Mount Desert Island Hospital

National Labor Relations Board - Board Decisions

Dec 8, 1981

259 N.L.R.B. 589 (N.L.R.B. 1981)

MOUNT DESERT ISLAND HOSPITAL 589
Mount Desert Island Hospital and Malachy Grange. but for such discrimination. In the event no such
Cases 1-CA-16082 and 1-CA-17599 vacancy presently exists and no one has been hired
December 8 ~, 1981 for such a position since such discrimination, estab-
lish a preferential hiring list headed by Grange. If
DECISION AND ORDER such a preferential hiring list is established, offer
Grange employment immediately upon the devel-
BY MEMBERS FANNING, JENKINS, AND opment of a vacancy for which Grange qualifies."
ZIMMERMAN 2. Substitute the attached notice for that of the
On June 29, 1981, Administrative Law Judge Administrative Law Judge.
Wallace H. Nations issued the attached Decision in PPENDIX
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General NOTICE To EMPLOYEES
Counsel filed a brief in support of the Administra- POSTED BY ORDER OF THE
tive Law Judge's Decision. NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the An Agency of the United States Government
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au- WE WILL NOT refuse to rehire or otherwise
thority in this proceeding to a three-member panel. discriminate against our employees in regard
The Board has considered the record and the at- to hiring or tenure of employment or any term
tached Decision in light of the exceptions and or condition of employment because they
briefs and has decided to affirm the rulings, find- engage in concerted activities protected by
ings,' and conclusions of the Administrative Law Section 7 of the National Labor Relations Act.
Judge and to adopt his recommended Order, as WE WILL NOT blacklist our employees or in
modified herein.2~modinfied h~erein~.'~ any like or related manner interfere with, re-
ORDER strain, or coerce employees in the exercise of
their rights to engage in or refrain from engag-
Pursuant t ectn c to S tion al ing in any or all0(c) of the activitonal Labories specified in
Relations Act, as amended, the National Labor Re- Section 7 of the Act.
lations Board adopts as its Order the recommended WE WILL offer Malachy Grange immediate
Order of the Administrative Law Judge, as modi- employment in any nursing position for which
fied below, and hereby orders that the Respondent, he is qualified without prejudice to whatever
Mount Desert Island Hospital, Bar Harbor, Maine, seii ad ot rights and privileges he
its officers, agents, successors, and assigns, shall od hae enod hd e discriminated
take the action set forth in the said recommended wo had not discriminated
Order, as so modified: against him, dismissing, if necessary to make arder, as so modified:Order, as so mod.fied: . ,, , position available for him, any employee hired1. Substitute the following for paragraph 2(a): position available for him, any employee hired
"(a) Offer Malachy Grange immediate employ-to a position he would have held but for such
ment in any nursing position for which he is quali-discrimination In the event no such vacancy
fled without prejudice to whatever seniority andpresently exists and no onehas been hired for
such a position since such discrimination, WEother rights and privileges he would have enjoyed suc h a posio s nc e su c h dicrimination,
had it not discriminated against him, dismissing, if W ILL estab l ish a prferential hng list headed
necessary to make a position available for him, any G I f su c h a referential hng list is
employee hired to a position he would have held established, WE WILL offer Grange employ-
ment immediately upon the development of a
In affirming the Administrative Law Judge's finding that Malachy vacancy for which Grange qualifies.
Grange's letter to the Bar Harbor Times constituted concerted activity, WE WILL make Malachy Grange whole for
we note that prior to sending the letter, which included complaints about any loss of earnins he ma have uffered as a
employee wage levels and working conditions, Grange engaged in discus-
sions with fellow employees regarding alleged deficiencies in pay, bene- result of our refusal to reemploy him, with in-
fits, and working conditions at Respondent's facility. terest.
2 The Administrative Law Judge recommended that Respondent be or-
dered to employ Grange in any nursing position for which he qualifies,
or the first available position. We find, however, that the appropriate MOUNT DESERT ISLAND HOSPITAL
remedy is to require Respondent to offer immediate employment to
Grange and, if necessary, to dismiss any employee hired since the dis- ISI
crimination against him into a position for which Grange qualifies. WeISIN
have therefore, in accordance with this finding, modified the recommend-
ed Order and substituted a new notice. STATEMENT OF THE CASE
Member Jenkins would compute the interest due on backpay in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250 WALLACE H. NATIONS, Administrative Law Judge:
NLRB 146 (1980). Upon a charge brought in Case I-CA-16082 on May 16,
259 NLRB No. 80
,.
December , 1981lf o r s u c a siti i s i ri i ti , t -
.

PPENDIX
rti f r l
l i i t T BY E OF THE
i I
ti i t t t
l
l l ti r l t its au- ILL NOT refuse to rehire or otherwise
i i l i i i i t l i d
l t r
t i i i li t ti iti l t t
i i f i li i t ti iti t t
,' i l l
t t i , l li l i
ifi herein.'
Pursuant to<** Section 1 ) of the NaTional Labor t i r ri t t i r r fr i fr e a -
o ction 10( ) of the Nation l r ing in any or all of the activities specified in
Relations ct, as amended, the National Labor Re- Section 7 of the Act.
co mendedS I offe l r i e iate
odi-employment i r i iti f r i
l t, employment in any rsing position fo whichv
i l h i q w igo t dice he
i , r , i , ll s a o r disrivieged
uld have enjoyed had we
, as i i : against him, dismissing, if necessary to make a
i , l i
(a) l y- t o a i i h e w o u ld h a v e h e l d b u t f o r su
c h
i i uali- discrimination. t t
i j i ri p r e se n t l y e x st s a n d o n e h as b e e n h ir ed f o r
le j sition i iscri i ti , E
i i I t l sh a eferent iring li t
ary i i l by range. Pr f i iring
i l t li I ff r l -
t i i l l t
'In li

note t t ri r t s i t l tt r, i i l l i t t l r ings y S f
i ,
O Our -
I
, , t t t r ri t S ISL HOSPITAL
DEC ON
. e

.
