Otis Hospital

National Labor Relations Board - Board Decisions

Dec 7, 1976

227 N.L.R.B. 53 (N.L.R.B. 1976)

OTIS HOSPITAL 53
Otis Hospital and Massachusetts Hospital Workers
Union, Local 880, Service Employees International
Union, AFL-CIO. Case l-CA-10931
December 7, 1976
DECISION AND ORDER
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Hospital, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
BY CHAIRMAN MURPHY. AND MEMBERS
FANNING AND JENKINS
On June 3, 1976, Administrative Law Judge Marion
C. Ladwig issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, fmdings, 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Otis Hospital,
Cambridge, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
said recommended Order.
DECISION
STATEMENT OF THE CASE
MARION C. LADwIG, Administrative Law Judge: This
case was heard at Boston, Massachusetts, on March 10,
1976. The charge was filed on August 1, 1975,1 and the
complaint was issued on October 8. Nurses aide Evelyn
Merowski, a union organizer, was promised by her supervi-
sor when she went on maternity leave that, upon her return,
she could work on the night' shift if there was an opening.
When she asked to return-before the election was held-
the Hospital refused to permit her to fill a vacancy on the
night shift. The primary issues are whether, the Hospital,
which did not call any defense witness, (a) refused her
employment because of her union activities, and (b)
unlawfully interrogated, threatened, and otherwise coerced
employees before and on the day of the election, in
violation of Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended.
The Hospital, a Massachusetts corporation, operates a
proprietary chronic disease hospital in Cambridge, Massa-
chusetts, where it annually has gross revenue in excess of
$250,000, and receives goods and services valued in excess
of $50,000 from Massachusetts suppliers who receive the
goods and services from outside the State. The Hospital
admits, and I find, that it is engaged in- commerce within
the meaning of the Act, and that the Union is a labor
organization-within the meaning of Section 2(5) of the, Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Prior Proceedings
In Otis Hospital, 222 NLRB 402 (1976), the Board held
that the Hospital, upon advice of the same legal counsel,
Julius Kirle, violated Section 8(a)(1) and (3) of the Act by
withholding a promised wage increase during the preelec-
tion campaign. The Board also held that the Hospital
independently violated Section 8(a)(1) by telling an em-
ployee that the raise was not given because "the Union was
around," and by coercive interrogation. (The Hospital has
110 beds and about 225 employees. An election in three
separate units was held on August 13 in Cases 1-CA-13583,
1-CA-13584, and I-CA-13585.)
At the request of the General Counsel, judicial notice was
taken of the earlier proceeding despite the objection of
Counsel Kirle that the General Counsel is "just trying to
color up instead of sticking to the facts of the case" and
"bringing in everything but the kitchen'sink to try to color
up and paint it so whoever reads it feels God knows what."
B. Alleged Coercive Conduct
It is undisputed that Nursing Supervisor Kathleen
Naughton had three private preelection conversations
about the Union with nurses aide-Carmen McIntosh in
Naughton's office and one in the utility room. About July
31,` Naughton called McIntosh into the office, told her
about the election, and (as McIntosh credibly testified),
"asked me whether I was going to vote for the Union."
(Emphasis supplied.) After McIntosh said she did not
know, Naughton promised to give her a good recommenda-
tion on her application to work for another hospital in the
city. Naughton again called her into the office about
August 7 and `.`said to me that if the Union came in, there
were a lot of things that we could be deprived of," and said
"We could be denied" paid lunches and,parking privileges.
(Emphasis supplied.) About August 11, Naughton called
her in the third time, asked her about her plans to work at
the other hospital, and said she should not vote for the
Union, or vote either way in the election, if she was leaving.
I All dates are in 1975 unless otherwise stated.
227 NLRB No. 11
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Naughton then explained that McIntosh "must think about
the other people that would be left behind ... especially the
Portuguese people. Larry [Administrator Lawrence Heseni-
us ] could get rid of those people because most of them didn't
speak English fluently, and he could replace them with
English-speaking people." (Emphasis supplied.) Shortly
thereafter, Naughton spoke to McIntosh in the utility room
and "asked me if I was still going to vote for the Union."
