South Nassau Communities Hospital

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1181 (N.L.R.B. 1985)

SOUTH NASSAU HOSPITAL
South Nassau Communities Hospital and New York
State Nurses Association . Cases 29-CA-10018
and 29-CA-10397
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 21 August 1984 Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
Charging Party and the Respondent filed excep-
tions. The Respondent filed a supporting brief, and
the General Counsel filed cross-exceptions and a
supporting brief.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, findings,' and conclusions2 as modified herein
and to adopt the recommended Order as modified.
1. The judge failed to decide whether Peterson's
transfer from the intensive care unit (ICU) to the
general surgical floor at the hospital violated Sec-
tion 8(a)(1) and (3) of the Act. For the reasons set
forth below, we find that the Respondent did not
violate the Act in this respect.
The undisputed facts show that, after Peterson's
unlawful warning, her working relationship with
Supervisor Mildred Musolino deteriorated. Muso-
lino testified that her communication with Peterson
was minimal and that Peterson attempted to under-
mine her authority. The judge found, and we
agree, that "it appeared that Peterson's actions
were intended to demean Musolino's authority in
the unit." Musolino's credited, uncontroverted tes-
timony shows that Peterson's actions included: fail-
ing to inform Musolino about a patient's death; as-
suming duties that belonged to Musolino; and chal-
lenging Musolino's administrative decision regard-
ing vacation leave. Musolino also testified that,
when her differences with Peterson reached a per-
sonal level, she informed Supervisor Pat Markert
that the situation had to be resolved. Markert then
recommended to Yvette Mooney, director of nurs-
ing, that Peterson be transferred to another unit.
Mooney testified that she transferred Peterson be-
cause she thought that Peterson's relationship with
Supervisor Musolino was not going to improve and
' The Respondent has excepted to the judge's finding that the Union is
a labor organization within the meaning of Sec 2(5) of the Act We
agree with the judge's finding in light of the parties' stipulation in Case
29-RC-5612 that the Union is a labor organization as defined by the Act
2 In adopting the judge's conclusion that the Respondent violated Sec
8(a)(3) and (1) of the Act by issuing warnings to employees Theresa Pe-
terson and Alda Siragusa, we find it unnecessary to rely on the facts set
forth in fn 9 of the judge's decision In addition, we do not rely on the
judge's comment in sec IV of his decision that in no way did Peterson's
and Siragusa's actions warrant the punishment they received
1181
because the situation caused a great deal of stress in
the ICU.
The Respondent introduced evidence that its
practice is to transfer employees when there are
personality conflicts, either among employees or
between an employee and his or her supervisor.
Employees have also been transferred when they
attempt to exceed their authority within their unit.
Mooney testified that, since Peterson's transfer,
three other nurses have been transferred from their
units because of personality problems with their su-
pervisors. Furthermore, in 1979, prior to Peterson's
transfer, staff nurse Susan Casabona was removed
from her unit not only because of her poor per-
formance, but because she "didn't get along" with
the head nurse, according to Mooney.
After considering all the evidence, we agree
with the judge that Peterson's attitude after 16
May 1982 "caused a lack of communication in the
unit which adversely affected its operations." We
find, therefore, that the Respondent has shown it
would have transferred Peterson, even in the ab-
sence of her union activities. We find the Respond-
ent did not violate the Act in this respect and will
dismiss this allegation of the complaint.
2. We agree with the judge's finding that Peter-
son were not constructively discharged, but solely
for the reasons stated below.
The facts show that Peterson resigned her posi-
tion because she was transferred out of the ICU
and because she felt she could be terminated for
any reason after receiving her unlawful warning.
Inasmuch as we find that Peterson's transfer did
not violate the Act and was not imposed because
of her union activity, we find that the transfer,
even if it were a reason for Peterson's decision to
quit, cannot form the basis for a constructive dis-
charge finding. Although Peterson also testified
that she resigned because she felt that after receiv-
ing her unlawful warning she could be terminated
for any reason, we find that the unlawful warning
did not constitute the kind of misconduct calculat-
ed to cause Peterson to quit. The improper warn-
ing did not make Peterson's situation so difficult or
unpleasant as to force her to resign. Therefore, we
find Peterson was not constructively discharged.
3. The judge also found, and we agree, that the
Respondent violated Section 8(a)(1) and (3) of the
Act by issuing warnings and 1-day suspensions to
employees Susan Segal and Rose Cicalese in retal-
iation for Segal's union activities, and by discrimin-
atorily applying its no-solicitation rule.
The facts show that Segal was a leading union
advocate. During the election campaign, she dis-
tributed union literature, solicited authorization
cards, and served as an election observer. After the
274 NLRB No. 179
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election, she organized the union committee at the
hospital, and in January 1983 was elected chairper-
son of the Council of Nursing Practitioners at
South Nassau. Furthermore, the evidence shows
that the Respondent knew Segal was actively in-
volved with the Union. In fact, the Respondent
was aware that Segal possessed union literature the
day she allegedly violated the hospital's no-solicita-
tion rule. The record shows that Segal received a
package at the hospital which had been slightly
opened by nursing supervisors, who had the oppor-
tunity to observe that the material was from the
Union.
The facts surrounding Segal's alleged distribution
of union material in the ICU "coffeeroom" or
"charting room" are disputed. Segal testified that
after work she picked up the package containing
union literature and proceeded to the ICU "cof-
feeroom." According to Segal and Cicalese, Cica-
lese took a pamphlet from Segal's box because Ci-
calese was curious. Supervisor Anne Miller, how-
ever, testified that she saw Segal give Cicalese a
pamphlet, thus violating the hospital's no-solicita
tion rule.
Miller also testified that the Respondent main-
tains a progressive disciplinary policy and that sus-
pensions are normally instituted only after written
warnings have been issued. In this case, by con-
trast, Segal and Cicalese received suspensions si-
multaneously with their first warning. It is clear,
therefore, that the Respondent suddenly and with-
out explanation departed from its usual disciplinary
procedure. Furthermore, we find that there was
only a cursory investigation given to the matter at
issue, which was also contrary to the Respondent's
past practice. Supervisor Mooney testified, "We try
to investigate as best we can to find out how valid
the complaints are." Undoubtedly, the suspension
of an employee would be entitled to a thorough in-
vestigation as evidenced by the Respondent's past
practice. In this case, however, Segal was never
questioned concerning the circumstances surround-
ing the alleged violation of the hospital's no-solici-
tation rule, despite the controversy concerning
whether a distribution or solicitation actually oc-
curred. In fact, Mooney testified that whichever
way the incident happened it was a violation of the
hospital's rule. These facts, together with the Re-
spondent's union animus and its knowledge of
Segal's active involvement with the Union, support
our conclusion that the employees' warnings and
suspensions were in retaliation for Segal's union ac-
tivities and violative of Section 8(a)(3) and (1) of
the Act.
We also find that the Respondent has failed to
show that it would have taken the same action
against the employees, even in the absence of
Segal's union activities. The Respondent argued
that the employees were in violation of its no-solic-
itation rule as it applies to a patient care area.3 The
Board has held that prohibitions on solicitation in
immediate patient care areas are presumptively
valid. Intercommunity Hospital, 255 NLRB 468, 471
(1981). The judge found, however, and we agree,
that the Respondent disparately enforced its no-so-
licitation rule. The record shows that the employ-
ees engaged in various forms of solicitation in the
ICU "coffeeroom" or "charting room." Employee
Siragusa testified that collections were taken in the
"coffeeroom" for marriages, births, baby showers,
and for people leaving the ICU. She also testified
that she collected contributions in the "coffeer-
oom" from other nurses . Employee Peterson testi-
fied that she posted notices in the "coffeeroom's"
bulletin board concerning a Christmas party. She
further stated that Supervisor Markert used the
"coffeeroom" on a daily basis and that, when Pe-
terson was acting head nurse in the ICU, she was
not given instructions that collections were prohib-
ited in the "coffeeroom." Even in the absence of
direct testimony that supervisors observed these
transactions, we find that this widespread solicita-
tion by employees justifies an inference that the
Respondent had knowledge.4
Therefore, we find that the warnings and suspen-
sions Segal and Cicalese received pursuant to Re-
spondent's no-solicitation rule violated Section
8(a)(3) and (1) where the rule has been disparately
applied. 5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, South Nassau Communities Hospital,
Oceanside, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(d).
9 We find it unnecessary to pass on whether the "coffeeroom" or
"charting room" is a patient care area , since we find a violation of the
Act relying solely on the fact that the disciplinary action imposed on the
employees was in retaliation for Segal 's union activities, and because the
no-solicitation rule was disparately enforced In addition , we find it un-
necessary to rely on the judge's statement in his decision that the harsh
penalty of a warning and suspension for a first offense "raises a suspicion
that something else may have inspired this action " The record evidence
fully demonstrates the Respondent's discriminatory motivation in this in-
stance
4 Hammary Mfg Corp, 258 NLRB 1319, 1322 (1981), modified in
other respects on motion for reconsideration 265 NLRB 57 (1982)
s Saint Vincent's Hospital, 265 NLRB 38 (1982), enfd in pertinent part
729 F 2d 730 (11th Cir 1984)
SOUTH NASSAU HOSPITAL
"(d) Warning and directing its employees to re-
frain from distributing or accepting union literature
in retaliation for the employees' union activities."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT suspend or issue warning notices
to you as a result of the disparate or selective ap-
plication of our no-solicitation rule.
WE WILL NOT warn or direct you not to distrib-
ute or accept union literature in retaliation for your
activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole Susan Segal and Rose Ci-
calese, with interest, for any loss of earnings they
may have suffered as a result of our discrimination
against them.
WE WILL expunge from our files any reference
to the suspensions of Segal and Cicalese, and warn-
ing notices issued to Segal, Cicalese, Theresa Peter-
son, and Aida Siragusa, and WE WILL notify them
this has been done and that evidence of this unlaw-
ful action will not be used as a basis for future per-
sonal action against them.