(1 1-
b y G
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1979, and a charge brought in Case 1-CA-17599 on June at the hospital, employee wage levels, and the level of
30, 1980, complaints were issued on June 21, 1979, and patient care given by the hospital. The exact text of this
August 18, 1980. The order and complaint of August 18, letter is appended to this decision as "Appendix B [omit-
1980, consolidated the two cases and alleges that on ted from publication]."
three occasions in 1979 and 1980, Mount Desert Island On July 6, 1978, Grange invited Don Snyder, the
Hospital (Respondent) refused to rehire Malachy editor of the Bar Harbor Times, to attend a staff meeting
Grange, and on one occasion in 1979, attempted to cause at Respondent's hospital, for the purpose of verifying
another employer to refuse to hire Grange, for the from the staff employees the working conditions that
reason that Grange had engaged in protected concerted were referred to in Grange's published letter. At the staff
activities for the purposes of collective bargaining or meeting, which was attended by approximately 30 staff
other mutual aid or protection and for the reason that he employees, the employees stated their complaints for the
filed charges under the Act, and by its actions, Respond- benefit of the newspaper. The complaints related to low
ent has violated Section 8(a)(l) and (4) of the Act. Re- pay and benefits, lack of security, inadequate staffing,
spondent's answer and motion to dismiss denies these al- and patient care. On July 6, 1978, at Respondent's park-
legations. A hearing was held on March 17 and 18, 1981, ing lot, Grange met Respondent's administrator, Charles
at Bar Harbor, Maine. Briefs were received from both Lotreck, and introduced himself to Lotreck by stating,
General Counsel and Respondent on or about April 29, "Mr. Lotreck, I am Mal Grange. Did you read my letter
1981.' and what did you think about it?" Lotreck did not reply.
Upon the entire record in this case and from my obser- On July 13, 1978, letters in response to Grange's letter,
vation of the witnesses and their demeanor, I make the that appeared in the prior edition of the newspaper, were
following: published in the Bar Harbor Times, and generally sup-
FINDINGS AND CONCLUSIONS ported Grange's criticism of the working conditions at
the hospital. On July 20, 1978, additional followup letters
I. THE BUSINESS OF RESPONDENT in support of Grange's criticism of Respondent's working
conditions were published in the local newspaper. On or
Respondent is a hospital providing medical services to about July 20, 1978, Grange was responsible for circulat-
the general public at its facilities in Bar Harbor, Maine. ing a petition among his coworkers requesting the com-
Respondent has annual gross revenues in excess of munity and board of trustees of the hospital to investi-
$250,000 and annually purchases goods and supplies gate the working conditions at the hospital and bring
valued in excess of $50,000 per year from points outside about needed changes. Approximately 105 staff employ-
the State of Maine. I find that Respondent is an employ- ees signed the petition, including Supervisors Len Sweet,
er within the meaning of the Act and that it will effectu- orma Spurling, and Paula Knutsen. Grange gave a
ate the policies of the Act to assert jurisdiction in this copy of the petition to the Bar Harbor Times and an-
case. other copy was placed in Assistant Administrator Paul
1. THE ALLEGED UNFAIR LABOR PRACTICES O'Neill's box at Respondent's hospital with an attached
note from Grange requesting him to pass the copy of the
A. The Alleged Refusal To Rehire Grange During petition to Respondent's board of trustees. The petition,
1979 and 1980 with an editorial, and additional followup letters were
printed in the Bar Harbor Times on July 28, 1978.
1. Background and facts During August 1978, at Grange's request, a staff meet-
Respondent is a health care institution located in Bar ing was held at Respondent's hospital, which was attend-
Harbor, Maine, and is licensed for 66 acute patient care ed by the Bar Harbor Times' editor and by Christopher
beds. In September 1977, Grange was hired by Respond- Spruce of the Bangor Daily News. Director of Nursing
ent as a licensed practical nurse (LPN). Commencing Dunne, upon being informed that two newspaper report-
around May 1978, Grange engaged in discussions with ers wanted to attend the staff meeting, immediately
other staff members pertaining to low pay, poor benefits, checked for approval from Lotreck. Lotreck denied ap-
job security, and no seniority system, as part of the proval. Dunne stated that her concern was that no one
working conditions at Respondent's hospital. Grange, from management should stay at the staff meeting. Lo-
thereafter, complained about Respondent's working con- treck agreed and stated, "You know a lot of people on
ditions such as staff shortages, by bringing it to the atten- the board question why Mal Grange has been seen in
tion of Director of Nursing Louise Dunne, and Assistant your office prior to this meeting."
Director of Nursing Margaret Sprott. Grange also sub- In December 1978, Grange voluntarily left the employ
mitted signed written complaints about working condi- of Respondent to prepare for his state board examina-
tions and placed them in the hospital's suggestion box. tions to become a registered nurse. Grange took the ex-
Upon receiving no response to these complaints from aminations in February 1977 and was notified that he
the hospital's administration, Grange sent a letter to the was successful in passing the examinations as of March
editor of the Bar Harbor Times on or about July 3, 1978, 1979. During February 1979, Grange phoned Respond-
and it was printed in the newspaper on July 6, 1978. In ent's Director of Nursing Dunne and inquired about
general, the letter complained about working conditions summer employment as a registered nurse at Respond-
ent's hospital. Dunne responded that she had a nursing
Certain errors in the transcript are hereby noted and corrected. shortage on the night shift and offered Grange a position

ff
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i , ll
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i l l i i l
.
i i l i i i l r i t t l , 1978, r as responsible for circulat-
t l li t it f iliti i i . ti i i ti t
t l i l ti
, ll l i i l
l i , i i l t ff l
t t t f i . I fi t t t i l i t ti i i l i r i
i i a rli . l t . r
ate the policies f the ct to assert jurisdiction in this copy of the petition to the Bar Harbor Times and an-
c a se . t
I]. I I '
N e il l 's b o x at t' i l
ti
.

