240 N.L.R.B. 173 (N.L.R.B. 1979)

Otis Hospital

National Labor Relations Board - Board DecisionsJan 24, 1979

240 N.L.R.B. 173 (N.L.R.B. 1979)

OTIS HOSPITAL 173 Otis Hospital and Massachusetts Hospital Workers Union, Local 880, Service Employees International Union, AFL-CIO. Case -CA 10931 January 24, 1979 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 27, 1978, Administrative Law Judge David S. Davidson issued the attached Supplemental Decision in this proceeding.' Thereafter. the General Counsel filed exceptions and a brief in support thereof. 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 brief and has decided to affirm the rulings, findings, 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, Otis Hospital, Cam- bridge, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 227 NLRB 53 (1976). enfd. 559 F.2d 1201 ( Ist Cir. 1977) 2 The General Counsel excepted to the interest rate ordered on backpa 5 The Administrative Law Judge provided for 6 percent per annum which was the rate ordered in the underlying Decision. As that Decision has been enforced b the Court of Appeals there is no basis for appl)ing a different rate in this Supplemental Decision See Florida Steel Corporiaon. 234 NLRB 1089 (1978) SUPPLEMENTAL DECISION STATEMENT OF THE CASE DAVID S DAVIDSON. Administrative Law Judge: On De- cember 7, 1976, the Board issued its Decision and Order in this case finding, inter alia. that on and since June 19, 1975, Respondent refused to employ Evelyn Merowski, a nurses aide, on the night shift because of her union activity there- by violating Section 8(a)(3) and (1) of the Act.' The Board 1227 NIRB 53 240 NLRB No 21 ordered that she be offered immediate and full reinstate- ment on the night shift to the job of nurses aide, or a sub- stantially equivalent position and that she be made whole for any loss of pay or other benefits suffered by reason of the discrimination against her. On August I, 1977. the United States Court of Appeals for the First Circuit en- forced the Board's Order. Thereafter a controversy arose over the amount of backpay due under the terms of the order, and the Acting Regional Director on November 28. 1977, issued a backpay specification and notice of hearing. Respondent filed an answer raising issues as to whether the claimant forfeited the right to any backpay because of will- ful loss of earnings or failure to make diligent efforts to seek interim employment.2 A hearing on the backpay specification was held before me at Boston, Massachusetts, on April 5 and 6, 1978, at which the claimant Evelyn Merowski appeared as a witness and was cross-examined by Respondent. At the hearing Respondent sought a continuance for the purpose of inves- tigating the efforts of the claimant to obtain interim em- ployment as disclosed by her testimony at the hearing. In- asmuch as counsel for the General Counsel had disclosed information from his files concerning the claimant's efforts to obtain interim employment to Respondent's counsel a menth in advance of the hearing, the motion was denied. However, as the claimant testified that she had applied at on- nursing home which was not named in the information furnished before the hearing, Respondent was given leave to move to reopen the hearing upon a showing accompa- nied by an affidavit that a further hearing would produce evidence material to the issues in this case. Subsequently, Respondent moved to reopen the hearing, and the motion was denied.3 The General Counsel and Respondent have filed post-hearing briefs. Upon the entire record in the case including my observa- tion of the witnesses and their demeanor I make the follow- ing: FINDINGS AND CONCLUSIONS I BACKGROUND AND INTRODUCTION Evelyn Merowski, an experienced nurse's aide, was em- ployed by Respondent on its day shift until January 1975. At that time she went on maternity leave. In May 1975 her baby was born, and in June 1975 she sought reinstatement on the night shift on which there were openings at the time. In its earlier Decision in this case the Board found that because of the necessity of providing for her baby's care. Merowski was only able to work nights and that Respon- The answer also raised an issue as to the average weekly earnings re- celied by the claimant before the discrimination against her. That issue was resolved bh stipulation at the hearing on the basis of which the backpa specification was amended. Respondent also raised an issue as to the claimant's interim earnings and employment but presented no evidence with respect thereto. The motion and the order dening it have been receired n eidence as AL.J Fxhs I and 2. respectively In accord with arrangements at the hearing, Respondent also submitted its ehibit 7. a map and a list of hospitals in the Somerville-(Camhridge Massachusetts area. and its exhibit 8. a summar of .ddseriinements from the osion Globe hese exh;hits have been received OTIS HOSPITAL 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's refusal to reemploy her on the night shift was based on her union activities. The backpay period runs from June 19, 1975. to Septem- ber 6, 1977, when Merowski enrolled in nursing school and became unavailable for employment. During the backpay period, Merowski lived in Somerville, Massachusetts. For purposes of this Decision the backpay period will be con- sidered in three parts-the period from June 19, 1975, until January 1976, when Merowski was unemployed: the pe- riod from January 1976 until February 1977, when