Mt. Carmel Hospital

National Labor Relations Board - Board Decisions

Apr 10, 1981

255 N.L.R.B. 833 (N.L.R.B. 1981)

MT. CARMEL HOSPITAL 833
Mt. Carmel Hospital' and Service Employees Local
513, affiliated with Service Employees Interna-
tional Union, AFL-CIO, CLC. Case 17-CA-
9642-2
April 10, 1981
DECISION AND ORDER
On December 31, 1980, Administrative Law
Judge James L. Rose issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a brief in support thereof, and the
General Counsel filed an answering brief.
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, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Mt. Carmel
Hospital, Pittsburg, Kansas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order.
The name of Respondent appears as amended at the hearing.
Although we believe the Administrative Law Judge found that em-
ployee Frakes was discharged on April 14, 1980, he did not expressly
make such a finding. In order to avoid unnecessary confusion, we so find.
On April 14, 1980. Frakes was handed a termination letter dated that day,
which stated, "[Y]ou have been terminated from employment at Mt.
Carmel, effective March 12, 1980." We note that the record indicates that
the decision to discharge Frakes was made between April 3 and 11, 1980;
that the decision was not implemented until April 14, 1980; and that
Frakes did not receive notice of his termination until April 14. 1980. On
the facts of this case, we find that Frakes was discharged on April 14,
1980, and that the termination letter does not alter the date of the dis-
charge.
Chairman Fanning does not find it necessary to rely upon District 1199.
National Union of Hospital d Healthcare Employees, R WDSU. AFL-CIO
(First Healthcare Corporation, d/hb/a Parkway Pavilion Healthcare), 222
NLRB 212 (1976), in which he dissented. Member Jenkins would find Pa-
vilion Healthcare to be inapposite on the facts because the proscriptions of
Sec. 8(g) of the Act are directed at labor organizations and not at the
actions of individual employees which is the situation presented here.
Member Zimmerman agrees that Parkway Pavilion Healthcare is inapplica-
ble to this case; he therefore finds it unnecessary to determine whether he
would adhere to the principles enunciated in that decision were it to
apply.
The Administrative Law Judge relied upon Montefiore Hospital and
Medical Center, but inadvertently miscited the Board volume in which
that case appeared. The correct Board citation is 243 NLRB 681 (1979).
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This
matter was heard before me on November 6, 1980, at
Pittsburg, Kansas, upon the General Counsel's complaint
255 NLRB No. 110
which alleged that on April 14, 1980,t the Respondent,
Sisters of Saint Joseph's d/b/a Mt. Carmel Hospital,2
discharged Dennis R. Frakes in violation of Section
8(a)(1) of the National Labor Relations Act, as amended,
29 U.S.C. §151, et seq.
The Respondent contends that Frakes was discharged
for cause-for engaging in the unprotected act of leaving
his duty station on March 12 to join a strike by regis-
tered nurses. Frakes was not at the time a registered
nurse and was not in the bargaining unit.
Upon the record as a whole, including my observation
of the witnesses, briefs, and arguments of counsel, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent (herein sometimes the Hospital) is en-
gaged in the operation of a general hospital delivering in-
patient and outpatient health care services to the general
public living in the vicinity of Pittsburg, Kansas. In the
course of this operation, the Respondent annually re-
ceives revenues in excess of $500,000, and annually re-
ceives directly from points outside the State of Kansas,
goods, products, and materials valued in excess of
$50,000. The Respondent admits, and I find, that it 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 meaning of Section 8(g) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Service Employees Local 513, affiliated with Service
Employees International Union, AFL-CIO, CLO (herein
the Union), is admitted to be, and I find is, a labor orga-
nization within the meaning of Section 2(5) of the Act.
Ill. THE ALI.LEGED UNFAIR LABOR PRACTICES
A. Background Facts
At all material times, the Union has been the exclusive
collective-bargaining representative for a unit of the Re-
spondent's registered nurses. 3 During the course of nego-
tiations between the Union and the Respondent for a col-
lective-bargaining agreement, the Union determined to
engage in an economic strike beginning March 10, which
intention was duly transmitted to the Respondent and the
appropriate state and Federal agencies as required by
Section 8(g) of the Act. The Union subsequently agreed
to a 48-hour extension; and in fact commenced the strike
at 9 a.m. on March 12. Sister Agnes Weber, the president
and administrator of the Respondent, testified that there
are approximately 80 to 85 nurses in the bargaining unit
of which about 37 to 39 participated, at one time or an-
other, in the strike.
