Parker Hill Medical Center

National Labor Relations Board - Board Decisions

Jan 21, 1977

227 N.L.R.B. 1289 (N.L.R.B. 1977)

PARKER HILL MEDICAL CENTER
The Massachusetts Women 's Hospital d/b/a Parker
Hill Medical Center and District 1199, Mass.,
National Union of Hospital and Health Care
Employees, RWDSU/AFL-CIO . Case 1-CA-
11298
January 21, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On September 8, 1976, Administrative Law Judge
Julius Cohn 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,' 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, The Massachu-
setts Women's Hospital d/b/a Parker Hill Medical
Center, Boston, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950 ), enfd 188 F2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
We note that Dove testified that , in his conversation with Administrator
Sabbag on December 11, 1975, Sabbag told Dove that he felt that Dove's
support of Jules was doing a favor for the hospital (rather than for Jules, as
reported in the Administrative Law Judge 's Decision) Our correction of the
Decision does not detract from our affirmance of the Administrative Law
Judge's findings respecting Dove's discriminatory discharge
In rejecting Respondent 's economic defense , we do not rely on the
Administrative Law Judge's statement as to the operating deficits in other
hospitals
Member Walther joins in affirming the Administrative Law Judge's
Decision , insofar as it holds that Respondent discnminatonly discharged
employee Dove for engaging in concerted activity He finds it unnecessary to
decide whether Respondent also discharged Dove for his union activity
227 NLRB No. 187
DECISION
STATEMENT OF THE CASE
1289
JULIUS COHN, Administrative Law Judge: This case was
heard at Boston, Massachusetts, on April 26 and 27, 1976.
Upon a charge filed December 17 and served December 18,
1975, and an amended charge filed and served on January
28, 1976, the Regional Director for Region 1 issued the
complaint in this proceeding on January 29, 1976, alleging
that the Massachusetts Women's Hospital d/b/a Parker
Hill Medical Center, herein called the Respondent, violated
Section 8(a)(1) and (3) of the Act by laying off and refusing
to reinstate an employee because he had engaged in
protected concerted activities and because he joined and
assisted District 1199, Mass., National Union of Hospital
and Health Care Employees, RWDSU/AFL-CIO, herein
called the Union. Respondent filed an answer denying the
commission of unfair labor practices.
Issues
The issues discussed herein are:
1. Whether Respondent laid off and refused to recall
John Dove, an employee, because Dove assisted another
employee in filing a complaint with the Massachusetts
Commission Against Discrimination (MCAD) and submit-
ted an affidavit in support of that complaint.
2. Whether Respondent laid off and refused to reinstate
Dove because he joined and assisted the Union for
purposes of collective bargaining.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. The General
Counsel and Respondent submitted briefs which have been
carefully considered.
On the entire record in this case and from my observation
of the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a corporation of the Commonwealth of
Massachusetts, is a nonprofit hospital located in Boston,
Massachusetts. Respondent's gross annual revenue from
the hospital and medical and related services it renders
exceeds the sum of $250,000. In addition Respondent
annually purchases goods and materials valued in excess of
$50,000 from suppliers within the Commonwealth of
Massachusetts who in turn received such goods directly
from points located outside the Commonwealth. The
complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
1290
III. THE ALLEGED UNFAIR LABOR PRACTICES
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Faces
Respondent operates a nonprofit hospital which for the
past 2 years has had a 120-bed capacity. The hospital is
equipped to provide a full range of medical and surgical
services, excluding obstetrics and pediatrics. Respondent
employs approximately 190 employees including part-tim-
ers, a nursing staff, clerical employees, housekeeping,
maintenance, and finance employees, and laboratory and
X-ray technicians. The maintenance department involved
herein is under the overall direction of Carl Frutkoff, the
hospital engineer. During 1975, the maintenance depart-
ment consisted of, in addition to Frutkoff, Foreman Gerald
Casey, two employees on the day shift, and three other
employees who divided the afternoon and night shifts
among them. As to the latter, one employee covered each
shift during the afternoon and evening except on Thursday
when two employees manned the afternoon shift. The
department performed general maintenance work such as
carpentry, painting, monitoring the boilers, and preventive
maintenance work on all of the equipment. From time to
time the employees in the department were also involved in
what was called general projects such as construction of
new rooms, remodeling, and the like.