Merow- ski worked at Reagan's Convalescent Home; and the pe- riod from February 1977 until September 6, 1977, when Merowski was again unemployed. II JUNE 1975 rO JANUARY 1976 As is usual in backpay proceedings, Merowski was called as a witness by the General Counsel and was questioned briefly as to her efforts to obtain employment and her in- terim employment. In response to questions of counsel for the General Counsel, Merowski testified that following Re- spondent's refusal to reinstate h:r on the night shift she made efforts to find work elsewhere as a nurses aide and that in the course of those efforts she filied applications with two Somerville nursing homes, Clarendon Hill Nurs- ing Home and Reagan's Convalescent Home where she was hired. Respondent's counsel cross-examined Merowski extensively as to the places where she filed applications for employment, but more tangentially as to other efforts made by Merowski to find employment. In the course of her cross-examination and further examination by counsel for the General Counsel, Merowski testified that she ap- plied to the Clarendon Hill Nursing Home in August, Sep- tember, or October 1975.4 and to Reagan's in January 1976. She also testified that she made an additional appli- cation to Vernon Hall Nursing Home and that she believed she did so in September 1975. Merowski testified that in addition to making these applications she made telephone calls to the Somerville Hospital twice between June 1975 and January 1976 and to Central Hospital once during that period. During this period she also read advertisements in a weekly Somerville paper and occasionally in the Boston Globe. For the same reasons that Merowski sought to work nights for Respondent after her maternity leave, Merowski sought work only on evening or night shifts. Because she sought night work she also restricted her search to the Somerville-Cambridge area. Although counsel for the Gen- eral Counsel questioned Merowski about seeking unem- ployment compensation and visiting the State employment office after her layoff from Reagan's. she was not asked by 4 Clarendon iill Nursing Home was not identified in the materiall turned over to Respondent before the hearing as an employer to whom Merowskl had applied for employment before she went t work at Reagans. In sup- port of its motion to reopen the hearing Respondent attached it statement from the present director of nurses of (Clarendo n ill Nursing lHome to he effect that in 1976 Merowski applied for a part-time job only on the eveniln or night shift and was rejected because (larendon Ill had no part-tinme jobs available Respondent contended that that this statement contradlclted Merowski's testimony that she applied for a full-time job at larendon Ihll in the fall of 1975. Contrary to Respondent's contention ho ever, the state- ment does not indicate that Merowsk made no earlier application io (lar- endon Hill. 'Ihe motion was therefore denied either counsel whether she did so during the period from June 1975 to January 1976. Respondent's counsel identified a number of hospitals and nursing homes in the Somerville and Cambridge area other than those initially named by Merowski, and Merow- ski testified that she did not make applications to them. Merowski testified that she was aware that there were agencies thourgh which nurses aides were hired but she did not contact them because she understood that they did not pay well, did not know where to contact them, and be- lieved they hired only for duty in private homes. Respondent adduced no evidence to show the availabili- ty of any jobs for which Merowski was qualified other than a collection of newspaper advertisements which appeared in the Boston Globe. On six occasions between June 19. 1975, and the time Merowski started work at Reagan's, advertisements placed by the Massachusetts Rehabilitation Hospital on Nashua Street in Boston appeared in the Bos- ton Globe seeking nurses aides with a minimum of 2 years experience to work either from midnight to 8 a.m. or on all shifts. On November 30. 1975, Mt. Auburn Hospital in Cambridge advertised for nursing assistants with I year's experience to work from 12:15 to 8:15 a.m. On November 30, 975, Staff Builders Medical Services of Boston adver- tis.d openings for part-time and full-time nurses aides for staff or private duty for hospital trained and experienced applicants. On November 30, 1975, Medi-Tem advertised temporary assignments available for hospital trained nurs- es aides with I year's experience. Other advertisements during this period showed on their faces that they were for openings outside the Cambridge-Somerville area. It is well established that "in a backpay proceeding the burden is upon the General Counsel to show the gross amounts of backpay due. When that has been done, how- ever, the burden is on the employer to establish facts which would negative the existence of liability to a given employ- ee or which would mitigate that liability." s Specifically, the burden is on the employer to show willful loss of earnings or failure to make reasonable efforts to find interim em- ployment.6 If any uncertainty remains, it is to be resolved against the wrongdoer whose conduct made uncertainty p( ssible.7 Here the record is silent as to whether Merowski regis- tered with the State employment service before taking in- terim employment at Reagan's. While the number of appli- cations filed by Merowski was thoroughly explored by counsel in examining Merowski, she was never asked if the efforts to find work which she described represented the full extent of her efforts between June 1975 and January 1976 to find other employment. The advertisements intro- duced by Respondent include only a single advertisement for nurses aides in the Somerville-Cambridge area 8 which appeared once in the Boston Globe during the relevant S: 1. R.B v. Bronn & Rsl ,i. r. .. 