All dates are in 1980 unless otherwise indicated.
2 The name of the Respondent appears as corrected at the hearing.
a The unit description is: All full-time and regular part-time registered
nurses employed by the Respondent at the facility, excluding all office
clerical employees. nurses' aids. LPNs, technicians. housekeeping em-
ployees, maintenance employees. food service employees, guards and su-
pervisors as defined in the Act, and all other employees
MT. CARMEL HOSPITAL
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 12, Dennis Frakes was a licensed practical
nurse (LPN) and had reported to work at 7 a.m. He was
assigned to the intensive coronary care treatment unit
along with 2 registered nurses, a nursing assistant, and
the supervisor. When the strike deadline arrived, the
nurses in the ICC unit determined to go out and Frakes
joined them. As they were leaving work, Frakes was ad-
vised by his supervisor, Gene Salisbury, that he was "not
covered."
Although at the time of the strike Frakes was a LPN
and was not included in the bargaining unit, he had
voted in the election the previous August because he
was a "graduate nurse," which is a kind of limbo classifi-
cation. That is, he had completed course work to
become a registered nurse and had taken the state exami-
nation, but the result was not yet known. Subsequent to
the election, Frakes was notified that he had failed the
examination and pursuant to policy, the Respondent re-
classified him as an LPN.4 In February, Frakes again
took the state examination and at the time of the strike
had not yet been notified of the result. (In late March or
early April he learned that he again had not passed. He
took the test a third time in July and was successful.)
In the early hours of April II, the parties reached an
agreement. It was ratified, the strike ended, and the
nurses returned to work on April 14.
On that day, Frakes came to work but was advised by
Karen Bartol, the director of nursing services, that he
was being discharged. In material part, the termination
letter reads:
This is to inform you that you have been terminated
from employment at Mt. Carmel, effective March
12, 1980, because on that date you walked off your
job and abandoned the patients assigned to you and
for whom you had accepted responsibility at the
start of your shift.
Sister Agnes, however, testified that the decision to
discharge Frakes was made some time between April 3
and April 11 because as a nonmember of the bargaining
unit he had left patients under his care. The decision to
terminate Frakes was not made when the strike began
because she did not know but what he might have passed
the test and thus automatically have been in the bargain-
ing unit.
B. Analysis and Concluding Findings
There is no question that Frakes joined fellow employ-
ees in a lawful strike. Nor is there any question that
Frakes was discharged for having done so. To join
others in a work stoppage where one is not directly in-
volved is a sympathy strike. Such is protected by Section
7. Thus clearly and without more, the discharge of
Frakes was violative of Section 8(a)(1) of the Act.
But the Respondent argues that employees of health
care institutions may not strike in sympathy absent notice
of their intent to do so. Since the notice here related
only to the nurses, and did not indicate that Frakes or
other nonbargaining unit employees might join in the
I The General Counsel does not contend that the reclassification of
Frakes was in any way violative of the Act
strike, it did not protect him. Thus, the Hospital was
privileged to discharge Frakes for leaving his job, par-
ticularly given the Hospital's need for continuity of pa-
tient care.
Section 8(g) applies to labor organizations, not em-
ployees. Walker Methodist Residence and Health Care
Center, Inc., 227 NLRB 1630 (1977). There the Board
held that the 1974 health care amendments (Sec. 8(g), et
al.) aimed to extend protection of the Act to employees
of health care institutions. Thus, their rights as employ-
ees under the Act should not be limited absent explicit
language requiring such a result. I find no language in
the amendments which restricts an employee of a health
care institution from enjoying his generally protected
right to join others in a work stoppage even though he is
not a member of the bargaining unit. While a labor orga-
nization must give notice before joining another in sym-
pathy, District 1199, National Union of Hospital & Health
Care Employees, R WDSU, AFL-CIO (First Healthcare
Corporation d/b/a Parkway Pavillion Health Care), 222
NLRB 212 (1976), Section 8(g) places no such require-
ment on individuals. Montefiore Hospital and Medical
Center, 234 NLRB 633 (1979), enfd. in part 621 F.2d 510
(2d Cir. 1980).