(Emphasis supplied.) McIntosh replied that maybe she
would.
The Hospital argues that Supervisor Naughton stated
only that the hospital administrator could (not would) take
the actions ; argues that Naughton "was in no position to
authorize and control" the Hospital's actions concerning
the Portuguese people; and contends that what Naughton
stated (about the administrator depriving the employees of
privileges) " ties in" with the Hospital's campaign literature
(that all wages and benefits would be subject to bargain-
ing). I reject these defenses. The -threats were not qualified
by any of the carefully drafted language in the campaign
literature and were clearly coercive. There were no assu-
rances against reprisals and the repeated interrogation in
the context of the threats was also coercive.
About 3 p.m. (shift change time) on August 13, the day of
the election, Nursing Supervisor Naughton was near the
timeclock. There she asked the question, "What are we all
going to vote?" and in unison with three or four nurses
aides , "raised their fist" and answered, "No." (The nurses
aides were in one of the three bargaining units voting that
day.) Without presenting any contrary testimony, the
Hospital contends that "there is nothing violative of the Act
in this action of hers, if indeed it did take place." The
General Counsel contends that the supervisor's leading her
employees in a cheer, to vote "No" against the Union
during the voting hours was a coercive act, Guyan Valley
Hospital, Inc., 198 NLRB 107, 113 (1972), "exert[ing]
pressure upon employees ... to reveal their union senti-
ments and constitut[ing] a subtle form of impermissive
interrogation." I agree.
After denying in its answer that Supervisor Naughton has
supervisory status , and then failing to call any witnesses to
contradict the testimony given by General Counsel's
witnesses, the Hospital argues in its brief that if Naughton is
not a supervisor as defined in the Act, the Hospital "cannot
be faulted for" her conduct. It is clear, however, that
Nursing Supervisor Naughton (as well as Mary Thomas,
discussed later) is a statutory supervisor. She occupies a
private office and serves as shift supervisor, making out the
schedule for registered staff- nurses, licensed practical
nurses, nurses aides , and orderlies; assigning them to the
different floors to work; scheduling their days off and their
holidays; scheduling and approving overtime; calling in
additional' personnel when needed; and permitting or
requiring persons on her shift to go home when sick. She
has served as acting director of nurses (a supervisory
position between the nursing supervisor and the hospital
administrator). I find that, as shift supervisors, she and
Nursing Supervisor Thomas both responsibly direct the
nursing and - other personnel on their shifts and are
supervisors within the meaning of the Act. Wing Memorial
Hospital Association, 217 NLRB 1015 (1975).
Accordingly, I find that the repeated interrogation, the
threats, and Nursing Supervisor Naughton's conduct on the'
day of the election were coercive and interfered with
employees' Section 7 rights, in violation of Section 8(a)(1)
of the Act.
C. Alleged Discrimination
Nurses aide Evelyn Merowski, organizing for the Union,
"passed out union authorization cards from the beginning"
of the organizing drive in October 1974. She attended about
12 union meetings and helped print union newsletters,
which were distributed to the hospital employees. One of
these newsletters which was issued during her maternity
leave carried a long article over her name, complaining
about how the Hospital had treated her and concludmg, "If
we have a Union at the Otis Hospital, this situation can be
avoided in the future."
When she went on maternity leave in January, she asked
her day-shift supervisor, Nursing Supervisor Thomas, if she
could work on the night (11-7) shift when she returned
"because at that time I would have a newborn baby and I
would not be able to do the day shift." It is undisputed that
Thomas "said that there would be no problem providing
that they did need the help [on the night shift] at that time."