John Dove had been employed in the maintenance
department from November 1974 until his layoff on
December 11, 1975. He was a full-time employee on the day
shift along with Edney Jules under the direction of
Foreman Casey. Early in 1975, Jules decided to file a racial
discrimination charge against Respondent at MCAD. Dove
accompanied Jules to MCAD and assisted him in filing his
charges, which alleged that Casey had discriminated
against Jules, for racial reasons, with respect to his
conditions of employment. In addition, Dove submitted an
affidavit to MCAD in support of Jules' charge, reciting
examples of Casey's prejudice towards minorities. Appar-
ently this charge was not investigated by MCAD until the
summer of 1975 and was disposed of early in December
when Respondent received a letter advising it of the
dismissal of the complaint.
In the spring of 1975, the Union commenced organizing
at the New England Baptist Hospital located adjacent to
Respondent. At that time Dove and other employees had
the opportunity to speak with Alneta Bond, the organizer
for the Union. Thereafter others became interested in the
Union and discussions followed until October when a
meeting was called with a representative of the Union.
Dove made up notices for that meeting and passed some of
them out to other employees inviting them to attend a
meeting at the nearby VFW hall to meet the union
representative. He conducted this activity when he saw
people during the breaks and lunchtime and also before
and after work. The meeting was held on or about October
15 and was attended by approximately eight employees. At
that time he and several others signed cards for the Union.
After that there were meetings almost every week, most of
which he attended. Dove continued to talk to employees
and tried to get them to sign authorization cards. He did
this during breaks or at lunch or would call them after work
and continued in this manner from mid-October until he
v as laid off. Dove had also been designated with four other
employees as the organizational committee for the Union.
Employees generally ate lunch in the cafeteria maintained
by Respondent which was also frequented by supervisors.
Dove related that on one occasion two employees of the
New England Baptist Hospital who were involved in the
organizational campaign at that institution came to lunch
in the cafeteria of Respondent one day with Dove and
others and became involved in a loud discussion concern-
ing the Union. Shortly thereafter Respondent posted a
notice on the door of the cafeteria which prohibited
outsiders from eating there.
All of Respondent's witnesses , of whom there were four,
denied knowledge of Dove's activities on behalf of the
Union, in almost identical fashion. They denied having any
direct knowledge of his involvement or that of any other
employee. However, all admitted being aware of a leaflet
distribution in front of the hospital during the early summer
of 1975, but that is all. None of them attempted, according
to their testimony, to find out what the distribution was
about or to obtain any of the literature or to endeavor to
learn about its consequence. As to Dove's activities in
submitting an affidavit in support of Jules' complaint,
Respondent 's managers , including Frutkoff, Casey, and
Executive Director George J. Sabbag, were aware of this
since Respondent was so informed by MCAD during the
course of its investigation in the summer of 1975.
On December 2, 1975, Respondent was advised by
MCAD of its dismissal of the charge of discrimination filed
by Jules. On December 9, Frutkoff called a meeting of the
day shift employees consisting of Dove, Jules, and Foreman
Casey. According to Dove, Frutkoff said that there was
animosity in the department resulting from the complaint
that Jules had filed against Casey. Frutkoff also noted that
Respondent had long been aware that Dove had made a
statement in support of that complaint. He went on to say
that the antagonism could not continue and if they could
not get rid of it they would get rid of the antagonists. He
stated that all the trouble was a reflection on him, and the
administrator was considering action but Frutkoff had
succeeded in holding off the administrator for a few days in
order to attempt to clear things up. Frutkoff said he hoped
that bygones could be bygones. When he asked if the
employees wanted to get anything off their chest, Jules
raised certain things which were disturbing him concerning
treatment of him by Casey, and Dove, in turn, mentioned
several things about Casey writing letters to the administra-
tion or their personnel files. They also brought up the
evaluations of Dove and Jules by Frutkoff which stated
that the quality and quantity of their work was good and
yet Casey, in his letters and statements, maintained that
their work was not good. Finally, Frutkoff said that the
meeting had not helped and the problems appeared to be
continuing . Dove asked Frutkoff for a chance to talk to the
administrator because of the letters Casey had written him
which he, Dove, had not seen . He wanted to talk to Sabbag
before any action was taken . Although Frutkoff testified at
two points in the hearing, he did not substantially contra-
dict the testimony of Dove concerning the December 9
meeting except to state that he did not recall using the word
PARKER HILL MEDICAL CENTER 1291
"antagonism" but rather believed that he referred to
"dissension."