' it l, i s tt -
e d t h e B a r H a r b o r T im e s ' it r rist r
o f il . ir t r f r i
. D u n n
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e r s w a n t e d t o a t t e n t h e s t a f ,
t i -
D u n n e s ta t e d t h a t h e r t t
f r o m
t r e c k
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,
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fectu-Norma
MOUNT DESERT ISLAND HOSPITAL 591
immediately as a graduate nurse on the night shift begin- thing could be done about it and Dunne replied in the
ning in February 1979. Grange declined the offer of im- negative.
mediate appointment because his plans were indefinite. The final approval of all hiring at Respondent's hospi-
In a letter dated March 13, 1979, from Grange to tal must be by the hospital's administrator, Lotreck. As
Dunne, Grange requested an application and considera- noted in the Hospital's Personnel Policy Manual:
tion for employment. On or about March 27, 1979,
Dunne received a phone call from Grange inquiring Applicants will be given a preliminary interview by
about prospective summer employment with Respondent. their prospective department head to ascertain their
The discussion related to possible nursing positions avail- ability to meet the job requirements. Final approval
able and Dunne informed Grange that there were nurs- of the administrator is required prior to hiring new
ing positions available and specifically mentioned the personnel.
emergency room position on the 3 to II p.m. shift.uemergency room position on the 3 to oi p.m. shift. This policy was in effect at all times relevant to these
Dunne indicated that she would consider Grange hired
pending submission by him of an application. Dunne proceedigs.
complied with Grange's request by sending him an appli- On April 18, 1979, Dunne informed Lotreck that she
ce's rquest by sending him an appli- had contacted Grange and carried out Lotreck's instruc-cation on the following Monday, April 2, 1979. Prior to had contacted Grange and cared out Lotreck's nstruc-
Dunne leaving on vacation from March 31, 1979, tions, but that Grange was upset over Lotreck's decision
through April 15, 1979, she informed her assistant, Mar- not to hl re him and that Grange might take legl t action
garet Sprott, that she had a telephone conversation with pr18 97 a te as iss t to
_Grange and discussed the opening position in the emer- the department heads at the hospital requiring that all ap-Grange and discussed the opening position in the emer- plicants for employment go through the personnel de-gency room and that as far as she was concerned, Sprott partnts for employme nt go through the p ersonnel de
could°~ hire.-,~ Grange.partment before any final decision is made to hire such
comuld himreu G~range.~ applicant. On or about May 2, 1979, Lotreck instructed
On or about April 3, 1979, Grange phoned Respond- Respondent's assistant administrator, Paul O'Neill, to
ent's hospital and spoke to Sprott. Grange mentioned contact the administrator of Sonagee Estates and inform
that he had spoken to Dunne the previous week andt t s t t r i him that it would be in the best interest of Sonagee if he
knew that she was now on vacation, but that he had id not hire Grange. This action is discussed at a later
filled out an application and would like to apply for the point in this decision.
emergency room, 3 to 11 p.m. shift for the summer of In September 1979, range went back to Portland,
1979. Sprott replied that she considered Grange hired Oregon, which he considered his second home. On
and inquired as to when he could report. Grange re- March 4, 1980, Grange applied by mail as a registered
sponded that he was not sure of the exact date but that it nurse at Respondent's hospital in emergency room or
would be sometime in June. Sprott requested that he med./surg., and indicated a willingness as to flexibility in
notify them of the exact date he would report. Follow- work and hours for summer employment. Respondent's
ing this telephone conversation, Sprott discussed with new director of nursing, Dorothy Osborne, responded in
staffing secreatry Eileen Holmes putting Grange on the a letter dated April 6, 1980, informing that Respondent
schedule for the 3 to 11 p.m. shift in the emergency did not need any summer nurses, nor did it anticipate the
room and decided to wait until Grange let them know need for any nurses, but that it would keep Grange's ap-
the exact date he would start. On April 4, 1979, Grange plication on file. Immediately prior to sending this re-
gave his completed application form to Mary Rewa, a sponse to range's inquiry, Osboe had spoken to Lo-
nurse at Respondent's hospital, who delivered it to the treck. Although Lotreck nver told Osborne not to hire
nursing office. Grange at this point, Osborne concluded on her own
On or about April 17, 1979, Sprott informed Dunne that Lotreck would probably not give final approval to
that she had hired Grange and that he would be inform- the hiring of Grange while other qualified candidates
ing them of when he could report to work. On April 17, were available. Because of a prior commitment made at
1979, Dunne informed Lotreck that Sprott had hired the end of the prior summer's employment, the hospital
Grange while she was on vacation. Lotreck became did hire one LPN, Elizabeth Muckel, as a summer em-
upset and replied that he did not see how Sprott could ployee. The hospital prefers to hire non-RN's to assist in
have ever done such a thing with all the trouble Grange the summer. Statistics introduced by Respondent indicat-
had caused the hospital the previous summer.2 Lotreck ed that a greater percentage of Respondent's nursing
then instructed Dunne to get in touch with Grange im- care is delivered by registered nurses in institutions of
mediately to tell him there would be no position availa- similar size. The percentage of nursing care delivered by
ble for him at Respondent's hospital. Dunne phoned LPN's is lower than at other institutions. With the RN
Grange on April 17, 1979, and disclosed the contents of staff at a comparatively high level, and an increase in pa-
her conversation with Lotreck. Dunne mentioned that it tient census in the summer, the hospital's position is that
was Lotreck's position that Respondent had more than it is reasonable to respond to the increased demand by
enough applicants for nursing positions and did not an- hiring less costly aides and LPN's. There was no evi-
ticipate needing Grange. Grange inquired whether any- dence presented to show that the hospital hired addition-
al, nonspeciality RN's for regularly scheduled shifts
Grange's letter, attached as "Appendix B [omitted from publication]," during the summer.