(Merowski's husband, who had a day-shift job, could take
care of the baby while she was working on the night shift,
but she had nobody to take care of the baby if she returned
to the day shift.) -
Merowski gave birth to the baby in May and about June
11 (after her article appeared in the union newsletter), she
telephoned the new director of nurses, Bernadine Scutta, to
return to work. Scutta said she did not think Merowski was
on maternity leave, but had been terminated. The next day,
Scutta 'called her back and conceded that she was on
maternity leave. However, despite the fact that there was a
shortage of nurses aides on the night shift and the Hospital
was advertising in the Boston newspapers for experienced
nurses aides on all shifts, Scutta adamantly refused-
without giving any reason-to permit Merowski to work at
night. As Merowski credibly testified, "she told me that I
couldn't go on nights; that I could go back on the same shift
that I left ... on the same floor." Merowski mentioned
talking to Nursing Supervisor Thomas about returning on
nights, but Scutta said, "That doesn't make any difference.
You're dealing with me now.... I won't let you [come]
back on nights." When Merowski insisted-that she could
not work on days, because she had a 1-month old baby
whom she could not leave with anyone, Scutta asked her to
submit a letter of resignation, Merowski refused, and Scutta
said she would send Merowski a telegram, stating that she
"voluntarily resigned." On the next day, June 13, Merowski
telephoned Scutta and complained that "it just wasn't fair
to me because I had been working at the hospital almost
three years, and there was never anything wrong with my
work. And it wasn't fair that I should have to resign like
that." Merowski then asked if Scutta did not need help on
nights, and Scutta untruthfully answered, "No."
At that point, Merowski and Scutta exchanged a series of
registered letters. Merowski wrote on June 13 that she
considered herself on maternity leave, stated "I hope the
attitude you took toward me does not have anything to do
OTIS HOSPITAL 55
with my pro-union sentiment -and activities ," and added,
"Whenever an opening becomes available on nights, I
expect to get the job ." Scutta answered on June 19 , giving
Merowski until June 23 to return to work on the day shift
"that you worked prior to your matermty leave of absence,"
denying any antiunion motivation, and adding, "I must
staff the Hospital according to its needs and not according
to your expectations"-without giving any specific reason
for not permitting her to work at night. On June 26, Scutta
wrote that Merowski had failed to return to work, and that
"I have no other choice but to either have-you justify any
further maternity leave of absence by Monday June 30,
1975 or consider you as having resigned your position on
the staff of the Otis Hospital as of that date." Merowski
answered on June 30 that she had no intention of resigning,
stated that she wanted to return on the night shift "as was
promised to me by the hospital when I began my leave of
absence," and asked to continue on leave "until I am
returned to work on the night shift." Scutta wrote the final
letter on July 8, stating that the Hospital's June 19 position
was clear , denied that the Hospital promised to put her on
the night shift, stated that Merowski's letter confirmed that
she was able to return to work, and gave her until July 14 to
return on the day shift or "I shall consider you as having
quit your position effective as of that date and shall mark
the hospital records accordingly." Apparently because of
the Hospital's June 15 newspaper ad for experienced nurses
aides on "all shifts, no rotation," Scutta had dropped her
untruthful,-oral claim on June 13 that there was no vacancy
on the night shift. Yet Scutta remained adamant against
permitting Merowski to work on the night shift, without
giving any reason.