SOUTH NASSAU COMMUNITIES HOSPI-
TAL
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was tried before me in Brooklyn, Mineola, and New
York, New York, on numerous days between September
6, 1983,1 and January 3, 1984. The amended complaint
and notice of hearing in Case 29-CA-10018 issued on
December 27, and was based on a charge and amended
charge filed on October 14 and 28, respectively, by New
York State Nurses Association (the Union). The com-
plaint and notice of hearing in Case 29-CA-10397 issued
on May 18, 1983, and was based on a charge, a first
amended charge, and a second amended charge filed by
the Union on April 1 and 8, and May 16, 1983, respec-
I Unless indicated otherwise, all dates are for the year 1982
1183
tively. These two matters were consolidated by an order
consolidating cases dated August 8, 1983. The complaint,
as consolidated, alleges two areas of violations:2 one is
that South Nassau Communities Hospital, herein called
Respondent, issued written disciplinary warning notices
to two employees, Alda Siragusa and Theresa Peterson,
and reassigned Peterson from the Intensive Care Unit
(ICU), to a general surgery floor, and, by these acts,
caused Peterson to terminate her employment with Re-
spondent, all because Siragusa and Peterson joined and
assisted the Union and engaged in other protected con-
certed activities. The other aspect of the consolidated
complaint involves the enforcement of the following
rule:
SOLICITATION
Solicitation of patients or visitors by anyone on
hospital premises is strictly prohibited Solicitation
of hospital employees by non-employees or distribu-
tion of literature, pamphlets, or other material by
non-employees on hospital property is prohibited.
Solicitation by an employee of another employee
is prohibited in patient case areas or while either the
person doing the soliciting or being solicited is on
working time.
Distribution of advertising material, handbills, or
other literature is prohibited in patient case areas or
while either the person doing the distributing or re-
ceiving the material is on working time.3
It is alleged that on March 18, 1983, Respondent
warned and directed its employees to refrain from dis-
tributing union literature in the ICU coffeeroom (alleged-
ly a nonpatient-care area) and that Respondent interro-
gated its employees concerning their support for the
Union. Finally, the consolidated complaint alleges that
Respondent selectively and disparately enforced the no-
solicitation rule by issuing written warning notices and 1-
day suspensions to employees Rose Cicalese and Susan
Segal.
On the entire record, including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation with its office
and place of business in Oceanside, New York (the hos-
pital), is engaged in operating a nonprofit hospital pro-
viding medical and other health care services. During
the year prior to the hearing Respondent derived gross
revenue in excess of $250,000, and purchased and caused
to be transported to the hospital medical supplies, equip-
ment, and other goods and materials valued in excess of
2 During the hearing, the parties settled some 8(a)(3) allegations re-
garding Marion Conroy, by means of an out-of-Board adjustment
3 The complaint had alleged that the second and third paragraphs of
this rule were unlawful because of the ambiguity of the words "working
time " In his brief the General Counsel moves that this allegation be
withdrawn, this motion is hereby granted
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000 , which goods and materials were delivered to
the hospital directly from States other than New York
State. Respondent admits, and I find, that Respondent is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
In its answer , Respondent denies that the Union is a
labor organization within the meaning of Section 2(5) of
the Act The record is clear that the Union has all the
attributes of a labor organization as defined in Section
2(5) of the Act However, counsel for Respondent at the
hearing and in its brief alleges that "the Union does not
qualify as a labor organization because it is directed
and/or influenced by individuals who occupy superviso-
ry positions in health care institutions ," citing NLRB v.
North Shore University Hospital, 724 F 2d 269 (2d Cir.
1983). In that matter, the Union won an election at the
hospital, but the hospital refused to bargain with the
Union, contending that the Union's actions were "con-
trolled, directed and/or influenced" by supervisory em-
ployees. The judge and the Board found that the hospi-
tal's action violated Section 8(a)(5) of the Act and or-
dered the hospital to bargain with the Union. On appeal,
the court found that supervisors are active in the Union's
affairs, and denied enforcement and remanded the case to
the Board to determine more specifically, whether the
supervisory participation in the Union's operation, over-
all, was so extensive as to disqualify the Union from rep-
resenting these employees. North Shore is easily distin-
quished from the instant matter; the issue in North Shore
was whether the Union was disqualified from represent-
ing the employees involved. In the instant matter, repre-
sentation is not involved, the Union was the charging
party herein and there is no requirement that an unfair
labor practice charge be filed by a labor organization,
NLRB v. Indiana & Michigan Electric Co., 318 U.S 9 at
17 (1943) I therefore find that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act
III. THE FACTS
The genesis of this matter was a petition filed by the
Union to represent the registered nurses (herein called, at
times, RN) employed by Respondent After the hearing,
the Regional Director for Region 29 directed an election
which was conducted on May 13. A majority of votes
were cast for the Union and the Union was certified as
the collective-bargaining representative of these employ-
ees. Respondent refused to bargain with the Union and
in May 1983 a summary judgment action was com-
menced, the principal issue therein was similar to that in
North Shore, supra, i.e, whether the Union was disquali-
fied from representing Respondent's RNs because of the
supervisory participation in its operation The Board had
not yet ruled on this matter.
A. Organization of the Nurses
About September 1981, some of the registered nurses
(including Conroy and Segal) got together and decided
to ask the Union to organize the nurses employed by Re-
spondent. Conroy called the Union and a meeting was
held at her house on September 23, 1981 About 20 to 30
nurses attended this meeting, half were nurses in ICU, in-
cluding Peterson, Siragusa, and Segal. The union repre-
sentative explained that in order for them to be designat-
ed as their bargaining representative, the Union needed
at least a 30-percent showing of interest through authori-
zation cards. Cards were distributed, and signed by, inter
alia, Conroy, Segal, Peterson, and Siragusa Between that
date and the election in May, additional meetings with
the Union were conducted at Conroy's home. Approxi-
mately 15 to 20 nurses attended each meeting, and about
half of these nurses were employed in ICU.
B Events of May 16 and Its Aftermath
The hospital employs full-time nurses (37-1/2 hours a
week), part-time nurses (37-1/2 hours over a 2-week
period) and on-call nurses Assignments in the ICU are
usually made by the head nurse in the unit prior to the
start of the shift; in May nurses had no assurance of
having the same patients day after day; after the time in
question, Respondent instituted primary nursing care,
which attempted to assign the same patients to the
nurses, whenever possible. As of May 16, Mildred Muso-
lino Baribault (Musolino) had been the head nurse at
ICU for less than a month; prior to that, from about Jan-
uary, Peterson was the acting head nurse at ICU. ICU is
divided into two areas, there are 10 beds along three
sides of the principal ICU room, and in an adjourning
room is the four-bed respiratory ICU unit The optimum
manning situation in the unit (and one that generally
occurs, especially during weekdays) is for seven nurses
to be present for each shift, in addition to the head nurse
In this situation , each nurse is assigned two patients with
the head nurse monitoring the situation and covering
during coffee breaks and meals
May 16 occurred on a weekend, at a time when it is
not unusual for the unit to be understaffed; only Muso-
lino, Peterson, and Siragusa were present of the regular
nurses in ICU (excluding the two nurses who covered
the four patients in the respiratory ICU unit that day,
which is not relevant herein). In addition, a "float" (not
regularly employed in ICU or any other unit) licensed
practical nurse, herein called LPN, was assigned to the
unit for the shift involved-7 a m to 3 p m There were,
therefore, 4 nurses (including Musolino) to cover the 10
ICU patients that morning. Musolino arrived at the unit
about 6.45 and made the rounds to determine the patients
(and their condition) and her staff for the day. As it was
the weekend, she (as head nurse) had to assign herself to
cover patients, and they were short another nurse as
well. An additional problem was that one of the nurses
was a float nurse who was an LPN rather than an RN.
On that morning Musolino assigned Peterson to two pa-
tients, one was a woman with leukemia who had been in
the unit for a few days and the other was a man who
had arrived that morning with a high fever and signs of
infection She assigned Siragusa (who was a part-timer
who had worked the previous 2 days) to three patients,
only one of whom she had cared for the 2 prior days
On receiving these assignments, Peterson and Siragusa
each "questioned" Musolino about their assignments, Pe-
SOUTH NASSAU HOSPITAL
terson on the basis that it could be dangerous for her leu-
kemia patient (the risk of infection) for her also to be
caring for someone with a high temperature, and Sira-
gusa on the basis that she should have been assigned to
the same patients that she had the prior 2 days. This
much is agreed on by the witnesses; what is in dispute is
the manner and degree of questioning the assignments,
and the activities that followed.
Peterson testified that, on that morning, shortly prior
to 7, she learned of the two patients she was assigned to
on that day She was fearful that the combination of the
two patients posed the possibility of cross-contamination.
She then approached Musohno and asked her if she was
aware of the fact that she had assigned her to a leukemia
patient and an infected patient. Musolino told her: "Do
what you want, I'm not changing the assignment " As to
her tone of voice at the time Peterson testified: "We
were next to each other" and they were not screaming.
That was the first occasion that Peterson had questioned
Musolino about an assignment on ICU. Siragusa testified
that she arrived for work on that morning about 6.45; at
that time she noticed that of the three patients she was
assigned to that day, only one was a patient she had pre-
viously been assigned to; Peterson's leukemia patient had
previously been her patient. "The policy at that time for
primary care was to continue with an assignment for as
many consecutive days as you are on duty if the staffing
and the problems allowed." She then approached Muso-
lino at the nursing station and questioned her-"Why did
you change my assignment?" Musolino answered that
they were short that day and she had to give her three
patients, so she changed her assignment. Siragusa an-
swered that three patients were no problem , but she
wanted to keep her previous patients; Musolmo did not
answer her. Siragusa testified that she was speaking in a
normal tone of voice, "I never yell," but that "I was
probably a little unprofessional because I did . . . show a
little annoyance . . but I was not really rude or loud."