and the public reaction to the letter noted above led to the hospital's de-
cision to terminate its Capital Fund Drive, evidently causing the hospital The hospital used the services of The Traveling Nurse
serious financial harm. Corps (TNC), in the winter of 1979-80. TNC is similar
,
i li i i t r i
t h e ir t t t t i t ir
j i t . i l r l
o f t h e
r i 11 i Ti p wa i e a al t r tte
i r This policy was in effect at all times relevant to these
i i i i li ti . On A
li it r ' t i i li- O ncotce 18 Ga197 9g D un n e n f oa ni d Lo t r ec k t h at s h e
ti il , . i th a d u rse t tr ' d t i
l i ti fr r 31, 1979, tions, but that Grange was upset over Lotreck's decision
il , i t t,
n o t to h l re h lm an d t h at Orange m igh t ak e lea c tt a n .
throgh pri 15 199, he nfomedherassstat, ar- On April 18, 1979, a directive was issued by Lotreck to
r t r tt, t t t l ti i the d r n s a th ehospital reqr to
i i p epants at thouphta h person e de-
r t t f r s r . r tt nt f anymfnt is t ere suc° ',..-, * ~~~~~~~~~~p rtment f l i i
could hire Grange. l t
i , i t i l ill
' i l i i
t
ti , t t t he had did not hire range. This action is discussed at a later
r li ti l li to apply for the point in this decision.
r r , . . if t G
. r tt r li t t i i , i i i
i i l ,
t t t i l
ti llingne i ili
tif t f t t t l t. ll l '
i t i t l ti , i i i
t ffi r tr il l i i
l if
r i t it til l t t ses, i
t t t l t rt. il , , li ti il i l i
i l li ti Gra ' i sborn
r t t' it l, li it t t . lt ever
i t i i l
i l l l
i li i
i t l t il , il l . i i t
, i i t i ' l t it l
ti l
li l i l i t
i ll l ti i i t
i l i
l
i t l ll i i i i l
i l i i
i r ti l l
ti . i i
' i t l i
li i i i i
i . i l i i
l eciality l rl l if
' range's S
goethoupht
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i
,
amt d
d q song
l il
i
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to "Manpower, Inc." in that it can provide experienced 2. Contentions and conclusions
registered nurses with speciality skills on a temporary Respondent's initial defense in this proceeding is thatRespondent's initial defense in this proceeding is thatbasis. TNC nurses were used to fill vacancies for which Grange's actions were on an individual basis only, and
the hospital was attempting to hire permanent RN's with not on behalf of other hospital employees. The record
speciality skills. No general duty (alternately referred to shows this to be cearly wrong. Grange's letter to the
as med./surg.) nurses were hired from TNC. Only those Bar Harbor Times clearly makes reference to working
who had experience in specific speciality skills were re- conditions of all of the nursing staff. Moreover, his abili-
quested by Respondent. Specifically, nurses were pro- ty to organize a staff meeting attended by a large number
vided by TNC who had experience in intensive care and of the hospital nurses and subsequent ability to success-
obstetrical services as well as those who had experience fully circulate a petition complaining of working condi-
in supervising a shift on a floor (charge nurse). Both tions reflects the support Grange had from his cowork-
nursing Directors Dunne and Osborne agreed that those ers. Thus, I find that Grange's actions did constitute con-
RN's with "specialities" are not always able to exclusive- certed activities on behalf of the hospital's employees
ly practice within these "specialities." Hence, when there generally.
are no patients in need of coronary or obstetrical care, The next and most serious question raised is whether
RN's with specialities may be assigned to assist in Grange's concerted activities are protected under the
med./surg., or other areas of the hospital. Act.
On June 14, 1980, Grange visited the Bar Harbor area An analysis of the discharge or failure to rehire an em-
and spoke to Respondent's staff doctor, William Horner. ployee for activities which are protected under Section 7
Dr. Horer informed Grange that as far as he knew begins with the Supreme Court's decision in N.L.R.B. v.
there was an opening at Respondent's hospital for a RN Local Union No. 1229, International Brotherhood of Elec-
on the 3 to 11 p.m. shift in the emergency room. Dr. trical Workers (Jefferson Standard Broadcasting Company),
Horer further stated that the emergency room was busy 346 U.S. 464, 481 (1953). In that case, the employer dis-
enough, that it was Respondent's policy to have a full- charged striking employees who distributed handbills dis-
time nurse in the emergency room on the 7 a.m. to 3 paraging the quality of the employer's product and its
p.m. day shift and 3 to 11 p.m. shift, and that he was business policies in a manner reasonably calculated to
concerned that no one had been hired as yet. harm the company's reputation. The Supreme Court held
On June 17, 1980, Grange approached Respondent's that while Section 7 did safeguard the rights of employ-
director of personnel, David Matlack, and inquired about ees to engage in concerted activities for mutual aid or
the possibility of being hired by Respondent. Matlack re- protection, Section 7 was not intended to "weaken the
plied that Respondent was not hiring any nurses for underlying contractual bonds and loyalties of employer
summer employment, but were seeking to hire nurses and employee." However, as noted in the dissent by Jus-
who would stay over the winter, particularly speciality tices Frankfurter, Black, and Douglas:
nurses. Following his conversation with Matlack, Grange The Board and the courts of appeals will hardly
went to speak with Director of Nursing Osborne. Os- find guidance for future cases from this Court's re-
borne indicated that the hospital was not looking for versal of the Court of Appeals, beyond that which
summer applications and that her most pressing need was the specifc facts of this case May afford.