During the morning of December II Dove met Frutkoff
and, after some discussion about tickets to the Christmas
party, Dove asked if he had arranged a meeting with
Sabbag. Frutkoff said he would look into it He returned in
a half hour, told Dove to see him in his office, and then said
he had to let him go. Frutkoff said he did not have any
choice as he had to get rid of somebody in the department
and Jules had been there longer. Dove testified that he
asked Frutkoff about his son, Ben. Frutkoff admitted that
his son had not been in the department as long as Dove but
he had thought that Dove did not want his son's job.'
Frutkoff then suggested that Dove discuss the matter with
Mrs. Langevin, a personnel director. Dove did that and
asked about a job he had seen on the board for housekeep-
ing but was told that this was a job that had already been
filled. He asked Langevin why he had been let go instead of
Ben Frutkoff and she replied that it was because Ben had
been in the hospital longer than he.
Later that day Dove met with Sabbag and Langevin and
again asked why he was being let go instead of Ben. Sabbag
stated that he did not have to follow seniority if he did not
wish to and, besides, Ben had been in the hospital longer
than Dove. When Dove suggested that he was being let go
because of his support for Jules, Sabbag said that actually
they had known about it a long time ago, but he felt that
Dove was doing Jules a favor because Jules was so shy.
Sabbag also told him that Dove was to go immediately and
would receive 2 weeks' pay in lieu of notice. Dove asked
why they were giving him the pay instead of notice when he
had been told there was a need to economize. Sabbag
replied that employees under notice cause a morale
problem.
Sabbag testified that the layoff of Dove resulted from
economic causes. Since early in 1975 it was apparent to him
that it was essential for the hospital to practice economy in
all areas. Thus, meetings of department heads were con-
du,;ted throughout the year at which they were constantly
instructed to conserve supplies, energy, and expenses. With
respect to personnel, a policy was instituted to encourage
employees to take voluntary leave without pay when
feasible. In addition attrition was to be used as a method of
cutting down positions. Nevertheless, the operation showed
losses in most months of 1975 so that by the close of the
fiscal year ending September 30, 1975, the deficit for that
period was over $29,000 as against a profit of more than
$46,000 in the preceding year. Sabbag said that he finally
made the decision to reduce the maintenance department
by one person because by December there was not enough
work for the people there and he directed Frutkoff to let
one person go from the day shift. Frutkoff decided that that
person should be Dove and Sabbag agreed stating that
Dove was the last man hired. In this connection it is noted
that while Dove had the least amount of seniority, hospital-
wide, of the employees in the maintenance department, he
had worked in that department longer than Ben Frutkoff.
The latter had been in the hospital a little longer as he had
started in a summer job in the housekeeping department
before Dove was employed.
At the time of the layoff Respondent was nearing the
completion of a special project involving the reconstruction
of the X-ray room. Dove and other maintenance employees
had been devoting a substantial portion of their time
working on this special project. On December 11, the day of
his layoff, Dove was engaged in strapping the walls of the
new X-ray room and had completed one of the four walls
when he was laid off. Respondent states that the work
remaining in connection with this project was not very great
and that certain electrical work had to be performed by
licensed electricians employed by an outside contractor.
Witnesses for Respondent testified at great length to the
fact that Dove had been an unsatisfactory employee.
Indeed on several occasions, both in writing and orally,
Foreman Casey had recommended to Frutkoff that Dove
be discharged. Each time Frutkoff refused to accede to this
request. Casey maintained that Dove was a very poor
employee, he was insubordinate and had "attitudinal"
problems. He questioned assignments and the methods by
which they were to be done. He constantly complained
about cleaning boilers contending that it was too dirty a job
and should be performed by two men rather than one.
According to Casey, new equipment purchased by Respon-
dent made the boiler job a one-man operation which could
be performed by someone without getting dirty. Finally,
Dove was accused of unauthorized use of the telephones.