Siragusa testified that she overheard Peterson question-
ing Musolino about her assignment (as Peterson testified)
in a normal tone of voice and Musohno raised her hands
and her voice and said "You and Sira [Siragusa] do what
you want " Peterson testified that on that morning she
overheard Siragusa (in a normal tone and volume) ask
Musohno why she changed her assignment, but Peterson
walked away at that point and did not overhear Muso-
hno's response Peterson and Siragusa each testified that
after that they took care of their patients
Siragusa testified that it was a common practice in
ICU to question the head nurse about an assignment; she
did it when Peterson was acting head nurse and with the
prior head nurse as well, and knows of no nurse who
was ever disciplined for engaging in such action.
Musolino testified that Peterson approached her at the
nursing station with the assignment book in her hand
("she was very emotionally distraught") and yelled that
the assignment was all wrong, that it should not be that
way, and that Musolino still had not learned how to
make an assignment. Peterson then tossed the assignment
book aside and left the nursing station. Musolino did not
answer her as her priority was to complete the morning's
activities A few seconds later, Siragusa picked up the as-
1185
signment book, looked at it and said ("in anger and frus-
tration, and loud")- "It shouldn't be this way, this is not
my right assignment, you are picking on me, why are
you changing my assignment like this?" She also'threw
the assignment book and walked away After this, she
decided that she would discuss the situation with Peter-
son and Siragusa, she spoke first to Peterson, who ex-
pressed the fear that her two assigned patients presented
her with a fear of cross-contamination problem. That
was the extent of that conversation and Musolino then
went to speak to Siragusa who told her that as part-time
nurse it was confusing for her to have different daily as-
signments. Musolino agreed, but told her that since she
was one of the better nurses it was important that she be
utilized to care for the more critically ill patients. Mus'o-
lino testified that it was not unusual for a nurse to ques-
tion an assignment and, on occasion , she has changed as-
signments pursuant to those requests . However , the situa-
tion with Peterson and Siragusa was different because
their requests were angry and loud
Musolino testified further that after these conversa-
tions, she observed Peterson and Siragusa caring` for
their patients as a team , whereas normally there ' was
little cooperation among nurses in ICU ("Miss Peterson
was one of the people that was never available for
help"); because her main priority was her patients and
assisting the float nurse, she did not say anything about it
to Peterson or Siragusa until the end of the day. About
noon, Musolino was going to lunch and she asked Peter-
son to watch over the float nurse in her absence. Peter-
son's response was, "No, I am too busy." Musolino told
her to watch and help her even if she were busy, and left
for lunch. At the end of the shift, Musolino approached
Peterson, explained why she had made the assignment in
question, and told her that her actions that day were
harmful to the operation of the unit. Peterson responded
that she was an extraordinary nurse who performed extra
duties in addition to the high level of care she gave her
patients, and that she, therefore, had no extra time to
help anybody else. Musohno told her that everybody
performs these functions and that she had behaved in an
unprofessional manner and had refused to assist the float
nurse.
Musohno then approached Siragusa and explained why
she made the assignment as she had and said that she ob-
jected to the manner that Siragusa was yelling. Siragusa
apologized, saying that her behavior was inappropriate
and could have been handled in a more appropriate
manner. Siragusa testified that after her initial conversa-
tion with Musolino that morning, she took care of the
three patients that had been assigned to her. About 3,
Musolino approached her and said that she wanted to
speak to her Siragusa told her that she also wanted to
speak to her because she was sorry that she was upset;
she knew that she was having a difficult time in the new
position and she wanted to assure her that she would co-
operate with her in any way that she could. "She
thanked me and we were both quite happy."
Peterson testified that after the 7 a.m. discussion with
Musolino on May 16, nothing occurred in that regard
until May 19 or 20 ("[A]fter it occurred, I didn't think
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anything of it. I really didn't think anything had hap-
pened ") On that day she arrived at ICU about 6.30 a.m
and overheard Musolino telling Connie Miller, Respond-
ent's nursing supervisor that Peterson and Siragusa had
harassed her on Sunday and refused to perform their as-
signments. Peterson interrupted her and said that what
Musolino referred to never occurred and nobody har-
assed her, she then explained her side of the story to
Miller and left. Due to what she overheard Musolino tell
Miller, Peterson made an appointment to see Yvette
Mooney, at the time Respondent's associate director of
nursing, the following day At that time, she explained
her position of the events of May 16 and Mooney said
that she was aware of the events and it was being looked
into. Peterson told Mooney that she wanted Musolino to
apologize to her for saying those things about her.
On May 24 Musolino told Peterson and Siragusa to
report to the office of Kompson, the director of nursing.
They were immediately handed warning notices. The
warnings stated that they challenged Musolino's decision
on patient-care assignments and disregarded the assign-
ments, and their "Loud and abusive behavior" was un-
professional The warnings then quoted the employee
handbook which states: "The hospital has the right to
suspend or discharge any employee for gross and/or re-
peated violations of hospital rules, regulations and poli-
cies including, but not limited to, the rules and regulations
listed above" (emphasis added). The warnings concluded
by stating that any repeat of the behavior would result in
immediate termination and any other breach of hospital
policy would be dealt with by further disciplinary action.
The form language at the bottom of this notice said basi-
cally the same thing. After reading this warning Peterson
told those present her version of the May 16 incident;
she said that she did not challenge the assignment, she
questioned it for the benefit of her patients. She also said
that she did not remember being loud and abusive as the
warning notice alleged. Musolino said that was how she
perceived it. Peterson asked who else they had spoken to
about the incident and they refused to tell her.4 They
were told that they would later meet Respondent's exec-
utive director Rodzenko; Peterson met with Rodzenko in
July and he said that after considering the matter he had
decided that the warning notice would be removed from
her record after 6 months She told him that the warning
should not be on her record at all and that she would
like to have a fair hearing where she could present wit-
nesses who were present on May 16. Rodzenko, who did
not testify, told her that they do not have trials at Re-
spondent, and he would not trust any of the ICU nurses
anyway; "funny things" were taking place on ICU. Pe-
terson said that she thought that in America the demo-
cratic way would be for her to receive a hearing Rod-
zenko said, "Don't start waving your flag at me, this is
how Communism gets started " During this meeting Pe-
terson asked Rodzenko if it were not true that during the
next 6 months she could be fired for any minor infraction
like being 5 minutes late to work , and he said that was
true.
Siragusa testified that at this May 24 meeting she and
Peterson denied the allegations contained in the warning
notices; they said that they questioned the assignments
for the safety of the patients . They were told that the
proper procedure was to do the assignments and question
it later. Siragusa admitted that she was displeased with
the assignment , but had performed them properly; she
denied that she was loud and abusive in questioning the
assignment . Musolino then said that they had worked as
a team that day, which Siragusa denied ; Musolino said
that was what she observed . She was told that she would
subsequently be meeting with Rodzenko . She met with
him on May 28 and presented her version of the events
of May 16; he told her that her version was in conflict
with that of Musolino ; the meeting ended inconclusively.
She met Rodzenko again in mid -July, at which time he
told her that the warning notice would be removed from
her file in 6 months . She told him that was unacceptable
since it was not justified . She asked him if that meant she
was on probation for 6 months , and he said that it did.
Musolino testified that on May 16 she had lunch with
Kroll, the acting supervisor of the day:
And we talked about it over lunch. I went, you
know, guess what happened to me today? That kind
of conversation. And I thought that was going to be
the end of it. But what happened was Miss Kroll
did report it to the Supervisor.
On cross-examination, in testifying about this conversa-
tion with Kroll, Musohno testified: "Well, at the time, it
was just a casual conversation among friends. I didn't
expect anything to come of it." Musolino never recom-
mended that any action be taken against Peterson or Sir-
agusa for the events of May 16 The supervisor whom
Kroll reported this conversation to was Pat Markert
who, in turn, reported it to Kompson. Shortly thereafter
Markert asked Musolino to prepare a written statement
of the events of May 16, which she did.
There is an allegation that Peterson was constructively
discharged by Respondent (due to her activities on
behalf of the Union). Admittedly, by letter dated Sep-
tember 8, she resigned her employment with Respondent
effective the following day. Also uncontested is that on
July 23 Peterson was notified that she was being trans-
ferred from ICU to a general medical surgery care floor.
At issue is whether her subsequent resignation amounts
to a constructive discharge.
Peterson testified that on July 23 after she had just
completed an 11 p in. to 7 a.m shift on ICU, Markert ap-
proached her and told her that her evaluation due in
February5 was completed and she wanted to discuss it
with her. Peterson asked her to give it to her at a later
time, as she had just completed the night shift and she
was very tired. She explained that she was leaving on
5 Admittedly, evaluations are often received substantially after they are
4 Peterson testified that she later questioned the other nurses who were due For example, Siragusa had an evaluation that was due December
present on the morning of May 16 and they said that they were never 1980 and was received by Respondent's personnel department May 21,
spoken to,by Respondent about the incident 1981
SOUTH NASSAU HOSPITAL 1187,
vacation and she would get it when she returned Mar-
kert (who did not testify) was insistent (explaining that
she was leaving Respondent's employ) and gave her the
evaluation Peterson said that she was too tired to read it
and since it was 6 months' late already, it could wait an-
other 2 weeks Markert told her that she had to read it
and Peterson said that she would not read it because she
was on her own time. Markert then said, "I hope you re-
alize that you are being transferred out of the ICU unit,"
and Peterson said that she was not aware of it. Markert
told her to read the last page of the evaluation. This
evaluation generally refers to her negative and unsuppor-
tive attitude and states. "these behaviors are the same or
similar to those exhibited when you were staff nurse . .
[prior to Musolino assuming the head nurse position in
ICU in about late April]." The evaluation ends by stat-
ing: "therefore I have recommended your transfer from
ICU to another unit which will provide a fresh and unbi-
ased environment for reevaluation of your performance
in 6 months " At this point Peterson (who had not re-
quested a transfer) left.