night-shift nurses, particularly speciality nurses for full-
time employment. Grange countered that he knew that As predicted in the dissent in Jefferson Standard, the
Elizabeth Muckel was being employed for the summer cases following it determining whether a particular activ-
only and was basically a med./surg. nurse. Osborne ity was protected turn significantly on the facts. Re-
noted a prior commitment to Muckel. spondent relies on the Board's decisions in Coca Cola
On or about June 23, 1980, Grange visited Respond- Bottling Works, Inc., 186 NLRB 1050 (1980), and Fire-
ent's hospital and met with Osborne again. At this meet- house Restaurant, 220 NLRB 818 (1975), two cases in
ing, Grange changed his application from one seeking which an employee or employees publicly alleged that
summer employment to one seeking full-time employ- their employers' product was harmful to their customers'
ment. Osborne responded that she would get in touch health. In both cases, the activities were found to be un-
with Grange. On June 25, 1980, Grange phoned Osborne protected. It also cites American Arbitration Association,
to inquire about whether a decision had been made about Inc., 233 NLRB 71 (1977), and an advice memoranda
his job application. Osborne replied that the only kind of issued by the Division of Advice, University of Southern
nurses Respondent wanted were speciality nurses and California Security Department, 99 LRRM 1728 (1978),
that it did not need med./surg. nurses at all. The hospital wherein it was concluded that remarks made during tele-
did not hire any med./surg. registered nurses during the vision interviews by campus security officers which were
summer of 1980. However, Osborne did provide critical of security conditions on the university campus
Grange's name to Maine Coast Memorial Hospital, a were not protected. Associate General Counsel Datz
concluded that the remarks made "would tend to embar-
hospital of similar size in Elsworth, Maine, located 20luded that he remarks made would tend to embar-
ass the university's reputation, community relations, andmiles from Mount Desert Island Hospital. Grange reject- seurity
ed employment at Maine Coast Memorial and aftere ema Mine C t General Counsel relies on a line of cases includingspending the summer in Bar Harbor, returned to Oregon. ne C r ie 3
United Parcel Service, Inc., 234 NLRB 223 (1978), Spring-

r i t r rs s it i lit ill t .. . ene i is t. °. _,.„-, , , c.,, * r ,* i~~Respondent
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,

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t t ri t l -
i t ire ./s r . r ist r rs s ri t
v is io n i t i it
l i l w e r e n o t
A s so c at e G e n er a l o un sel D a t z
i l i cnluded t t r r l t t r-
*i r »* . T» - i i -i *. i .- * s
it' r
security."
,.-., *r~~~ni- ^ j>/->~~General l li li i l i t i r r r, r t r t r . G e C n r o a ln of cInit , ., ,
s
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MOUNT DESERT ISLAND HOSPITAL 593
field Library and Museum Association, 238 NLRB 1673 activity of Grange were protected. In Richboro Commu-
(1979), and The Reading Hospital and Medical Center, 226 nity Mental Health Council, 242 NLRB 1267 (1979), an
NLRB 611 (1976). In Springfield, an employee of the As- employee was denied a promotion because of statements
sociation published an article in the union newsletter made in a letter which was distributed to an assortment
which stated, inter alia, that Respondent's chief adminis- of agencies which funded and/or reviewed the employer.
trator was: The Administrative Law Judge found that portions of
the employee's letter criticizing the employer's adminis-
. a man who never "lost contact" with working tration and chairman of the board were unprotected. The
professionals because he never had it to begin with. Board disagreed, finding that the purpose of the letter
He is simply a man who, when he lost his job at was to complain about the discharge of a fellow employ-
Forbes & Wallace, was put on a form of welfare- ee and that the criticism of the employer's operation
for-the-rich courtesy of his friends on the Board offor-the-rich courtesy of his friends on the Board of were merely cited in support of his major contention that
Trustees. the charging party's fellow employee had been wrongful-
In that case, Respondent argued that the employee went ly discharged.
too far, that her statements were libelous, per se, that she Another case in which the activity of health care em-
insulted a management official, and that such statements ployees was found to be protected was Community Hos-
by an employee were neither acceptable nor permissable. pital of Roanoke Valley, Incorporated v. N.LR.B., 538
In reversing the Administrative Law Judge who agreed F.2d 607 (4th Cir. 1976), enfd. 220 NLRB 217 (1975).
with Respondent, the Board stated at 1673-74 that: The dispute arose in the context of an organizational at-
tempt by the Virginia Nurses Association of registered
Clearly the Administrative Law Judge erred. nurses at Roanoke Hospital. The charging parties were
Specificity and/or articulation are not the touch- identified as leaders of the organizational effort who had
stone of union or protected concerted activity. made statements on television to the effect that there was
Rather, the issue to be addressed is the question of no RN coverage during certain shifts, which harging
whether or not the comments are related to con- parties attributed to an ongoing dispute over salaries and
certed or union interests. Once the concerted nature benefits. The Administrative Law Judge found, withbenefits. The Administrative Law Judge found, withof the words is established (as formed by the Ad-of the words is established (as formed by the Ad- Board and court approval, that the public outburst was
ministrative Law Judge), Respondent had the caused by the employer's coercive conduct and that the
burden to show that the words were published with statements made concerning patient care created no
knowledge of their falsity or with reckless disregard c ause for alarm b the emploer and tere reated
of whether they were true or false. In Letter Ca- cause for alarm by the employer and, therefore, theof hether they ere true or false. In Letter Carri- statements were protected.
ers, 418 U.S. at 283, the Supreme Court stated:statements were protected.