On June 12 Casey reported to Frutkoff in writing that he
had sent Dove home for refusing to do assigned work.
Again on June 17 Casey wrote to Frutkoff telling him that
Dove had refused an assignment to clean a steam generator
and he therefore recommended his immediate dismissal. On
October 24 Casey informed Frutkoff by letter that he had
been accosted by Dove who not only treated him discourte-
ously but also berated him for having written a letter
regarding Jules. Casey said that he had felt threatened by
Dove and again requested his discharge. None of these
recommendations for the termination of Dove were fol-
lowed by Frutkoff. On October 28 Frutkoff rated Dove as
"good" in all categories, noting, however, that he had
refused to do certain projects claiming that correct safety
equipment or additional personnel were required. Frutkoff
also remarked that Dove had a strained relationship with
the foreman because of the latter's written reports. But
Frutkoff testified that this was not unique since almost all
the employees in the maintenance department, including
his son, Ben, complained about Casey who, it appears, was
a tough foreman who rode his employees very hard.2
Frutkoff himself had given Dove two written warnings.
On June 12 he warned Dove about his refusal to clean a
steam generator on the ground that it was a two-man job
and was very dirty. Frutkoff pointed out that the hospital
had purchased new equipment in order to cut manpower
and make the job a cleaner operation. Thereafter, on
October 16, Frutkoff again warned Dove in writing with
i During the summer Frutkoff had been considering letting his son, Ben, days on the third shift. Dove replied that he would think it over and the next
go because of talk in the hospital concerning nepotism At that time Frutkoff day he told Frutkoff that he preferred not to work that shift The matter was
asked Dove whether he would work Ben's shifts Ben was on the swing shift dropped and Ben was not laid off
which consisted of working 3 days on the second or afternoon shift and 2 2 Foreman Casey is no longer employed by Respondent
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to the use of telephones in patients' rooms for
personal business. Earlier in the year Frutkoff spoke to
Dove about telephones, indicating that this was a practice
frowned upon by Respondent but at the same time also
noting that it was not a major offense. As to the October
warning, Frutkoff stated that he, himself, had observed
Dove on the telephone and said that he felt let down
because Dove had not heeded his prior request concerning
the use of telephones.
Frutkoff testified that he did not discuss with Dove, when
he was laid off, the possibility of his working on another
shift because he had received Dove's reaction to this before.
In any case , he said that his son had more hospital seniority
than Dove. Finally, Frutkoff, as did all of Respondent's
witnesses, asserted that he did not know whether union
organization was going on, nor was he made aware of it by
anyone else. Nor did Dove's assistance to Jules at MCAD
play any part in the decision to lay him off.
B. Discussion and Analysis
Clearly, Dove was engaged in activity protected by the
Act. Early in 1975 he accompanied Jules to MCAD where
the latter lodged a complaint of racial discrimination
against Respondent, and more particularly with respect to
the treatment of Jules by Foreman Casey. Not only did
Dove go along with Jules and assist him at MCAD, but, in
addition, he submitted an affidavit on behalf of Jules to
MCAD. The Board has found that employees who visit a
state commission for the purposes of filing charges of
discrimination against their employer are engaged in
concerted activities protected by Section 8(a)(1) of the Act.3
It is equally clear that Dove, during 1975, was engaged in
union activities. In that regard he met with union organiz-
ers, attended meetings, and distributed notices of meetings
and authorization cards. I find that Dove engaged m
protected concerted activity when he visited MCAD,
assisted Jules, and submitted a affidavit on his behalf; and
further that he engaged in union activity by reason of his
participation in the campaign of the Union to organize
employees of Respondent.
Respondent admits it was aware, since mid-summer of
1975, that Dove had supported Jules in connection with his
MCAD complaint. However, it is contended by Respon-
dent that it had no knowledge of the union activities of
Dove or, for that matter, of any other employees. Respon-
dent maintains that Dove's layoff was not due to these
reasons but rather was caused by economic conditions and
his selection was based upon seniority. While concededly
there is no direct knowledge by Respondent of Dove's
union activities, knowledge of such activity may be shown
by circumstantial as well as direct evidence.4 Any circum-
stances which make it logical to infer that Respondent
knew about the protected activities must be considered. In
a small plant or, as in this case, a hospital, where the
supervision has close contact with the employees and the
concerted activities are carried out in an open manner, an
inference is warranted that the employer does obtain
knowledge.5
There are a number of factors which give rise to the
inference that Respondent possessed knowledge of the
union activities of Dove. All the witnesses of Respondent,
from Foreman Casey to the director of the hospital,
Sabbag, testified uniformly to the effect that they were
aware of a union distributing literature outside the hospital.