On leaving Markert, Peterson immediately went to see
Mooney and told her she was very upset about being
transferred out of ICU, and asked why she was trans-
ferred. Mooney told her that there was personality prob-
lems and a lot of stress in ICU between herself and Mu-
sohno; she also told Peterson that she should have ac-
cepted the position of head nurse in ICU when it was of-
fered to her in early 1982. Peterson said that she wanted
to remain in ICU and there would have been no stress in
the unit if not for the warning notices. Peterson was
scheduled to work the next evening, but she called Re-
spondent and reported that she was ill. She then began a
2-week vacation, to return about mid-August. Between
that time and September 8 she did not report for work;
she was under a doctor's care and reported to Respond-
ent that she was ill During this period she decided that
she would not return to Respondent's employ and she
went on job interviews to other hospitals. She called
Mooney and made an appointment to see her on Septem-
ber 8 (Mooney testified that prior to this date Respond-
ent had received a reference request about Peterson from
Mercy Hospital.) On that date she gave Mooney her res-
ignation letter and apologized for not giving her 4
weeks' notice, but stated that she could not work in her
new assigned unit . Mooney said that she was sorry it had
to end that way, but she understood and Peterson left
Peterson testified that between late July and early Sep-
tember she changed her mind on a number of occasions
as to whether she would return to Respondent's employ;
during that period she had three job interviews at other
hospitals; one of these interviews was at Mercy Hospital
where she received an offer prior to September 8; how-
ever, Peterson could not positively identify the date she
informed Mercy Hospital that she would accept its em-
ployment offer She commenced her employment at
Mercy Hospital on October 11.
Musolino testified that her relationship with Peterson
was not too good when she started as head nurse at ICU
and the events of May 16, together with the subsequent
warning notice, "made it a great deal worse." Their rela-
tionship was cold with almost no communication, con-
versations between them were minimal. She testified to
incidents where, in her opinion, Peterson was attempting
to undetermine her authority in ICU In one situation, a
patient had died, but Peterson failed to inform her of it,
and when the resident came to pronounce that patient
dead, Musolino felt like a fool since she was not aware
of it. In another situation involving the transfer of a car-
diac arrest patient, Peterson did not inform Musolino of
the protocol in the unit regarding such a transfer and as-
sumed duties that belonged to Musohno regarding this
patient , "she had just stepped in and intervened and took
control " Mussolino informed Markert of these incidents
and was told to set limits, when necessary, and to stand
her ground.
Musolino testified to two other incidents that suggest
the relationship between them Peterson had scheduled
her 2-week vacation at the end of July, and had added
some holidays and a free day to the time. Musolino ap-
proved the entire period, but Markert informed her that
Peterson was not allowed to add those days to her vaca-
tion time. When Musolino told this to Peterson, Peterson
was very upset and said that she had already made travel
plans and was going to take the time anyway, which she
did. In another incident, Musolino was asked by a nurse
if she wished to contribute to a collection for a nurse,
and she did contribute. Later that day, Peterson ap-
proached her, threw the money across her desk, and
said , "[T]ake it back, we don't want your money." Peter-
son also testified regarding this incident; it occurred ap-
proximately July 20 and the nurse whom the collection
was for told her that she did not want a contribution
from Musohno. When another nurse gave her Musolino's
contribution Peterson went to Musolino.
I said excuse me, but we have enough money
. for the gift, we really don't need the money
thank you very much and then I walked away and
then she came . . like tell me the real reason why
you don't want my money
When Musolino refused to accept Peterson's excuse
that they already had enough money, she told Musolino
that the nurse whom the party was for asked them not to
accept a contribution from her.
Musolino testified that after these incidents she could
no longer communicate with Peterson. ("[T]he other in-,
stances were on a professional level, and that I could
deal with This was strictly personal and it hurt a little
too much.") She testified:
I realized that this was not going to work in an
ICU situation. That we had to have communication
between management and staff or the unit wouldn't
work. I felt that something had to change . . I
brought my feelings to Miss Markert, and I told her
that this had happened, that I couldn't take it any
more and that something had to change. I just
dumped it in her lap.
She testified that in this conversation she did not rec-
ommend that Peterson be transferred: "I would have ac-
cepted a transfer if it was offered to me. At that point I
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew that we couldn't work together There had to be
some change. I really didn't care which way it went "
She also testified that Markert told her that it would be
"awkward" for Peterson to accept a transfer out of ICU,
that she might be too embarassed to accept the transfer
and might quit rather than accept it.
Peterson testified that between May 16 and the end of
July she was very careful at work; "I felt I was being
watched, I knew that I could be fired at any time, so
I did everything right, I excused myself if I was
going on break " She took care of her patients,- informed
Musohno of her patients' condition, and gave excellent
patient reports. "I did everything the way things should
be done . . . I was doing everything by the book." She
also testified that there was an uncomfortable feeling be-
tween her and Musohno during this period, and their re-
lationship was not the best. Prior to receiving the evalua-
tion in July, she had never received a negative evalua-
tion of her work
From January through April, Peterson was acting
head nurse at ICU, Peterson did not want the position on
a permanent basis and when Musolino assumed the posi-
tion Peterson was told that the hospital expected her to
assist and teach Musolino in her new position. Mooney
testified that at first she received positive reports that Pe-
terson was assisting Musolino; this changed in mid-May.
Mooney testified that Peterson and Siragusa received
warning notices not for questioning their assignments.
"every nurse is allowed to question her assignment."
They received their warnings (according to Mooney)
because they refused to abide by Musohno's decision and
performed otherwise by acting as a team after Musolino
explained the situation to them. Mooney testified further
that prior to the issuance of the warning notices, she
only discussed the incident with Markert and Musolino;
she does not know whether the residents of the other
nurses who were present at the time of incidents were
contacted and interviewed (Mooney was not the direc-
tor of nursing at the time) She also testified that she
does not know whether Respondent contacted Peterson
and Siragusa for their version of the incident prior to the
issuance of the warning notice, although Peterson and
Siragusa testified that they were not questioned about it
prior to that time Mooney testified that the float nurse
on duty on May 16 was not contacted by Respondent
prior to the issuance of the warning.
Mooney testified, as well, that between May and July
she maintained a close watch on ICU; she learned that
during this period that Siragusa "was compliant, she was
quiet and she dust did her work." However, although Pe-
terson did her work, she "did not talk to anybody, did
not offer any information about her patients if she was
approached, she just answered in a yes or no." This
problem only involved her interaction with Musohno;
she answered questions, but with a minimal response Pe-
terson's actions caused a lot of stress in the unit, this,
combined with the two incidents that Musolino later re-
ported to her (the deceased patient and the return of the
money Musolino contributed to a fellow nurse) con-
vinced her that the relationship between Peterson and
Musolino would never improve, and that the ICU could
not operate that way, and therefore Peterson was trans-
ferred According to Mooney's testimony, a similar situa-
tion occurred with Peterson on a different unit years ear-
lier, when a new head nurse was assigned to the unit,
"[I]t was the same type of behavior in that she was dis-
satisfied with the way things were done and she verbal-
ized them out loud . she confined all her answer to
yes or no and didn't volunteer any information."
In regard to the alleged constructive discharge, Peter-
son testified that she commenced her employment with
Respondent in 1974. About 1979 she requested a transfer
from the acute surgical floor; she told Markert that be-
cause that unit was expanding, the patients in that unit
were not as acutely ill as they had been, and she pre-
ferred more intensive care type patients and was trans-
ferred to ICU In January, when there was a vacancy in
the head nurse position at ICU, Peterson was offered the
position on a number of occasions by Mooney and Mar-
kert She refused these offers, telling Mooney and Mar-
kert that there was too much paperwork as head nurse
and she missed caring for the acutely ill patients When
Markert told her that she should consider the head nurse
position in another unit, if it arose, Peterson told her that
she was only interested in the acutely ill patients on ICU
Peterson testified that working with ICU patients is more
stimulating than working on regular units and it requires
a little more skill (as illustrated by the ratio of two pa-
tients to one nurse compared to higher ratio for other
units) The fact that she enjoyed working in ICU, togeth-
er with the fact that the warning notice meant that she
could be fired for any minor infraction, convinced her
that she would have to be extremely careful in her
action , and she could not work in that manner; that is
why she did not return to work after receiving the warn-
ing and transfer.
Mooney testified that prior to Peterson's resignation
she had no discussions with Markert or Musolmo where
they told her that Peterson might resign rather than
accept a transfer out of ICU. There are different skills in
ICU and the unit that Peterson was transferred to. Muso-
lino testified that in any hospital the ICU is considered
the most prestigious unit and in her opinion, being trans-
ferred from ICU "could be viewed as a step down "
Prior to the incident in question, Peterson and Siragu-
sa's work records were unblemished, neither had ever re-
ceived a warning, reprimand, or any other indication
that their work or attitude was not satisfactory.
Mooney testified to a situation in November 1982
where she had to transfer three employees (one of whom
was an RN) out of one unit because of a long-term con-
flict that had prevented everybody else in the unit from
feeling comfortable working in the unit. They were all
good employees, but this personality problem made it a
difficult situation. Prior to the transfer there were four or
five conferences between these employes, the head nurse,
the supervisor, and/or Mooney After each, matters im-
proved briefly, and then deteriorated again . In addition,
in early 1979, a nurse was transferred to a different de-
partment because Respondent determined that her work
performance was not adequate- ("We try to investigate
as best we can to find out how valid the complaints
SOUTH NASSAU HOSPITAL
are ") Prior to this transfer she was counseled by her
head nurse and supervisor on two or three occasions
Further, in October 1983, two nurses were terminated
by Respondent because they refused to be transferred,
temporarily, to another unit to assist that unit There was
no valid reason for their outright refusal to go, and they
were terminated
Peterson signed an authorization card for the Union at
the September 1981 union meeting at Conroy's house
and she attended all the remaining union meetings at
Conroy's house In addition, on three or four occasions,
nurses (usually from different units) approached her and
asked her questions about the Union, she answered them,
and encouraged them to attend the union meetings She
also attended the ballot count at the conclusion of the
Board election, at that time she wore a union button (the
top half was white and said, "I'M FOR NYSNA", the
bottom half' was green and said, "I'M FOR NURS-
ING") She sat with Conroy, Siragusa, Segal, and others
who were also wearing this button, Markert, Musolino,
and other supervisors were also there, about 50 individ-
uals were present in the room
In answer to a question from the General Counsel as
to whether the Respondent, through Rodzenko, took a
position during the preelection period of whether the
employees should vote yes or no for the Union, Mooney
testified, "All we encouraged the nurses to do was vote."