e, 4 U at 2 te S eme Cout stated: With the teaching of the foregoing cases in mind, I
~~~[footnote omitted] ~have carefully reviewed the letter of Grange which is at
But Linn recognized that federal law gives a the heart of this controversy. I find that the writing of
union license to use intemperate. abusive, or insult- this letter as well as Grange's subsequent activity, consti-
ing language without fear of restraint or penalty if tutes protected activity. Although the letter does attack
it believes such rhetoric to be an effective means the hospital's safety levels and administration, the basis
to make its point. [Emphasis supplied.] for those attacks is closely tied to the working conditions
of the nurses at the hospital. Grange's allegations that
* * * * * "only very minimal patient care is given and safety
standards are stretched to the limit and beyond" are im-
In short, Glendon's message to her fellow em- mediately tied to working conditions, i.e., poor staffing,
ployees is that they have work-related problems and overwork, and poor pay. The letter also notes that earli-
suggests that one of the reasons for these problems er, nonpublic suggestions and complaints had evidently
is the manner in which Respondent's administrators fallen on deaf ears with the hospital's administration and
are chosen. Respondent's management may very board of trustees. I believe that it is clear from the tenor
well have been offended by Glendon's "rhetorical of the article that its intention was not to harass, dispar-
hyperbole," but, as the Court said in Linn, supra at age, or harm Respondent, but simply to force the admin-
63: istration to take heed of its employees complaints about
e mt r sive s h e s im nity wages and working conditions at the hospital.. . . the most repulsive speech enjoys immunity
provided it falls short of a deliberate or reckless Respondent, acting through its spokesman, Administra-
untruth. tor Lotreck, admitted that the reason Grange was not
employed by Respondent in June 1979 was because of
Since Glendon's article clearly is protected concert- the newspaper articles that appeared in the Bar Harbor
ed union activity, immune from restraint or interfer- Times during July 1978, all of which emanated from
ence under state libel laws, a fortiori this same con- Grange's initially published letter of July 6, 1978. The re-
duct is immune from restraint or interference by an jection of Grange's employment for the summer of 1979
employer's disciplinary actions. [Footnote omitted]. by Lotreck created controversy among the administra-
tion's personnel as manifested by the pharmacy, thera-
Two other cases were cited by Respondent which peutic, and patient care committee meeting held on April
would support a finding that the letter and subsequent 18, 1979; joint conference committee meeting held on
), ),
).
t e l 's l tt
.
is si l , l st i j t t i ll
ll , t '
n i. * . *'. ,.T e- i cue owere erely cited in support f his j r t ti t t
Tru s e e s . t i t ' ll l r f l-

l t . . . . .,
. ).
T h e
t t t
Il
cifi it / ti l ti r t t t i ti i l t i ti l ff t
at er, the issue t be a resse is t e sti f r ri rt i ift , i c r i
whether or not the comments are related to con- . ., ., ,oerg - uin . eti - . ,. , ,hc . " °in
hethe or not the com t a ted to c parties attri te t an i is te r s l ri s
certed or union interests. Once the concertednat
f t r s is t li o an c a l, ta t pl o u was
i i tr ti Judge), espondent had the Board aid court approval, that the public outburst wasminitratve Lw Juge),Respnden adthe caused by the e ployer's coercive conduct and that the
burden t sho t t t r s r lis it s a t e ae c erig e c r eat
k l f t ir f lsity r it reckless disregard tcause fo m a de concerning patient care created no
f w t r t w r tr f l . I tt i- s n d. n d ' therefore, the
. ated: state",ents
[footnote omitted] ith the t i f t f i
have carefully revie ed the letter of range hich is at
t ,
."only
'
63 :
. . .the most repul peec njoy i mu. .. n , . , * -
provided it falls short of a deliberate or reckless espondent, acting t r its s es a , i i tr -
tr t . t r tr , itt t t t r r t
t h e
, T i m e s

n
midnistrative s w thatdthe), wrespo t p ihad ithe s d t m l r' r i t
o ha he o d e e pub hed h aeet ecnenn ain aecetdn
cautem nts made
t ped a
m
eac i
s
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 8, 1979; executive committee meeting on May 9, reason for not rehiring him does not reflect an employee
1979; and medical staffing meeting on May 10, 1979. At so unhappy with his position that one would not rehire
the joint conference meeting held on May 8, and attend- him for that reason alone. Respondent offered a signifi-
ed by Lotreck, among others, Lotreck was quoted in Dr. cant amount of testimony regarding the availability of
Robert Beekman's (an observer) testimony to have stated positions at the hospital for which Grange was not quali-
relative to the subject of Grange, that it was an act of fied and conversely the lack of positions for which he
incompetence to hire someone who had been a trouble- was qualified. Respondent's Director of Nursing, Os-
maker, who had stirred up the nurses, who had taken borne, testified that Grange, on or about June 26, 1980,
our problems to the newspapers and the public. Lotreck was not hired as a permanent full-time registered nurse
further stated at the meeting that if he had known that because his qualifications did not meet Osborne's stand-
Dunne had hired Grange, Lotreck would not have or- ards. This position is weakened significantly because sub-
dered her to tell him that there was no position; but, sequent to Grange's denial for permanent full-time em-
Dunne had told Lotreck that Grange had only inquired ployment by Respondent on or about June 26, 1980, Os-
and no position had been offered to Grange. Dunne, who borne offered other applicants registered nurses' positions
was present at the meeting, accused Lotreck of not tell- that Grange was qualified to fill. According to the testi-
ing the truth in a heated discussion that followed, result- mony of Osborne's predecessor, Louise Dunne, Grange
ing in Dunne nearly offering her resignation. was qualified during the summers of 1979 and 1980 to fill
Respondent urges that the primary reason for Grange the nurse position of med./surg. charge nurse and/or
not being hired was based on Grange's exit interview general nurse. He was also qualified to be trained as an
which was critical of Respondent's administration. OB or ICU nurse. Respondent hired an applicant, Strat-
Review of the exit interview reveals on its face that ton, who started on July 7, 1980, as a charge nurse. She
Grange generally liked the hospital, his coworkers, and had never previously been employed by Respondent.
supervisors, and the nature of his work. It also reveals Whatever may be the actual case with regard to the hos-
that he was critical of the hospital's top administration pital's desire to hire only nurses with specialized training,
because of working conditions, pay, and the other mat- I find the true state of affairs with respect to Grange to
ters complained about in the letter to the newspaper and be that the hospital would not voluntarily rehire him re-
the petition subsequently circulated among the nursing gardless of his qualifications. Accordingly, for all the
staff. I find that from the record as a whole that Re- reasons set forth above, I conclude that Respondent's re-
spondent refused to rehire Grange for the summer of fusal to rehire Grange constitutes a violation of Section
1979 and thereafter primarily because of Grange's pub- 8(a)(l) of the Act.