All professed indifference to this occurrence and averred
they took no steps to ascertain what was going on nor were
they interested in the literature distributed and what it
contained. Both the uniform nature of the testimony in this
area, as well as the supposed complete lack of interest in the
subject, strains credulity. As noted above, Dove and other
employees often discussed the Union in the cafeteria, a
small room used by both employees and supervisors. On
one occasion, two visiting employees from New England
Baptist Hospital, adjacent to Respondent and also a target
of a union organizational campaign, engaged in loud
discussions concerning a union. Significantly, a day or two
later, Respondent posted a notice prohibiting outside
employees from eating in its cafeteria. In another instance,
Dove received on October 16 a second written warning with
a reminder that further misconduct would result in his
termination. The warning concerned the use of telephones
in patients' rooms, a matter heretofore considered as
relatively unimportant. The fact that this warning was
issued the day after the union meeting may have some
significance in this context. Finally, both Frutkoff and
Casey pinpointed Dove as an employee who constantly
complained, resisted orders, suggested changes in working
conditions and directions, and, generally, as one who had
an "attitudinal" problem. It is clear from their testimony
that they would most certainly have viewed Dove as the
most likely employee to have engaged in union activity.6
Lastly, but often considered a factor in these matters was
the presence of Ben Frutkoff, the son of the head of the
maintenance department who indeed was mentioned by his
father as one of the employees who complained about
Casey's treatment. If Ben was also a complainer, it is more
than conceivable that he discussed the presence of the
Union, and activity in connection therewith, with his father.
On the basis of all the above circumstances I conclude the
evidence is sufficient to infer that Respondent's administra-
tors and supervisors were aware of the union activity and
Dove's role therein.
Having determined that Dove had engaged in concerted
protected activity and union activity of which the Respon-
dent was aware, the issue is then whether he was laid off
because of it. Respondent relies primarily on its so-called
economic defense to the effect that the hospital "has a
continuing and increasing need to economize and control
costs." It implemented this policy at meetings of depart-
ment heads where the need to economize by cutting costs of
materials, supplies, energy, and personnel were constantly
emphasized. With respect to personnel, the program
adopted was twofold. Employees were encouraged to take
3 Advance Carbon Products, Inc, 198 NLRB 741 (1972) matters concerning working conditions , to be protected activity. There is
+ Famet, Inc, 202 NLRB 409 (1973) evidence that many employees voiced complaints , particularly with reference
5 Long Island Airport Limousine Service Corp, 468 F 2d 292 (C A 2, to their treatment at the hands of Foreman Casey, but there is no evidence
1972). Wiese Plow Welding Co, Inc, 123 NLRB 616 (1959 ) that these complaints were made on a concerted basis rather than individual-
6 1 have not found Dove's constant complaining , despite its roots in ly
PARKER HILL MEDICAL CENTER
leave without pay when their absences did not adversely
affect patient care and operations. The other method was to
initiate a policy of attrition so that employees who left were
not replaced unless absolutely required. Thus, during the
year two employees departed from the maintenance depart-
ment and only one was replaced. There is no evidence of
any change in Respondent's policies affecting personnel
until December 11, 1975, when Administrator Sabbag
decided that the maintenance department was overstaffed
by one man on the day shift, and directed Frutkoff to let
one employee go. In the circumstances, I do not find
Respondent's economic argument to be persuasive. Re-
spondent urges that the situation had become urgent and
critical by December 11, but there is nothing to indicate the
particular significance of that date. It is clear that Respon-
dent was aware since the beginning of 1975 that economy
was essential and it so urged its department heads during
the many meetings held that year. The fiscal year ended
September 30 and the profit and loss statement submitted
by its auditors showed a deficit of $29,000 against a profit
of $46,000 in the fiscal year ending September 30, 1974.