She then testified that Respondent's preelection literature
may have said more than that they should just vote, this
was followed by her testimony that "I guess some of
Respondent's literature requested that the employees
vote against the Union. She also testified that she does
not remember that Rodzenko, in meetings with supervi-
sors, identified certain units as areas of concentration of
strength for the Union, nor could she remember whether
or not Rodzenko referred to the ICU as one of the hot
beds of union support.
Siragusa also attended all the union meetings, includ-
ing the first meeting in September 1981 at Conroy's
house where she signed an authorization card for the
Union. In addition, before or after work, she distributed
union authorization cards or union literature to fellow
employees in the locker rooms or parking lot of Re-
spondent's premises on 10 or 12 occasions Beginning in
December 1981 or January 1982 she wore the union
button, described, supra, everyday on the front of her
pocketbook when she came to work. She was carrying it
displayed when she signed in at the nursing office; super-
visors are usually present in the office Siragusa was also
one of about four or six union observers at the Board
election Musolino testified that some time shortly before
the election (at a time when she was head nurse at ICU)
at a staff meeting, Rodzenko referred to the ICU as "one
of the hotbeds of union support" at the hospital, in addi-
tion, at a staff meeting after the election, in discussing
the results of the election Rodzenko was very upset and
very emotional. Musolino also testified as follows regard-
ing a discussion with Rodzenko where she questioned
him about the warnings issued to Peterson and Siragusa-
Q. And isn't it true that during these discussions,
at least one of them, that you raised the question
1189
that if the particular incident with Siragusa and Pe-
terson had happened at another time, that a warning
would not have issued?
A That was my concern
Q And what did Mr. Rodzenko say to that?
A He indicated that the timing was important
Q Did he say that if it had happened at another
time the warning might not have issued at all?
A Yes
Q Didn't he say unfortunately it was they wrong
time and place.
A Yes
Later in questioning, I asked Musolino if Rodzenko
was more specific about what he meant by time
A. Well, he implied that it was because of the
union activity in the hospital
Q But did he ever say that to you? Did he men-
tion the union in that conversation, or the election
in that conversation?
A I don't recall if he actually said the word, or
if that was just the implication
Finally, Musolino testified that she "knew through the.
grapevine . . just that they supported the union," but
that had no effect upon her decision to inform Kroll of
the events of the morning of May 16.
C The March 18, 1983 Incident
Susan Segal, an RN on the ICU, worked the 11 p.m
to 7 a.m. shift. Rose Cicalese, also an RN on the ICU
worked the 7 a.m. to 3 p.m. shift. Their meeting and its
aftermath, on the morning of March 18, 1983, between 7
and 8 a m , are the subjects of the discussion below.
Segal finished her shift at 7 a m. and was sitting at one
of the nursing stations doing some work necessary before
leaving (filling out the patients' forms) when she re-
ceived a telephone call, about 7.10, from Papatsos, the
night supervisor, who told her to stop by the nursing
office (on the same floor as ICU) before she went home
that day By 7 25 Segal had completed her work and was
having a cup of coffee when she received another tele-
phone call from Papatsos who reminded her to stop by
the nursing office She then went directly to the nursing
office where Connie Miller, nursing supervisor, Shine, a
day supervisor, and Papatsos were present. Papatsos
handed her a small carton (8 to 10 inches square) and
told her that this was her personal mail that had been
sent to her at the hospital, and she was never to receive
personal mail again at the hospital. Nothing else was said'
and she left the room. She noticed that the carton had
the Union's logo on the mailing label and the top of the
carton had been opened 6 The contents on the inside'of
the carton had a paper wrapping with cord tied around
it The cord was intact, but the paper wrapping was
slightly torn in one corner, but Segal testified that could'
have occurred in transit. Segal then opened the carton,'
ripped a corner of the wrapping paper and saw that it
6 Segal testified that letters (principally thank you cards) sent to nurses
at the hsopital had previously been opened by Respondent
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a list of the Union 's elected council members. She
then returned to ICU and asked Lisa Callinan , an RN on
the 11 p . m to 7 a m shift if she completed her work for
the day . When she said that she had, Segal asked her to
accompany her back to the nursing office because she
wanted someone to witness her prior conversation. She
and Callman then returned to the nursing office; when
she got there (Shine, Miller, and Papatsos were still
there) she held the package in front of her and asked Pa-
patsos if this was the package that she had dust handed
her in that opened manner and she answered that it was
She then asked her if this were her personal mail and Pa-
patsos said that it was . Miller than interrupted by saying
that nobody in the nursing office opened it-it was hos-
pital policy to open all incoming mail, but they did not
open it Segal said that she wanted to clarify that it was
her personal mail, and she was again told not to receive
personal mail at the hospital , and she and Callman left.
She then walked down the hall and returned to ICU
about 7:50 (according to Segal 's testimony , other wit-
nesses differ as to the time, but these differences are not
crucial ) and immediately walked into the ICU coffee-
room (or doctor 's charting room as some of Respond-
ent's witnesses often referred to it); the door providing
entry to this room is in ICU ; however , the testimony re-
garding this room will be discussed more fully, supra
When she entered the room , the following people were
present : Carol Palma , the head nurse was seated having
coffee and a cigarette ; Robin Williams and Patty Lyman
(both nurses) were discussing patients ; Julie DeGiamo (a
nurse on the 11 p.m. to 7 a.m. shift ) was sitting looking
at a patient 's chart and Cicalese was sitting in a chair just
to the right of the door , drinking a cup of coffee. After
entering the room , Segal sat on a stepstool ; on one side
of her , and closest to her was Palma; on the other side
was Cicalese . With the carton on her lap , Segal then put
her hand in the carton and attempted to carefully
remove the contents within the wrapping without further
disturbing the package itself in case it developed that Re-
spondent , by opening the package , violated a Post Office
regulation . The leaflets inside the wrapping were tied
with cord and she cut the cord with a scissor and took
out one leaflet (a green piece of paper , about 8 inches by
10 inches) which lists the Union 's officers at Respondent;
Segal is the chairperson . That was the first time she had
seen this document.
Because there are some conflicts in the witnesses ' testi-
mony , each will be discussed individually . Segal testified
that after seeing the pamphlets she held it up in her hand
for the people to see and said that she could not believe
what the fuss was about Palma told her that she should
not be doing that . Segal either did not answer her or told
her that she was not doing anything . According to Segal,
Cicalese then said , "Let me see , too," leaned over, and
took the pamphlet out of Segal 's hand . At that moment,
Segal looked up and saw Miller enter the room and say
that she was not allowed to have (or do) that Segal said
that she was not doing anything; that she was examining
her mail that had been opened for her. Miller then took
the pamphlet that Cicalese was holding and asked Segal
to step outside the room , which she did . Miller told her
that she was not allowed to do that in the hospital and
Segal said that she was not doing anything Miller said
that she was handing things out , which Segal denied.
Segal then told Miller that she had something Miller
should read and returned to the coffeeroom and got from
her pocketbook a union pamphlet on employee rights,
which she gave Miller Miller then asked Segal if she in-
tended to hand out the green pamphlet anywhere in the
hospital Segal answered that she would "absolutely"
hand it out at her convenience At that point Segal left
Segal next reported for work on March 22, 1983, for
the 11 p in. to 7 a in. shift On the next morning, when
her shift had been completed , the night supervisor, Gil-
more, told her that she wanted to speak to her when she
completed her reports . At that time , at Gilmore's re-
quest , Segal followed Gilmore to the office of Bernard
Higgins, Respondent 's personnel director , Higgins, Gil-
more, and Palma were present , in addition to Segal Hig-
gins asked Segal if she were familiar with Respondent's
policy on solicitation ; he showed her the policy in Re-
spondent 's handbook and read to her what the handbook
said about solicitation . Segal said that she was aware of it
and he told her that he felt that she violated the policy;
she disagreed with him Higgins then gave Segal the fol-
lowing warning notice (signed by Palma) which he also
read to her:
In my presence , Susan Segal on the morning of
March 18, 1983 violated hospital policy by being in-
volved in the distribution/receiving of literature to
another staff nurse while she was "on working
time." (Two nurses were engaged in intershift
report , one nurse was charting ) This is clearly a
violation of hospital policy on Solicitation, PE 21,
Personnel Policy Manual.
You are hereby suspended for one night as of
March 25, 1983. You are expected to return to
work as scheduled on March 26 , 1983. Any further
repeated violation of solicitation policy of this hos-
pital will subject you to further disciplinary action
which may include suspension and/or termination
of employment.
(Policy has been posted in Nursing Office sign-in
area for some time )
After receiving this warning (really a suspension)
Segal told Higgins that she was not soliciting at the time,
and she was not on working time since it was 7:45, Cica-
lese was on a coffeebreak, and the incident occurred in
the coffeeroom , which is not a patient-care area. She also
told him that she did not hand the leaflet to Cicalese, Ci-
calese took it from her. Higgins said that he still felt that
hospital policy had been violated and she was given the
warning and was suspended from her next scheduled
shift on the evening of March 25, which she was not
paid for . Segal testified further, that within a month of
receiving this suspension , during a conversation with
Palma, Segal told her that she was upset by the incident
and felt that the suspension was not warranted. Palma
said that she was a little surprised herself at the severity
of the action , and did not learn of it until that same
morning. (Palma did not testify.)
SOUTH NASSAU HOSPITAL
Cicalese testified that when Segal entered the coffee-
room that morning (while she was on her coffeebreak)
she told those present that earlier that morning she was
informed by the nursing office that she had received a
package in the mail She picked it up in the nursing
office and it was from the Union and it had been opened
by the hospital. She also said that somebody told her
that she was not to receive personal mail at the hospital.