311 1 .2d 447. 454 (h (ir. 1963) ' So,ihr, IIlolseJiold Pridu ts ( ),tfan . 1, . 203 N I.RB 81 (1973). L I. R.B v Miml ( .i- ( ,i ln (Bnrni 36i F.2d . 1 59. 572 573 15th ('ir. 1966) I he rest either indicate openings in Boston ior at undisclosed locations. 'irtlcularl ais Merowski's aailablit was mited to evening and night shifts. he as not ohlialtcd to seek emiphloment In Boston i r generallt ii the neliropolitan Bston arca (;airrilrd ( oiiui/tutct /It w. louirpruledf. 2) NI.RB 4. 41 42 1975}. OTIS HOSPITAL 175 period. There is no evidence otherwise that there were openings for which Merowski was qualified in the Somer- ville-Cambridge area during this period. While the evi- dence may leave a question of whether Merowski could have been more diligent in seeking other employment, the highest standard of diligence is not required and doubts must be resolved against Respondent. 9 I find that Merow- ski is entitled to the backpay set forth in the amended spec- ification for the period from June 1975 to January 1976. III JANUARY 1976 TO FEBRUARY 1977 On or about January 13, 1976, Merowski was hired by Reagan's Convalescent Home in Somerville as a nurses aide at the rate of $2.60 an hour. Merowski remained at Reagan's until late February 1977, when she was laid off. When Merowski was hired, she was told that Reagan's needed a part-time nurses aide at the time but was prom- ised that she would be given full-time work when it became available and that if the full-time nurses aide on her shift hired shortly' before her did not work out she would be given a job. Shortly after Merowski started to work at Reagan's she learned that the full-time nurses aide on the 3 to I I p.m. shift intended to leave after a certain number of months. At the time of her hire Merowski's normal hours at Reagan's were from 3:30 to 8 p.m., and she worked the full 3 to II p.m. shift when the regular nurses aide on that shift was off duty. After some months on the job Merowski began to work regularly from 3 to II p.m.' ° Merowski testified that while she was working part time at Reagan's she was not interested in seeking full-time em- ployment elsewhere because she expected to receive full- time employment at Reagan's eventually and did not want another job because she had a job. However, during that period she made one call in response to a newspaper adver- tisement for an opening which she discovered was too far away. Contrary to Respondent's contention, acceptance of less than full-time employment at Reagan's by Merowski did not disqualify her for backpay for the period of her part- time employment. The evidence shows that Merowski sought full-time employment at Reagan's and accepted the part-time arrangement with a promise of future full-time employment which ultimately materialized. To deny Mer- owski any' backpay would convert her efforts to mitigate Respondent's backpay obligation into a penalty against her. The question remains whether Merowski's net backpay should be reduced because she worked less than 40 hours a week during the first three quarters and part of the fourth quarter of 1976. Full-time work was not available to her at Reagan's if she had wanted it, unlike the case in McCann Steel Company. Inc., 224 NLRB 607. 610-611 (1976), where constructive interim earnings were substituted for actual intenm earnings because the claimant failed to work as 9 IL R B 4rduin, Mlanull, luring ( rp. 94 F 2d 420(. 423 ( I.t ( r 1968). L R.B , Mianmi ( ,a-( ,la Bolhne ( mnipan. lqral 1) Although Merowskl was uncertain hen her full-time emploinrent be- gan. the figures shon n Ihe hckpa? specification indicate thatl he began I) work full ime durine the fourth quarter of 1976 many hours as were available to him. Nor does it appear that her employment was limited to a few days a week leaving her free to seek employment elsewhere on other days when she was regularly available, unlike the case in J. H. Rutter-Rex Manufacturing Company. Inc.. 158 NLRB 1414. 1447 (1966), where gross earnings were reduced to reflect a partial willful loss of earnings because claimants regularly worked I to 3 days a week without seeking addi- tional work on their free days. Rather it appears that Mer- owski worked 5 days a week from 4-1/2 to 8 hours a day and was in a position similar, if not superior, to those claimants in Rutter-Rex, supra at 1447-48. who worked a short workweek and were given full backpay. I find ac- cordingly that Merowski is entitled to the backpay set forth in the amended specification for the period she worked at Reagan's. IV FEBRUARY 1977 TO SPTEMBER 1977 NMerowski testified that after her layoff from Reagan's she again made efforts to find work. In these efforts she again indicated that she was available to work from 3 to 1 p.m. or II p.m. to 7 a.m. About a week after her layoff Merowski went to the State employment service office in Canbridge where she registered and applied for unemploy- ment compensation. From then until the end of August she visted the employment service regularly and collected un- employment compensation. During that