Nor did Respondent demonstrate any factual justifica-
tion for discharging Frakes. While the letter to Frakes
suggested that he abandoned assigned patients, there is
no evidence that the Hospital was damaged as the result
of his action or any patient was placed in danger.
Indeed, Salisbury testified that within 5 minutes two reg-
istered nurses who had not gone on strike were assigned
to the intensive care unit. (Less than half of the bargain-
ing unit nurses even participated in the strike.) Further,
the Respondent did not decide to terminate Frakes until
much later (apparently after learning that he had failed
the test a second time) which suggests that his act of
March 12 caused no particular problem. Sister Agnes tes-
tified that he was not terminated immediately because
hospital management thought he might have passed the
test and thus have been in the bargaining unit. In short,
the Respondent's decision rested upon the technical fact
of whether Frakes had passed the examination and not
whether his absence was in any way damaging to the
Respondent or any patient.
Accordingly, I conclude that the Respondent has not
sustained its burden of establishing sufficient justification
for discharging an employee who engaged in activity
otherwise protected by Section 7 of the Act. By dis-
charging Dennis Frakes because he joined the strike of
registered nurses on March 12, the Respondent violated
Section 8(a)(1) of the Act.
In joining the nurses' strike on March 12 Frakes
became an economic striker and therefore, as with the
nurses, could have been permanently replaced. Such,
however, was not the case. The Respondent did not per-
manently replace Frakes, it discharged him.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The Respondent's unfair labor practice described
above, occurring in connection with its business, has a
MT. CARMEL HOSPITAL 835
close, substantial, and intimate relationship to trade, traf-
fic, and commerce among the several States and tends to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce within the mean-
ing of Section 2(6) and (7) of the Act.
v. THE REMEDY
Having found that Respondent unlawfully discharged
Dennis Frakes, I shall recommend that it be ordered to
cease and desist from such activity, offer him immediate
reinstatement to a position of registered nurse, a position
he would have held after September 5, 1980, but for his
discharge, and make him whole for any loss of wages
and other benefits he may have suffered as a result of the
discrimination against him in accordance with the formu-
la set forth in F. W Woolworth Company, 90 NLRB 289
(1950), with interest as provided for in Florida Steel Cor-
poration, 231 NLRB 651 (1977).5
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this matter, and pursuant to
the provisions of Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 6
The Respondent, Sisters of St. Joseph's d/b/a Mt.
Carmel Hospital, Pittsburg, Kansas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees because they engaged in a strike or other con-
certed activity protected by Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act. 7
2. Take the following affirmative action:
(a) Offer immediate reinstatement to Dennis R. Frakes
to a position of registered nurse or, if such position no
longer exists, to a substantially equivalent position of em-
ployment and make him whole for any loss of wages or
other benefits he may have suffered as a result of his dis-
charge pursuant to the formula set forth in the remedy
section above.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
5 See, generally, Isis Plumbing and Hearing Co., 138 NLRB 716 (1962).
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, he adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
7 There is no indication in this record that the Respondent has a pro-
clivity to engage in unfair labor practices or indeed has any particular
animus against the Union or any other labor organization. Accordingly, I
find that the narrow injunctive order is appropriate. See Hickmotr Foods,
Inc., 242 NLRB 1357 (1979).
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Pittsburg, Kansas, facility, copies of the
attached notice marked "Appendix." 8 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that the notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
I 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT discharge any employee because
that employee joins in a lawful strike or other con-
certed activity protected by the National Labor Re-
lations Act.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer Dennis R. Frakes immediate rein-
statement to the position of registered nurse and WE
WILL make him whole for any loss of wages or
other benefits he may have suffered as a result of
the discrimination against him, with interest.
SISTERS OF SAINT JOSEPH'S D/B/A MT.
CARMEL HOSPITAL
MT. CARMEL HOSPITAL