Cicalese observed that the carton had been opened, but
the flaps were closed. Segal sat down in the front of, and
the left of Cicalese, about 2 feet away from her Cicalese
asked Segal what was in the box and Segal reached into
the box and took out the green pamphlet and showed it
to Palma Palma said that she was not supposed to dis-
tribute "that kind of literature " here and Segal moved
her hand (with the pamphlet) away from Palma Cica-
lese, who could not see what the pamphlet said , was cu-
rious about it, and reached into the carton and took out a
pamphlet and began to look at it As she was looking at
the pamplet , she looked up and saw through the glass
wall (behind where Palma was sitting ) that Miller was
walking by. Miller then walked into the room and Cica-
lese put the pamphlet back into the carton . Miller told
Segal that she should not have that material there and
Segal gave Miller a pamphlet from her pocketbook.
Miller then asked Segal to step outside and, at that point,
Cicalese returned to work.
Cicalese testified further that about 10 a.m. that day
Miller called her into her office and asked her if she
would write out the events of that morning She said
that she would , and asked why; Miller told her that
Mooney and Respondent 's attorney would see the state-
ment and Cicalese complied. The next she heard of the
incident was on March 24 when she learned that Segal
was suspended ; she asked Palma about it and asked:
"What about the rest of us that were in the coffee
room?" Palma told her that she was to be suspended as
well, and took her to Higgins' office . Higgins asked her
if she knew why she was there , and she said that she un-
derstood that she was being suspended for a day, al-
though she did not know why Higgins read from the
following warning notice (signed by Palma) which he
than gave to Cicalese.
In my presence , on the morning of March 18,
1983, you violated hospital policy by being involved
in the distribution/receiving of literature while on
working time This is clearly a violation of hospital
policy on Solicitation , PE 21, Personnel Policy
Manual
You are hereby suspended for one day as of
March 24, 1983. You are expected to return to
work as scheduled on March 26, 1983.
Any further repeated violation of solicitation
policy of this hospital will subject you to further
disciplinary action which may include suspension
and/or termination of employment.
(Policy has been posted in Nursing Office sign-in
area for some time )
Cicalese told Higgins that she was very upset about it
and could not understand why she was suspended for
1191
what she did Higgins said that by distributing or receiv-
ing literature she violated Respondent 's no-solicitation
rule. Cicalese said that she was not distributing or solicit-
ing pamphlets , Higgins said that she was receiving pam-
phlets and Cicalese said that she reached into the carton
for the leaflet out of curiosity, she knew it was from the
Union and she wanted to see what it said. She also told
him that it was not her worktime as she was on a break
having a cup of coffee . Higgins told her that she was still
on worktime Cicalese told him that she had never had
any problems before, and she was upset over receiving a
warning in this situation He asked her to sign the warn-
ing, but she refused , saying that she did not agree with
its contents . Cicalese testified further, that after receiving
this warning she asked Palma when she learned of the
suspension . Palma told her that she knew that she was
going to be suspended, but had not seen the warning
until she signed it that day in Higgins office The follow-
ing week Cicalese asked to speak to Mooney about the
warning and suspension . She explained why she felt it
was unwarranted and unfair ; Mooney told her that she
had the literature in her hand and she knew it was from
the Union . Cicalese said that she took it only out of curi-
osity, and
. . that the ironic part about it was that I didn't
support or believe in a lot of the things that some of
my peers were believing . . . specifically , the union,
.. . and I don't like being . . associated with any
one group of people . . just because I happen to
be there that doesn't mean I believe everything they
believe in or don 't believe in.
Miller testified that earlier on the morning of March
18, 1983, she was in the nursing office when Segal was
called to get her carton . She did not handle or read any-
thing in the box, but she saw that it contained unusual
green colored papers , and she saw that it was from the
Union . Later , as she was passing the coffeeroom , she ob-
served Cicalese entering the room and she saw Segal
handing her a green paper , as she entered the room. Ci-
calese sat down with the paper and Miller came to the
doorway and said , "Susan , you're not permitted to dis-
tribute that literature here, these people are working."
Segal said that she had something for Miller, and took a
union brochure out of her pocketbook and gave it to her.
Segal told Miller that she should be aware of the rules
referred to in the union brochure. Miller told her that it
was her understanding that she was not permitted to dis-
tribute "that type of literature " in work areas. Miller
then met with Palma and asked her what had occurred
before she arrived. Palma said that Segal had the box on
her lap and Palma told her that she was not permitted to
distribute the literature there; at that point , Cicalese en-
tered the room and removed the pamphlet from the box.
Miller said that she had observed Segal hand the pam-
phlet to Cicalese, but Palma said that she did not see it
that way. Miller then informed Mooney of the incident,
that Segal handed union literature to Cicalese , and Cica-
lese accepted it and sat down and started to read it.
Miller testified that in her opinion Segal 's action war-
ranted disciplinary action because she distributed litera-
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ture in a working area, she also testified that in her opin-
ion, Cicalese did not do anything that warranted disci-
pline According to her testimony, Respondent maintains
a progressive disciplinary policy where
. . normally a person is counseled, depending
on the incident, verbally . . and then if that be-
havior continues, then they receive a written warn-
ing. And with subsequent written warnings they
may be liable to suspension or to being terminated.
She knows of no prior disciplinary action taken against
Segal
Mooney testified that on the morning of March 18,
1983, Miller informed her of what she had seen that
morning in the coffeeroom, she asked Miller to give her
a written account of what had occurred and to ask Cica-
lese to do the same; she later asked Palma to write down
her observation of what had occurred. There was a dis-
crepancy in these statements- Miller said that Segal
handed the pamphlet to Cicalese; Cicalese, and Palma
said that Cicalese reached over and took it Regardless,
Mooney did not request statements from either Segal or
any others who were present in the coffeeroom at the
time, she considered what has occurred to be a violation
of the hospital rule on solicitation-"however it hap-
pened " (She testified that it had nothing to do with the
fact that union literature was involved) She testified that
even if Cicalese had taken the pamphlet out of the carton
(Mooney could not recollect whether Palma's statement
said that Cicalese took the pamphlet out of the carton or
from Segal's lap) it would still have represented a viola-
tion of the rule by Segal because
. . the box was identified, Susan walked into
the room with the box, she took out a pamphlet, ac-
cording to everybody's testimony, held it up . . . it
was assumed that this was literature , whether she
put it back in the box after Carol, the head nurse
. said , do not distribute this here, yes, then they
were both part of it.
Mooney then submitted the three statements to Rod-
zenko, together with her recommendation that a warning
be issued to them and they be suspended for a day This
recommendation was approved
Prior to this incident, both Segal and Cicalese had
flawless work records
As stated, supra, Cicalese was apparently not a sup-
porter of the Union and so informed Mooney after re-
ceiving her warning and suspension Segal , on the other
hand, was very active. She signed a card for the Union
at the first meeting at Conroy's house in September 1981.
In addition, she distributed about 25 cards to other of
Respondent's nurses in the ICU coffeeroom, the locker
room adjacent to ICU, and the parking lot She received
back, about 20 of these cards In addition, she distributed
union literature in the parking lot and Respondent's cof-
feeshop, and left literature in the nurses locker rooms
and bathrooms throughout the hospital. During the
Board hearing prior to the election, she sat with the
union representatives. Beginning about December 1981
she wore the union button referred to, supra, on her
outer clothing and her pocketbook when she went to
work. About January or February, Papatsos told her to
remove the buttons before leaving the nursing office to
go to ICU, Segal told her that it was part of her clothing
and she did not have to remove them. Papatsos told her
that she could not work unless she removed the buttons,
so she did so At the election, she was an observer for
the Union In January 1983, she was elected chairperson
of the Council of Nursing Practitioners of South Nassau;
the pamphlets which announced this election are the
ones that were given to her on March 18 Mooney testi-
fied that she knew that Segal was involved with the
Union "as were a lot of other people at the time "
As previously stated, the coffeeroom is adjacent to the
ICU, the door leading into the room is half glass and
faces the unit. The wall to the left of the door is half
glass and faces the hallway leading to the unit. The other
walls are solid. The room is approximately 7-foot square.
A sign on the door says- "No Admittance Staff Only"
while a sign to the right of the door states, "Doctors
Charting " The room contains a couch and a few chairs,
tables, a telephone, and a coffeepot which is owned by
the ICU nurses, the ICU nurses contribute for the coffee
The room is used, primarily, by ICU nurses on their
breaks and is often used by the oncoming nurses discuss-
ing their patients with the nurses going off duty. Nurses
often use the room to work on the patients' charts. As
smoking is not allowed on the unit, nurses often use the
room for a break to have a cigarette and/or coffee
There is a conflict in testimony as to the extent of the
solicitations in this room.
Lydia Hosking testified that collections for fellow
nurses are a fairly common occurrence in the coffee-
room, it happens with weddings, births, or nurses leaving
Respondent's employ. Between September 1982 and Sep-
tember 1983 she was solicited for contributions in the
coffeeroom for about 10 different collections. At the time
of the instant hearing, she was assisting in a collection
for Siragusa and another nurse who were leaving ICU.
Received in evidence was a notice that had been posted
on the bulletin board in the coffeeroom for about a week
to 10 days before Hosking removed it for the hearing. It
is on Respondent's "Progress Record" form and states
(Handwritten):
ATTN all shifts.
We are having a dinner for Pauline and Sara in
latter part of Sept. Details will be posted. We are
also getting them each a gift . Give $ to Miriam and
Lydia as soon as possible.
She was never asked by a supervisor to take this, or
any other collection notice down . She has seen other
similar requests for contributions on the bulletin board in
the coffeeroom . Supervisors use this room for coffee and
giving reports, but she has never seen a supervisor
remove one of these notes or ask that it be removed.
Hosking testified that for the collection for the dinner for
Pauline Feltkamp , she received contributions from six
nurses while in the coffeeroom and two while outside
the hospital ; none of these were supervisors . This room
was originally for the use of the doctors at the hospital;
SOUTH NASSAU HOSPITAL
because of the lack of use, it was changed about 1978 to
its present use.