lished letter in the Bar Harbor Times of July 6, 1978, and The General Counsel has also alleged that Respondent
the concerted activity that resulted therefrom. As noted has violated Section 8(a)(4) of the Act in that the first
earlier, the hospital blames Grange and the publicity sur- charge filed in this proceeding by Grange was also
rounding the hospital that emanated from his July 6, reason for the hospital's refusal to rehire him subsequent-
1978, article as causing the hospital to prematurely end ly. I cannot find any substantial evidence in this record
its capital fund drive. I find that it is unfair to lay the to support this charge. As I have noted above, it is my
death of the drive solely at the feet of Grange. Had his finding that the hospital made a virtually irrevocable de-
accusations about working and other conditions at the cision not to rehire Grange as a result of his protected
hospital been unfounded or patently false, the continuing concerted activities. Certainly the filing of a charge with
criticism of the hospital that resulted from the article the Board by Grange in 1979 did nothing to change the
would not have occurred. hospital's position; however, there is no evidence to es-
Are there any legitimate business reasons for not tablish that it modified or strengthened this position. Ac-
hiring Grange unrelated to his protected concerted activ- cordingly, I cannot find that Respondent has violated
ity which would justify Respondent's refusal to rehire Section 8(aX4) of the Act.
him? Under the recently formulated test in Wright Line,
a Division of Wright Line, Inc., 251 NLRB 1083 (1980), B. Blacklisting of Grange
where there is a possibility of dual or "mixed" motives in
the action taken by an employer, one such being proper Respondent's administrator, Lotreck, on or about May
under the law, and the other being improper, the burden 2, 1979, instructed his assistant administrator, Paul
is upon the: O'Neill, to contact the administrator of Sonagee Estates
Nursing Home and to inform him that it would be in the
. . the General Counsel [to] make a prima facie best interest of Sonagee if he did not hire Grange. In
showing sufficient to support the inference that the view of the fact that nursing positions in the small com-
protected conduct was a "motivating factor" in the munity of Bar Harbor, Maine, are limited, Respondent
employer's decision. Once this is established, the could naturally assume that Sonagee would be one of the
burden will shift to the employer to demonstrate few prospective places of employment in the immediate
that the same action would have taken place even area that Grange could possibly apply. According to the
in the absence of the protected conduct. uncontroverted testimony of Richird Collier, administra-
tor at Sonagee, he received a telephone call from O'Neill
I have heretofore found that Grange's protected activi- on or about May 4, 1979, and was informed by O'Neill
ty is a primary reason for the employer not rehiring him. that Grange was not going to be hired at Respondent's
Grange's exit interview urged by Respondent as the hospital as he was a troublemaker who has caused the
,
f
,

.
.
' - ( )(l) f t e ct.
, ,
t t .
i t it l , '
, rti l s si t it l t r t r l l . I t fi t ti l i i t i
. i l t t i I t , it i
t f t ri l l t t f t r . i i i t t t
ti t r i t iti t t i i t t
s it l f r t tl f l , t ti i t .
riti is f t s it l t t r lt t ti l t
it l' iti ; , t i i t -

l t
t' r f s l t rehire Section 8(a 4) of the ct.
, ,
t

...
MOUNT DESERT ISLAND HOSPITAL 595
hospital a lot of grief. He suggested that Collier not hire CONCLUSIONS OF LAW
Grange. Collier immediately informed his director of 1. Mount Desert Island Hospital is an employer en-
1. Mount Desert Island Hospital is an employer en-nursing, Donna Cameron, about O'Neill's telephone con- gaged in commerce within the meaning of Section 2(2),
versation. The sum and substance of this conversation ( and ( of te Act
was also communicated by Collier to Grange on May 7, t .
was also communicated by Coier tno Grange on May 7, 2. By refusing to rehire its former employee, Malachy1979. On May 9, 1979, Collier then communicated the Grange, since June 1979 because of his protected con-
content of his telephone conversation with O'Neill to certed activities, Respondent has engaged in unfair labor
Dr. Robert Beekman. The testimony clearly reflects an practices affecting commerce within the meaning of Sec-
attempt by Respondent to blacklist Malachy Grange tions 8(a)(1) and 2(6) of the Act.
from employment with an prospective employer in the 3. By attempting to blacklist its former employee, Ma-
Bar Harbor, Maine, area. As I have found that Respond- lachy Grange, with a prospective employer in the Bar
ent has refused to rehire Grange because of his protected Harbor, Maine, area, Respondent has engaged in and is
concerted activity, I likewise find that the attempt to engaging in unfair labor practices within the meaning of
blacklist Grange in Bar Harbor was motivated by this Section 8(a)(1) of the Act.
same concerted activity. Respondent's action in this 4. Respondent did not engage in unfair labor practices
regard further violated Section 8(aXl) of the Act. Harold within the meaning of Section 8(aX4) of the Act as a sep-
Jackson, a sole proprietor, d/b/a Truck and Trailer Service, arate violation of the Act by refusing to rehire its em-
239 NLRB 1070 (1978), and Professional Ambulance Serv- ployee Malachy Grange.
ice, Inc., 232 NLRB 1141 (1977). The fact that, subse- Upon the foregoing findings of fact, conclusions of
quently, Respondent referred Grange to another hospital law, and the entire record, and pursuant to Section 10(c)
for employment does not change my finding. It is entire- of the Act, I issue the following recommended:
ly consistent with Respondent's desire to get Grange out
of Bar Harbor that it find him a job in some other com- ORDER 3
munity. The Respondent, Mount Desert Island Hospital, Bar
Ill. THE REMEDY Harbor, Maine, its officers, agents, successors, and as-
signs, shall:
As I have found that Respondent did engage in and is 1. Cease and desist from:
engaging in unfair labor practices within the meaning of (a) Refusing to rehire or otherwise discriminating
Section 8(aXl) of the Act by refusing to rehire and at- against employees in regard to hiring or tenure of em-
tempting to blacklist Malachy Grange, I shall recom- ployment or any other term or condition of employment
mend that it cease and desist therefrom and take certain because they engage in concerted activities protected by
affirmative action designed to effectuate the policies of Section 7 of the National Labor Relations Act.
