' 4 Copies of said no- ceipt thereof: and be maintained by it for 60 consecutive
tice, on forms provided by the Regional Director for Re- days thereafter, in conspicuous places, including all places
gion 2, after being duly signed by Respondent's authorized where notices to employees are customarily posted. Re-
representative, shall be posted by it immediately upon re- spondent shall take reasonable steps to insure that said no-
tices are not altered, defaced, or covered by any other mate-
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.