Sabbag testified that he was aware of this loss long before
December as he was kept posted with the information by
his comptroller and the monthly figures from the beginning
of the year indicated a deficit would ensue from the 1975
operations. It is interesting to note that even in the
profitable year ending September 1974, the figures showed
a loss from hospital operations; the profit resulted from
nonoperating revenue which exceeded the operating loss by
$46,000. In fiscal 1975, however, the nonoperating revenue
was more than $25,000 less than that in fiscal 1974. In 1975,
all items on the profit and loss statement, including gross
revenue from services to patients and operating expenses,
rose from the prior year except the nonoperating revenue,
which fell. If that item had only equalled that of 1974, the
bottom line deficit for 1975 would have been minimal. In
this context, it may be observed that operating deficits in
nonprofit hospitals are more the rule than the exception.
Despite the austerity program instituted early in 1975 and
the policy of attrition adopted with respect to personnel,
Respondent actually replaced one of two employees who
left, an indication that at this point the maintenance
department had been reduced to the minimum required for
effective 24-hour coverage and performance of its duties. In
mid-year when Frutkoff was thinking of laying off his own
son, it was not for economic reasons but rather to offset the
unpleasant rumors of nepotism. Although the economic
situation was known since early in the year, Frutkoff stated
that he had never laid off any employee for economic
reasons nor did any of the other administrators testify that
this was done in other departments. Sabbag and Frutkoff
testified that the special project involving the rebuilding of
the X-ray rooms was nearing completion by December 11.
However, at that time Dove was working in the X-ray room
strapping walls and he had completed only one of the four
walls in the room. No explanation was offered for the
sudden urgency requiring Dove to be laid off in the middle
of this work. The testimony reveals that special projects
such as these and others occupied perhaps 50 percent of the
time of the maintenance department employees, the bal-
1293
ance being spent in responding to calls for work of an
immediate or emergency nature.
Assuming that there was indeed an economic necessity
and urgency for the layoff of Dove on December 11, the
question arises as to his selection as the employee to be
terminated. Sabbag himself stated that he considered Dove
to be the "last man hired" although he also said that he left
it to Frutkoff to make the ultimate decision as to who
should leave. It is undisputed that Dove had the least
hospital seniority of the employees in the maintenance
department although he had seniority in that department
over Ben Frutkoff. Respondent's contention with regard to
seniority falls short of its mark. It is clear that the hospital
had no structured system of seniority. Indeed, the personnel
director, Langevin, testified that she knew of no personnel
decision that had been made on the basis of semority.
Obviously, the length of time an employee had worked was
considered as a factor but there is no indication that
seniority had ever been determinative. In any case it is
difficult to perceive how hospital semority rather than
departmental seniority could govern in a situation where
there was no interchange nor could there be any inter-
change among the various departments of the hospital.
Since the seniority issue, if any, lay between Dove and Ben
Frutkoff, the senior Frutkoff was asked why he did not
offer Dove a position on the second shift in place of his son
Ben, whom he earlier was considering for layoff because of
the nepotism issue . The shifting nature of Respondent's
defense is revealed by the fact that Frutkoff even sought to
answer this question, in view of the contention that the
decision was based on Dove's lesser hospital seniority. Yet
Frutkoff replied that he felt no need to ask this of Dove
because he already had the answer from the previous
summer when Dove told him he would rather not work the
second or swing shift. Such response is evasive, as Frutkoff
admits Dove was not offered the opportunity to decide
between working the swing shift and not working at all.
This was quite different from the previous occasion when
he was merely asked whether he would be interested in
working such a shift, and his job was not at stake.
Respondent's seniority argument is not at all persuasive.
I discount the testimony alleging Dove to be a poor
employee in that his performance was bad, he refused to
take orders, and he engaged in unauthorized use of
telephones for personal business. These matters all oc-
curred long before the layoff, and Foreman Casey had
often recommended that Dove be discharged only to be
consistently overruled by Frutkoff. Clearly, Dove's work
habits had long been tolerated by Respondent. In any case,
there was no immediate conduct or poor performance on
the part of Dove which could have precipitated his
discharge in December.