In the Hospital 's brief, the counsel suggests various
unfounded reasons for not permitting Merowski to work on
the night shift. The brief contends that Supervisor Thomas
has no authority to make any commitment to have
Merowski return on the night shift and argues that "if there
was no such authoritative promise by Respondent, General
Counsel's 8(a)(3) and (1) allegations with respect to
Merowski must fall"-without suggesting any nondiscrimi-
natory reason for the Hospital not wanting Merowski, an
experienced nurses aide, to fill a night-shift vacancy, even if
no promise had been made. The brief then argues that, if
more nurses aides were needed on nights , even more people
would be needed on the day shift "because they have much
more work on days"-apparently suggesting that the
Hospital preferred to leave the night-shift vacancies un-
filled until it could fill the day-shift vacancies, despite its
newspaper ads for nurses aides on "all shifts ." Next, after
citing various clearly inapposite cases, the brief argues that
"Merowski's so-called notorious union activity alleged by
the General Counsel afforded her no shield"-despite the
absence of any improper conduct on Merowski's part. And,
despite the fact that Merowski's mother and brother lived
elsewhere in the city and were not available to take care of
the baby in the daytime, the brief argues that such
babysitting by relatives "is usually done by all working
people who have babies." Finally, the counsel contends in
the brief that Director of Nursing Scutta's statement in her
June 19 letter, "I must staff the Hospital according to its
needs and not according to your expectations," was a
managerial decision that more people were needed on the
day shift, and argues that the Hospital, "as Master of its
own affairs," had complete freedom to make that deci-
sion-thereby leaving unfilled vacancies on both the night
and day shifts.
These defenses are so frivolous that I find that the
counsel is obviously asserting them for purposes of delay.
The evidence is clear that (1) Merowski actively cam-
paigned for the Union before her maternity leave and
continued her union activity during her leave , (2) the
election was pending when she requested reinstatement, (3)
the Hospital -knew she could not work on the day shift
because of her newborn baby, (4) there was_a vacancy when
she asked to return on the night shift, and (5) there was no
nondiscriminatory reason for the Hospital to refuse to
permit her to fill the vacancy. Under these circumstances, I
find that the Hospital denied her reinstatement except upon
the day shift-with knowledge that she could not work
days-in order to prevent her from returning to work and
resuming her union organizing inside the Hospital I
therefore find, as contended by the General Counsel, that
the Hospital refused on and since June 19 to permit her to
work on the night shift solely because of her union activity,
thereby discriminating against her in violation of Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By refusing to reinstate Evelyn Merowski on and
since June 19, 1975, because of her union activity, the
Hospital engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act.
2. By coercively interrogating and threatening employ-
ees, the Hospital violated Section 8(a)(l) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies
of the Act.
The Respondent having discriminatorily refused an
employee reinstatement , I find it necessary to order it to
offer her full reinstatement, with backpay computed on a
quarterly basis plus interest at 6 percent per annum in
accordance with F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from date of refusal to date of proper offer of
reinstatement. Inasmuch as the Respondent 's unlawful
conduct goes to the heart of the Act, I find that a broad
order against infringing upon the employees' Section 7
rights in any other manner is necessary.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER2
Respondent, Otis Hospital, Cambridge, Massachusetts,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Denying reinstatement to or otherwise discriminating
against any employee for supporting Massachusetts Hospi-
tal Workers Union, Local 880, Service Employees Interna-
tional Union, AFL-CIO, or any other union.
(b) Threatening to discriminate against employees or to
withdraw benefits from them if they vote for a union.
(c) Coercively interrogating any employee about support-
ing or voting for a union.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act:
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Evelyn Merowski immediate and full reinstate-
ment on the night shift to her former job or, if her job no
longer exists , to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of pay or other benefits in the
manner set forth in the Remedy section.
(b) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its hospital in Cambridge, Massachusetts,
copies of the attached notice marked "Appendix?' 3 Copies
of said notice, on forms provided by the Regional Director
for Region I, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt -thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
anly 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, in writing, within 20
days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT Is ALSO RECOMMENDED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
3 In the event the Board's 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
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
WE WILL offer full reinstatement to Evelyn Merow-
ski, with backpay since June 19, 1975, plus 6 percent
interest.
WE WILL NOT deny reinstatement to any employee on
leave of absence for supporting Massachusetts Hospital
Workers Union, Local 880, Service Employees Interna-
tional Union, AFL-CIO, or any other union.
WE WILL NOT threaten to discharge employees or to
take away benefits from them if they support or vote for
a union.
WE WILL NOT coercively question you about support-
ing or voting for a union.
WE WILL NOT unlawfully interfere with your union
activities.
OTIS HOSPITAL