the Act. (b) Attempting to blacklist its employees or in any like
I have found that by attempting to blacklist Malachy or related manner interfering with, restraining, or coerc-
Grange with a prospective employer in the Bar Harbor, ing employees in the exercise of their rights to engage in
Maine, area, Respondent restrained and coerced its em- or refrain from engaging in any or all of the activities
ployee in the rights given to him in Section 7 of the Act specified in Section 7 of the Act.
and in violation of Section 8(a)(l) of the Act. I recom- 2. Take the following affirmative action which is nec-
mend that it cease and desist from attempting to blacklist essary to effectuate the policies of the Act:
Malachy Grange. (a) Employ Maiachy Grange at its Bar Harbor, Maine,
I have found that Respondent unlawfully refused to hospital facility in any nursing position for which
rehire Malachy Grange because he engaged in protected Grange is medically qualified. If no such position exists
concerted activities in violation of Section 8(a)(l) of the at this time, employ Grange for the first available nurs-
Act. I recommend that Respondent be ordered to reem- ing position for which range is qualified.
ployee Grange at its Bar Harbor, Maine, hospital facility (b) Make Malachy Grange whole for any loss of earn-
in any nursing position for which Grange is medically ings he may have suffered as a result of Respondent's re-
qualified. If no such position exists at this time, I recom- fusal to reemploy him in the manner set forth n ths de-
mend that Respondent be ordered to offer Grange em- cision entitled The emedy.
ployment for the first available nursing position for (c) Preserve and, upon request, make available to the
which he is qualified. I shall further recommend that Re- Board or its agents, for examination and copying, all
spondent be ordered to make Grange whole for any loss payrol recordso , socoialsecuty payment records time-
of earnings he may have suffered as a result of Respond- crds necessary to analyze the amount of backpay duecords necessary to analyze the amount of backpay dueent's unlawful refusal to hire him since June 1979, less under the terms of this remedial Order.
net earnings to which shall be added interest to be com-
puted in the manner described in F. W Woolworth Com- In the event no exceptions are filed as provided by Sec. 102.46 of the
pany, 90 NLRB 289 (1950), and Florida Steel Corporation, Rules and Regulations of the National Labor Relations Board, the find-
231 NLRB 651 (1977). ings. conclusions, and recommended Order herein shall, as provided in
On the basis of the above findings of fact and the Sec. 102.48 of the Rules and Regulations, be adopted by the Board andOn the i t i i f t t ep eo g dn m c nt m i f i 2Oentihorde bsis omth a bovseusof fc become its findings, conclusions, and Order, and all objections thereto
entire record in this case, I make the following. shall be deemed waived for all purposes.
. reCONCLUSIONS
r . lli r i i t l i i i t . rt I loer*e
* r\ <-* i.. /V».T *n> » i u1. i l l
r i , r , t ' ill' t l - e r it i t i ti ( ),
ti ti ),ad 7) he .
- . ,, ,
ier o.
. . , G s J 17 b o his p
t t f i t l r ti it ' ill t ti iti ,
. t . t ti l l
l t t.

, ,
, li i i t t t tt t t i i fair la r ractices ithin the eaning of
t i ti ( )(l) f the ct.

(aX()
,
),
.
3
n t y . t, t s rt Isla s ital, ar
Ill. , i , it , , ,

I

a t t h is , t fir t il l rs-
f o r w h ic h G
i l ili b M ak l f l f r -
i i i i l f l ' r -
li f i
f us a l t o lo i m i t r se t f rt i t is -
end that espondent be ordered to offer range e - c )s Po n e n tst l ed uT h e r ,aedyee
l y t f r the first v il l rsi siti f r (c ) P r e se r v e a n d s, fpor equestx k v il l t t
i i lifi . I ll f rt r r t t - pBoard r it t , f i ti i , ll
c t l ;
0 11 r e c o r d si so c i 11 se c u ri ty ye t r c r s, ti e-
sponentbe oderd omak Grage holeforany oss cards, personnel records and reports, and all other re-
f r i s he y v s ff r as a r lt f s - c o r d snecessar t a na a cp e.. , - , , - , . .. . . , ,„,' ary l f y
l f l l i d
r i ll
ri . lv
, , n
). ,
t f f s f ac a he sec. 102.48 of the Rules and Regulations, be adopted by the Board andOn thre basis of the above findings of fact and the beco e its fndings, conclusions, and rder, and all objections thereto
tir rd i t i cawe, I t f ll i . shall e ee e ai e for all purposes.
t
reaedy.o

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its hospital facility, copies of the attached shall be posted by it immediately upon receipt thereof,
notice marked "Appendix." 4 Copies of said notice on and be maintained by it for 60 consecutive days thereaf-
forms provided by the Regional Director for Region 1, ter, in conspicuous places, including all places where no-
after being duly signed by Respondent's representative tices are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notice is not al-
In the event that this Order is enforced by a Judgment of a United tered, defaced or covered by any other material.
States Court of Appeals, the words in the notice reading "Posted by (e) Notify the Regional Director for Region 1, in writ-
Order of the National Labor Relations Board" shall read "Posted Pursu- ing, within 20 days of the date of this Order, what steps
ant to a Judgment of the United States Court of Appeals Enforcing an Respondent has taken to comply herewith.
Order of the National Labor Relations Board."
'
.In
t e r e d , d e f a c e d , o r c o v e r e d o th e r m a t e r i a l .
Steps
t t t t it t t l i