Peterson testified that while she was employed in ICU
she saw many notices on the bulletin board for collec-
tions , she put up two and was never asked to remove
them, they remained posted for a week or two When
she was the acting head nurse in ICU she was not given
any instructions that collection notices or collections
themselves were not allowed in the coffeeroom . Markert
uses that coffeeroom on a daily basis to receive a report
on the patients in ICU and to have coffee. Collections
usually occurred about every 2 months . On one occa-
sion , they were arranging a Christmas party, but it was
not organized well Markert told Peterson that the nurses
could use her home if they brought all the food . Peter-
son posted a notice in the coffeeroom which stated that
the party would be at Markert's home and asked the
nurses to list their name and what they would bring. She
showed the notice to Markert who said nothing negative
about it
Siragusa testified that there were collections taken
more than five or six times a year on ICU; it was for
marriages , births, baby showers, and people leaving the
unit, Contributions are received in the coffeeroom, pass-
ing in the hallway , or on the way to lunch. In December
1982 and January 1983 she was in charge of a collection
to purchase a card and fruit basket for a nurse whose
father-in-law died . She collected money in the coffee-
room and at the nurses station in ICU. She has observed
notices on the bulletin board for collections, the head
nurse uses this coffeeroom . The coffeeroom has been
used for a Christmas party and for a going away party
when Siragusa left the department ; on these occasions
food was served in the room In addition most of the
ICU staff eats lunch in the coffeeroom and no supervisor
has every criticized them for it . On one occasion during
her last year of employment on ICU, a doctor met for
counseling with a patient 's family in the coffeeroom; Re-
spondent maintains a family room located between ICU
and the coronary care unit, which is generally used for
this purpose . On one occasion during this period a nurse
had a consultation with a patient's relatives in the cof-
feeroom.
Segal testified that the coffeeroom is a multipurpose
room; the employees eat and have coffeebreaks there,
they sometimes look over patient 's charts or relax read-
ing a magazine in the room, she has observed doctors
sleeping in the room. The husband of an ICU nurse used
to wait for her in the coffeeroom Segal testified that
during the year prior to March 1983, she did not observe
doctors or nurses counseling families in the coffeeroom;
they usually use the family room for that purpose. She
observed notices for collections on the bulletin board in
the coffeeroom, and during the year, prior to March
1983, she gave money for a collection and collected
money in the coffeeroom
Miller testified that the coffeeroom is used by nurses
giving and taking reports , family conferences , and as a
place where they obtained consent forms from relatives.
From December until July 1983 she observed four or
five family conferences in the coffeeroom During the
same period two consents were obtained from patients'
1193
relatives in the room . Employees sometimes have their
meals in this room , but Miller does not know of any
nurses' parties in the coffeeroom . Nurses frequently have
coffee and work on the patients' charts in this room
Miller testified that she has never seen a notice relating
to a collection posted on the bulletin board in the cof-
feeroom; "And , if I had , I would have removed it . . .
Because only things that are approved by the adm inistra-
tion are to be on the bulletin board " During some weeks
she is never in the coffeeroom ; during other weeks, she
is there on one or two occasions
Mooney testified that the coffeeroom was originally
designed as a place for the doctors at the hospital, at the
present time , it is principally for the nurses to work on
the patients ' charts, to report to each other on the pa-
tients' condition , "to get away from the primary area of
responsibility in the ICU." There are also patient confer-
ences and staff meetings in the room . She is aware that
nurses have coffee in the room and the hospital has
given "tacit approval" to this because
ICU is a high stressful area . The nurses by and
large will not leave their patients to take a break
. . the area is allowed to be used for coffee and
cigarettes because it 's the only way they can
remove themselves from the tension . . . and still be
a part of the unit
She testified that the nurses can see the patients
through the glass, in case of a problem, although you
cannot read the patients' monitors from the room. She
was not aware of any situation where collections were
made in the coffeeroom , although she is not often in this
room ; in 1982, on one occasion , she saw a notice on the
bulletin board announcing a collection.
IV. DISCUSSION AND ANALYSIS
In Wright Line, 251 NLRB 1083 (1980), the Board set
forth the rule to be applied in determining whether cer-
tain actions are in violation of Section 8(a)(1) or (3) of
the Act "First we shall require that the General Counsel
make a prima facie showing sufficient to support the in-
ference that protected conduct was a motivating factor
in the employer 's decision . Once this is established, the
burden will shift to the employer to demonstrate that the
same action would have taken place even in the absence
of the protected conduct."7
Siragusa wore a union button to work for the 4- or 5-
month period preceding the election , and she was an ob-
server for the Union at the election. In addition , she dis-
tributed union literature to fellow employees in the
locker room and parking lot. Peterson was less active;
she encouraged fellow employees to attend the union
meetings and, at the ballot count at the election, she
wore a union button and sat with known union sup-
poprters . Musolino, who was the head nurse in ICU for
less than a month, knew that they supported the Union;
her superiors must also have known . Prior to May 16,
Peterson and Siragusa had perfect work records at Re-
' This burden was approved by the Supreme Court in NLRB v Trans-
portation Management Corp, 463 U S 393 (1983)
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, and, in fact, Peterson was acting head nurse in
ICU, and was offered the head nurse's position on a per-
menant basis Even if Peterson and Siragusa did raise
their voices in questioning their assigments on the mor-
ninig of May 16,8 in no way did their actions warrant
the punishment they received, even Musolino did not
feel that the punishment fit the crime. This is especially
true since Respondent maintains a progressive discipli-
nary system providing for a number of steps of counsel-
ing prior to discipline; this system was bypassed for Pe-
terson and Siragusa Further, the event that precipitated
the warnings occurred 3 days after the election and Rod-
zenko referred to the ICU as a "hotbed" of union activi-
ty at the hospital. Finally, Rodzenko's statement to Mu-
solino that timing was an important factor in the issuance
of the warnings and if their conduct had occurred at a
different time "the warnings might not have been issued"
could only refer to the Union and the recent election,
the way Musolino understood it For all these reasons,
the General Counsel has sustained his initial burden.
Has Respondent sustained its burden that the same
action would have taken place even in the absence of the
protected conduct? Clearly not Musolino, who was di-
rectly involved in the incident, testified that she thought
nothing was going to come of it when she mentioned the
incident to Kroll during lunch that day. In addition, nei-
ther Peterson nor Siragusa (nor any other witness to the
incidents) was ever questioned about the incident, nor
were Peterson and Siragusa counseled about it, although
they previously had perfect work records These facts,
together with Rodzenko's reference to Musolino about
timing, convince me that it was not the events of May 16
that caused the warnings to be issued to Peterson and
Siragusa, rather, I find that Respondent seized upon this
incident and used it as a transparent excuse to punish Pe-
terson and Siragusa (and, indirectly, ICU) for their ac-
tivities on behalf of the Union I therefore find that by
issuing these warnings to Peterson and Siragusa, Re-
spondent violated Section 8(a)(1) and (3) of th Act 9
Next for discussion is whether Peterson's resignation
constitutes a constructive discharge by Respondent. Ad-
mittedly, after May 16 or 19 the relationship between Pe-
terson and Musohno was fairly "sterile"; there was a
minimum of interaction between the two. Although I
found Peterson to be a credible witness, where there are
conflicts, I have credited Musohno's testimony; she has
nothing to gain by this preceding (she is no longer em-
ployed by Respondent) and even a cursory examination
of the transcript illustrates the impartial nature of her tes-
timony. I therefore find that Peterson's attitude after
May 16 caused a lack of communication in the unit
which adversely affected its operation In addition, it ap-
pears that Peterson's actions were intended to demean
Musolino's authority in the unit . At that point Musolino
told Markert that "something had to change", she did
8 I find it unnecessary to make a credibility finding on this point Mu-
solino, Siragusa, and Peterson all appeared to be very credible witnesses,
and the conflicts in their testimony may have been due to the manner in
which they perceived the event
9 As regards animus , I note that at 262 NLRB 1166 (1982), the Board
found that Respondent engaged in numerous 8(a)(1) and ( 3) violations
during an organizational attempt by a different union
not recommend that Peterson be transferred and would
have accepted a transfer if it were offered to her al-
though it is not clear whether she informed Markert of
this. At this time, Markert told her that it would be ark-
ward and embarassing for Peterson to accept the transfer
and she might quit rather than accept it.
There are two elements necessary to establish a con-
structive discharge. "First, the burdens imposed upon the
employee must cause, and be intended to cause, a change
in his working conditions so difficult or unpleasant as to
force him to resign. Second, it must be shown that those
burdens were imposed because of the employee's union
activities " Crystal Princeton Refining Co., 222 NLRB
1068 at 1069 (1978), K & S Circuits, 225 NLRB 1270
(1976).
I find that the second requirement is clearly met here;
the warning she received was due to her union activities
and Markert's statement to Musolino indicated that Re-
spondent was confident that Peterson would resign
rather than accept the transfer. The first requirements is
the more difficult one to satisfy in this situation. It is
clear that Peterson preferred working in ICU and Re-
spondent was aware of it; in addition, Musolino testified
that in her opinion, ICU is considered the most prestigi-
ous unit in the hospital. However, the mere fact that she
transferred from her preferred unit and quit rather than
accepting the transfer, does not by itself, create a con-
structive discharge. Montgomery Ward & Co., 160 NLRB
1729 at 1742 (1966), stated. "An employer 'constructive-
ly' discharges an employee in violation of the Act where,
for discriminatory reasons, he makes the employee's con-
ditions of work so intolerable or undesirable that he is
thereby forced to quit his job." In Bechtel Corp., 200
NLRB 975 fn. 2 (1972), the Board stated that it has
found constructive discharge situations where an em-
ployer had made "conditions for an employee so intoler-
able that no reasonable person could be expected to
remain in employment."(Emphasis added.) See also Hit
`N Run Food Stores, 231 NLRB 660 (1977), and Panscape
Corp, 231 NLRB 693 (1972). In Crystal Princeton Refin-
ing, supra the Board stated that the new tasks had to be
either physically or emotionally impossible for the em-
ployee to perform, to convert a quit to a constructive
discharge P. E Van Pelt, Inc., 238 NLRB 794 (1978).