However, as a result of the meeting conducted by
Frutkoff with Casey, Jules , and Dove on December 9,
Frutkoff was able to conclude that he could not overcome
the dissension, as he called it, in the maintenance depart-
ment. At this point, MCAD had already dismissed the
discrimination charge against Respondent, and at the
meeting, Jules and Dove, particularly the latter, continued
to voice their complaints and grievances with respect to
their working conditions. It is more likely that Dove's traits
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a complainer, a grievant, an employee who questions
orders, and one who participates in the filing of MCAD
charges also pinpointed him as an union adherent and were
the motivating factors behind his layoff. In this connection,
it is noted that Respondent acted after each overt sign such
as the banning of nonemployees from the cafeteria a day or
two after a loud discussion about Union, the final warning
to Dove regarding telephones the day after the union
meeting , and finally his layoff 2 days after the December 9
meeting with Frutkoff, the MCAD charge having just been
dismissed. Assuming that economic conditions warranted
the layoff of an employee and further that Dove was
somewhat short of a model worker, it is well settled that a
discharge even partially motivated by unlawful reasons
violates the Act despite the presence of valid reasons for the
discharge.? On the basis of all of the foregoing, I find that
Respondent laid off Dove because of his activity at MCAD
and for his further activities on behalf of the Union rather
than because of economic reasons or seniority reasons or
his poor performance as an employee. Accordingly, I
conclude that by this conduct Respondent violated Section
8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily laid off
an employee as set forth above, I shall recommend that
Respondent be ordered to offer John Dove immediate and
full reinstatement to his former position, or, if thatjob is no
longer available, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges; and make him whole for any loss of earnings or
other monetary loss he may have suffered as a result of the
discrimination against him, less interim earnings, if any,
plus interest at 6 percent per annum. Any backpay due is to
be determined in accordance with the formulas set forth in
F W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co, 138 NLRB 716 (1962).
I Sweeney & Company, Inc v N L R B, 437 F 2d 1127, 1133 (C A 5,
1971)
" 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 g8
of the Rules and Regulations , be adopted by the Board and become its
fndin s, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By laying off John Dove because of his protected
concerted activity, Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
4. By discriminatorily laying off John Dove because of
his union activities, Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDERS
The Respondent, The Massachusetts Women's Hospital
d/b/a Parker Hill Medical Center, Boston, Massachusetts,
its officers , agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off or otherwise discriminating against any of
its employees because of their concerted activities.
(b) Discouraging membership in District 1199, Mass.,
National Union of Hospital and Health Care Employees,
RWDSU/AFL-CIO, or any other labor organization, by
laying off or otherwise discriminating against employees in
respect to their hiring or tenure of employment or other
terms of employment because of their union activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
by Section 7 of the Act, except to the extent that such rights
are affected by the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Offer John Dove immediate and full reinstatement to
his former position or, if such position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights previously enjoyed, and make him
whole for any loss of pay caused by the discrimination
against him in accordance with the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Boston , Massachusetts, hospital copies of
the attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by the Respondent's
authorized representative, shall be posted by it immediately
9 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 "
PARKER HILL MEDICAL CENTER 1295
upon receipt thereof and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced , or covered
by any other material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity to
give evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act
and we have been ordered to post this notice.
The Act give all employees the following rights:
To engage in self-organization, to form, join, or
assist any union
To bargain collectively through representatives
of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT lay off or discharge any employee
because he has visited the Massachusetts Commission
Against Discrimination , assisted another employee in
the filing of such employee 's complaint , or cooperated
in an investigation conducted by said Commission, or
had otherwise engaged in concerted activities protected
by the Act.
WE WILL NOT lay off or discharge any employee for
engaging in union activity on behalf of District 1199,
Mass., National Union of Hospital and Health Care
Employees, RWDSU/AFL-CIO, or any other labor
organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL OFFER John Dove immediate and full
reinstatement to his former job or, if such job no longer
exists, to a substantially equivalent job, without preju-
dice to his seniority or other rights, and WE WILL make
him whole for any loss of pay or any benefits he may
have suffered by reason of our discrimination against
him, with interest thereon at 6 percent per annum.
THE MASSACHUSETTS
WOMEN'S HOSPITAL D/B/A
PARKER HILL MEDICAL
CENTER