period she re- ceived no referrals to any jobs from the employment ser- vice. Shortly after her layoff Merowski filed job applications at Evergreen Nursing Home in Somerville and Neville Manor Nursing Home in Cambridge. At Evergreen, Mer- owski was interviewed and was told that she would be called, but she never received a call. She filed both applica- tions after her relatives, who worked at these nursing homes, told her that there were openings. At some point after Merowski left Reagan's and before she entered nurs- ing school she also applied for a job at the Mary Ellen Nursing Home. Merowski testified that she did not make applications at nursing homes in the Cambridge-Somerville ara identified by Respondent's counsel in examining her. She testified also that she did not contact any employment agencies which placed nurses for the reasons set forth above in the discussion of her efforts to find work between June 1975 and July 1976. Again Respondent adduced ro evidence to show the availability of work during the relevant period other than the collection of newspaper advertisements from the Bos- ton Globe. From that evidence it appears that on April 10. 17, and 24. 1977, the Massachusetts Rehabilitation Hospi- tal in Boston again advertised for nurses aides with a mini- mum of 2 years experience for work on evening and night shifts. On August 14, 1977. the Sancta Maria Hospital in Cambridge advertised for nurses aides with medical or sur- gical hospital experience to work on all shifts, and on March 15 and 16. 1977, the William Francis Nursing Home in Cambridge advertised for experienced licensed practical nurses and aides for the 3 to I I or II to 7 shifts. On March 20, 1977, the Evergreen Nursing Home adver- tised for experienced nurses aides for the 3 to II shift. OTIS HOSPITAL '75 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Merowski was not questioned specifically about this advertisement, she testified that she saw an advertise- ment by Evergreen before she applied there. Other adver- tisements during this period placed by hospitals or nursing homes clearly indicated that they were for positions out- side the Cambridge-Somerville area. During this period several agencies also advertised for nurses aides. Staff Builders Medical Services of Boston and Waltham advertised on April 10 and 24, 1977, that there were immediate temporary assignments on nights or week- ends available at both its Boston and Waltham offices. On May 15, Staff Builders advertised immediate openings on all shifts in Weston, Waltham, and Newton. On August 21, Staff Builders advertised immediate openings with the big- gest need for evenings and weekends with no reference to location. A number of ads from Olsten's Health Care Ser- vices in Boston appeared from one to four times a month from July 1977. Each indicated that an applicant might work at his own convenience, any shift, any day, and that full and part-time positions were available. On March 6, April 12, and July 26, 1977, Medical Resources Health Care Services in Newton, Masschusetts, advertised the availability of full and part-time openings. On March 13 and 16, 1977, Metropolitan Nurse, Inc., of Boston adver- tised for nurses aides full or part-time with choice of shifts. On June 12, 1977, Anodyne Medical Services advertised for nurses for all shifts, staff and private duty, full and part-time, in Boston and the suburbs. Medical Personnel Pool advertised on June 12 and 26, 1977, that it was inter- viewing in Boston for its nursing service. For reasons similar to those set forth above in discussion of the period from June 1975 to January 1976 I find that Respondent also failed to establish that Merowski suffered willful loss of earnings or failed to make reasonable efforts to find interim employment between January and Septem- ber, 1977. During this period Merowski regularly visited the State employment service and received no referrals. Shortly after her layoff from Reagan's she applied for nurs- es aide positions at three different nursing homes in the Cambridge area. The advertisements introduced by Re- spondent include only two which ran briefly for jobs in the Cambridge-Somerville area with employers to whom Mer- owski did not apply. There is no evidence otherwise that there were openings for which Merowski was qualified in the Somerville-Cambridge area. Again while it may appear from the evidence that Merowski could have persued her search with greater diligence, Respondent has failed to sus- tain the burden of proof of its affirmative defenses. I find therefore that Merowski is entitled to the backpay set forth in the backpay specification as amended at the hearing with interest. RECOMMENDED ORDER " Upon the basis of the foregoing findings and conclu- sions, it is ordered that the Respondent, Otis Hospital, its officers, agents, successors, and assigns, shall pay to Evelyn Merowski, as net backpay, the amount of $11,252.22 with interest at the rate of 6 percent per annum computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), as provided in the Board's Decision in thls case. 2 There shall be deducted from the foregoing amount social security taxes, income tax withholding, and su-:h other deductions as may be required by the laws of the United States or the Commonwealth of Massachusetts. " 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 1 Florda Steel Corporation, 234 NLRB 1089 (1978). But see also J. H Rliuer-Re Mainufacturing (ompn. upra at 1425. 1561.