One reason for this rule is that parties to Board proceed-
ings must mitigate damages whenever possible and "the
Act provides an appropriate and direct remedy for in-
fringement of rights protected by Section 7." Central
Casket Co., 225 NLRB 362 at 363 (1976) In the situation
herein, rather than resigning , an unfair labor practice
could have been filed alleging that the transfer was un-
lawfully motivated
On the basis of all the evidence herein, I find that Pe-
terson was not constructively discharged. Although she
preferred working in ICU, a unit which may have more
prestige than other units in the hospital, and Respondent
was aware of this preference, it cannot be said that
working conditions in the new unit were so difficult, un-
pleasant, intolerable, or undesirable in the view of a rea-
sonable person (even with a warning hanging over her
SOUTH NASSAU HOSPITAL
head) to warrant finding that she was constructively dis-
charged
The General Counsel also alleges that Respondent
warned and directed its employees from distributing or
possessing union literature in the ICU coffeeroom and
disparately enforced its no-solicitation rule by issuing
written warning notices and 1-day suspensions to Segal
and Cicalese, in violation of Section 8(a)(1) and (3) of the
Act. In Beth Israel Hospital v. NLRB, 437 U S 483 at 507
(1978), the Court stated.
We therefore hold that the Board's general ap-
proach of requiring health-care facilities to permit
employee solicitation and distribution during non-
working time in nonworking areas, where the facili-
ty has not justified the prohibitions as necessary to
avoid disruption of health care operaions or disturb-
ance of patients, is consistent with the Act
In NLRB v. Baptist Hospital, 442 U.S. 773 (1979), the
Court cautioned the Board to consider testimony regard-
ing the hospital's operation:
It must be said, however, that the experience to
date raises serious doubts as to whether the Board's
interpretation of its present presumption adquately
takes into account the medical practices and meth-
ods of treatment incident to the delivery of patient
care service in a modern hospital.
In Intercommunity Hospital, 255 NLRB 468 at
471, the Board stated:
The Board must also take into account the statu-
tory extension of organizational rights to hospital
employees, In balancing these accounts, we have
determined that prohibitions on solicitation in imme-
diate patient care areas are presumptively valid and
that solicitation may be legitimately prohibited in
other areas if justified by the hospital as necessary
to further patient care In a general sense, every
area of a hospital serves to further patient care The
standard applicable for determining what justifica-
tion is necessary to validly ban solicitation is not
based on a general view of the purposes of a hospi-
tal but :s based on a showing that the areas in ques-
tion serve important and direct functions in the care
of patients. In other words, the standard is that so-
licitation may lawfully be prohibited where it is
shown that it would tend to directly affect patient
care by disturbing patients or disrupting health serv-
ices
As the ICU coffeeroom is not an immediate patient
care area it must be determined if Respondent has estab-
lished that the room serves important and direct func-
tions in patient care, and that union solicitation in this
room would either disrupt patient care or disrupt pa-
tients Eastern Maine Medical Center, 253 NLRB 224
(1980) The room is adjacent to a critical care unit, ICU,
with a door (the top half of which is glass) facing the
unit. Although the sign to the right of the door refers to
the room as "Doctors Charting," it has not been used for
that purpose for many years More importantly, the sign
on the door states, "No Admittance Staff Only," and, in
1195
fact, the testimony establishes that the use of this room
by others is extremely rare, being limited to a few meet-
ings yearly between doctors and patients' families
(There is another room, specifically for this purpose,
nearby ) Even more infrequent is patient's use of this
room, this was limited to one patient who used the room
to have a cigarette This lack of use by the patients may
be due to the nature of the patients on the unit and the
sign on the door. The room is used almost exclusively by
the employees (principally the nurses) on ICU for both
work-related and social activities During shift changes
the departing nurses discuss the patients with arriving
nurses, nurses also work on patient's charts while in the
room Most of the witnesses referred to the room as the
coffeeroom and that appears to be its principal draw,
nurses can have a cup of coffee, eat their meals, or
smoke a cigarette in the room, they can also socialize or
read magazines Substantial credible evidence also was
adduced that the room was used for solicitation of em-
ployees for gifts and/or parties for fellow employees
and, in fact, on occasion parties have been held and food
served in the room. In this regard, signs were posted on
the bulletin board announcing the event and informing
the employees of who was receiving the collections
Baylor University Medical Center, 247 NLRB 1323 (1980).
These collections were frequent enough so that Respond-
ent supervisors must have been aware of this activity,
Hammary Mfg. Corp., 258 NLRB 1319 (1981), in fact,
Mooney testified that on one occasion in 1982 she saw
such a notice posted on the bulletin board in the ICU
coffeeroom On the basis of the above, I find that the
ICU coffeeroom is a nonpatient care area and that Re-
spondent has not sustained its burden of establishing that
solicitation in this area would disrupt its patient care Los
Angeles New Hospital, 244 NLRB 960 (1979), affd. 640
F 2d 1017 (9th Cir. 1981) 10 I therefore find that Re-
spondent violated Section 8(a)(1) of the Act by warning
Segal and Cicalese not to distribute union literature in
the ICU coffeeroom Because the warning and 1-day sus-
pensions to Segal and Cicalese resulted from Respond-
ent's unlawful application of its no-solicitation rule, by
this action Respondent violated Section 8(a)(1) and (3) of
the Act. Republic Aviation Corp. v. NLRB, 324 U.S. 793;
Capital Records, 233 NLRB 1041 (1977), Saint Vincent's
Hospital, 265 NLRB 38 (1982)
In the alternative, I find that the warning and 1-day
suspensions given to Segal and Cicalese were due to
Segal's union activity, and therefore violated Section
8(a)(1) and (3) of the Act. As was true with Peterson and
Siragusa, these employees had perfect work records with
Respondent, that no intermediate counseling was given
them (rather than the harsh penalty of warning and sus-
pension) for a first offense raises a suspicion that some-
thing else may have inspired this action Further support-
ing this suspicion is that Segal was never questioned
about the events of March 18, 1983, and the different
version of what occurred on that day should have affect-
ed the accountability of each, if Cicalese reached for and
10 Counsel for Respondent, in its brief, attempts to distinguish Los An-
geles, supra , from the instant matter I find these differences to be insignif-
icant
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took the leaflet, Segal was not soliciting or distributing
literature; while if Segal handed the leaflet to Cicalese,
under the circumstances Cicalese would not be as culpa-
ble. These facts, together with Respondent's union
animus, especially as directed at ICU, convince me that
the warning and 1-day suspensions given to Segal and
Cicalese were in retaliation for Segal's union activity and
therefore violate Section 8(a)(1) of the Act 11 Wright
Line, supra.
CONCLUSIONS OF LAW
I The Respondent is an employer engaged in com-
merce within the meaning of Section 2(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. The Respondent violated Section 8(a)(1) and (3) of
the Act by issuing warning notices to Peterson and Sira-
gusa on May 19, 1982.
4. The Respondent violated Section 8(a)(1) and (3) of
the Act by issuing warning notices and 1-day suspensions
to Segal on March 22, 1983, and Cicalese.
5. The Respondent violated Section 8(a)(1) and (3) by
disparately enforcing its no-solicitation rule as that rule is
applied to the ICU coffeeroom.
6. The Respondent violated Section 8(a)(1) of the Act
by warning and directing its employees not to distribute
or receive union literature in the ICU coffeeroom.
7. The Respondent did not violate the Act as further
alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom , and take certain af-
firmative action designed to effectuate the policies of the
Act.
As I have found that Respondent unlawfully suspend-
ed Segal and Cicalese, each for 1-day's work, I shall
order that Respondent make them whole for any loss of
earnings suffered as a result of the discrimination, by
payment of a sum equal to that which they would other-
wise have earned on that day, absent the discrimination,
with backpay and interest computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950); and Florida
Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). In addition, I shall
recommend that the warnings in the files of Segal, Cica-
lese, Peterson, and Siragusa be removed from their files
(if it has not already been done) and any reference to
these warnings and/or the suspensions to Segal and Cica-
lese be expunged from their employment records.
11 Cicalese 's lack of union activity or support does not detract from
this finding In Rock Tenn Co, 234 NLRB 823 at 825 ( 1978), the Board
stated "where a layoff such as here is for the purpose of discouraging
union membership and activities in general and is not necessarily directed
at the activities of particular individuals , all victims of such a layoff are
entitled to the same treatment and relief without regard to the extent of
their union activities " See also Michael M Schaeffer, 246 NLRB 181
(1979)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
ORDER
The Respondent, South Nassau Communities Hospital,
Oceanside, New York, its officers, agents, successors,
and assigns, shall
I Cease and desist from
(a) Issuing warning notices to employees in order to
discourage them and their fellow employees from sup-
porting the Union
(b) Issuing suspensions to its employees as a result of
an unlawful application of its no-solicitation rule, or for
the purpose of discouraging them, and their fellow em-
ployees, from supporting the Union.
(c) Disparately enforcing its no-solicitation rule in the
ICU coffeeroom.
(d) Warning and directing its employees to refrain
from distributing or accepting union literature in the
ICU coffeeroom.
2. Take the following affirmative action to effectuate
the policies of the Act.
(a) Make Susan Segal and Rose Cicalese whole for any
loss of pay suffered as a result of the discrimination
against them in the manner set forth above in the section
entitled "The Remedy "
(b) Expunge from its files any reference to the warn-
ings given to Theresa Peterson, Alda Siragusa, Segal,
and Cicalese , and the suspensions given to Segal and Ci-
calese. Notify them in writing that this has been done
and that the evidence of this unlawful activity will not
be used as a basis for future personnel actions against
them.
(c) Post in the cafeteria , as well as the nursing and ad-
ministrative office, at its Oceanside , New York location,
copies of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employee are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director of Region 29 in writ-
ing within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER RECOMMENDED that the consolidated
complaint be dismissed insofar as it alleges violations not
specifically found herein.
13 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
13 If 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 Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "