St. Anne's Hospital

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1009 (N.L.R.B. 1979)

ST. ANNE'S HOSPITAL
St. Anne's Hospital and Madeleine M. Souza, Leslie
J. Rocha, Rose Mary Almeida, and Patricia Danis.
Cases -CA-14319. 1-CA-14320, 1-CA-14450, 1-
CA- 14938, and I -CA- 14465
September 28, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On February 27, 1979, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge, as
modified herein, and to adopt his recommended Or-
der, as modified herein.
The Administrative Law Judge found, and the rec-
ord reveals, that, for a number of years prior to
March-April 1978, employees Madeleine Souza and
Rose Mary Almeida would normally substitute for
Head Nurse Hilda Paruch, an admitted supervisor,
when Paruch was absent from work.2 As more fully
discussed in his Decision, the Administrative Law
Judge also found that between March 17, 1978, and
April 16, 1978, Respondent refused to allow either
Souza or Almeida to substitute for Paruch when she
was absent from work. The Administrative Law
I In adopting the Administrative Law Judge's recommended dismissal of
the allegation of the complaint concerning Respondent's promulgation of a
rule restricting operating room conversations, we find it unnecessary to rely
on Textile Workers Union of Amenca v. Darlington Manufacturing Co., et aL,
31{0 U.S. 263, 268 (1967), cited by the Administrative Law Judge. Rather we
are satisfied that the result is fully consistent with the teachings of the Su-
preme Court in Beth Israel Hospital v. N.LR.B., 437 U.S. 483 (1978):
N.LR.B.. v. Baptist Hospital, Inc., 99 S. Ct. 2598, 86 LC 111,351 (1979),
and similar cases that deal with the application of no-solicitation and no-
distribution rules in the hospital context.
We agree with the Administrative Law Judge's findings that Respondent
violated Sec. 8(aXI) of the Act by discharging employees Souza and Rocha
for engaging in Sec. 7 activity. In so doing, we note that Souza and Rocha
were openly active in the nurses' protected activity. We also emphasize that
Respondent itself recently had established the procedure by which nurses
who felt unqualified to participate in assigned surgery could notify their
supervisor and be relieved of their assignment. Souza and Rocha dutifully
followed this procedure. Hence, Respondent's decision to discharge Sousa
and Rocha for doing no more than following instructions and exercising
their prerogative to be relieved of their assignments in such sensitive surgery
as an aortic aneurysm and an exploratory laparotomy reveals that Respon-
dent's real motive for the discharges was an unlawful one.
2 At such times, the two employees would be referred to as acting charge
nurses.
Judge found that the reason for Respondent's refusal
of this work to Souza and Almeida was their partici-
pation in protected concerted activity during the pe-
riod from January through March 1978. We agree
with this conclusion. However, the Administrative
Law Judge also found that, notwithstanding the rea-
son for Respondent's refusal of this work, Respon-
dent had not thereby violated Section 8(a)(1) because
"the process of hiring supervisors." temporary or oth-
elwise, is not subject to the protection of the Act. For
the following reasons, we disagree with the Adminis-
trative Law Judge and find a violation in Respon-
dent's refusal to utilize Souza and Almeida as substi-
tutes for Paruch.
In support of his conclusion that Respondent had
not violated the Act, the Adminis,:ative Law Judge
relied on a portion of the Board's decision in Pacific
American Shipowners Association. et al.3 There, a
Board majority found that eight individuals who were
applying for supervisory positions through a hiring
hall were not entitled to the protection of Section
8(a)(3) of the Act. The Administrative Law Judge
noted that in dismissing the 8(a)(3) allegation there
the majority in Pacific American had stated that
"when Congress amended the Act to exclude supervi-
sors from the definition of the term 'employee,' it
thereby denied to those seeking and to those holding
supervisory jobs the protection of Section 8(a)(3)."4
However, in that portion of Pacific American on
which the Administrative Law Judge relied, the
Board majority was speaking of those applicants for
supervisor who were not already employed by the hir-
ing employer. Thus, the majority in Pacific American
made it clear that its decision was not intended to
deprive of the Act's protection present nonsupervi-
sory employees who were seeking promotion to a su-
pervisory position. Specifically, the majority stated
that:
Further, we cannot agree that our decision
herein affects adversely the rights of nonsupervi-
sory employees in the particular respect which
concerns our dissenting colleague: viz, where a
rank and file employee of a particular employer.
who applies to his employer for promotion to a
supervisory vacancy, is told that he will not re-
ceive consideration for the promotion because he
has been an active union member. A refusal to
accord an actual employee the normal consider-
ation for promotion to a higher position, albeit
that of supervisor, based on protected concerted
activity during such employment, would clearly
198 NLRB 582 (1952).
498 NLRB at 596.
245 NLRB No. 130
1009
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be a violation of the rights of nonsupervisory em-
ployees.5
Clearly, it is just such a situation that we have before
us except that here consideration and selection were
inextricably intertwined. Almeida and Souza were
employees of Respondent who were denied promo-
tions and consideration for promotion, albeit tempo-
rary, to a supervisory position because of their in-
volvement in protected concerted activity, i.e., the
attempt of the operating room nurses to effect
changes in their working conditions. Accordingly,
based on that portion of Pacific American which the
Administrative Law Judge failed to discuss, we find
that Respondent's refusal to offer the temporary su-
pervisory work to Souza and Almeida, which was
available during the relevant time period, was a viola-
tion of Section 8(a)(l) of the Act.
We also reject the Administrative Law Judge's sub-
sidiary finding that Respondent's actions were justi-
fied because Respondent was entitled to the undivid-
ed loyalty of its supervisors, temporary or full-time,
and Almeida and Souza, by virtue of their activities
on behalf of the nurses, had rendered their loyalty
subject to question. In a recent decision,6 the Board,
in adopting the decision of the Administrative Law
Judge, rejected the same argument. The Administra-
tive Law Judge in Little Lake found that until an
employee who is being considered for a supervisory
position actually becomes a supervisor, he may con-
tinue his actions as a rank-and-file employee and may
not be held to the code of a supervisor before becom-
ing one. Therefore, here, Respondent's refusal to uti-
lize employees Souza and Almeida in temporary su-
pervisory positions because of their failure to honor a
duty of loyalty that they were not bound to honor
constituted a violation of the Act.7
AMENDED REMEDY
Having found, contrary to the Administrative Law
Judge, that Respondent engaged in certain additional
unfair labor practices in violation of Section 8(a)( ) of
the Act by refusing to place employees Madeleine
Souza and Rose Mary Almeida in the position of act-
ing charge nurse in the operating room because they
engaged in protected concerted activities, we find it
necessary, to effectuate the purposes of the Act, that
Respondent be ordered to cease and desist from en-
gaging in such unlawful conduct and that it be or-
dered to make the affected employees whole for any
I Id. at 597.
6Little Lake Industries, Inc., 233 NLRB 1049 (1977).
7See also Richboro Community Mental Health Council. Inc., 242 NLRB
1267 (1979), to the same effect.
loss of pay they may have suffered as the result of
such activity. Backpay shall be computed in accord-
ance with F. W. Woolworth Company. 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, St.
Anne's Hospital, Fall River, Massachusetts, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in this recommended Order, as so modi-
fied:
1. Insert the following as paragraphs (d) and (e)
and reletter the remaining paragraph accordingly:
"(d) Refusing to place employees Madeleine Souza
and Rose Mary Almeida in the position of acting
charge nurse in the operating room ,because of their
protected concerted activities."
"(e) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act."
2. Insert the following as paragraph 2(c) and re-
letter the following paragraphs accordingly:
"(c) Make whole Madeleine Souza and Rose Mary
Almeida for any loss of earnings they may have suf-
fered by reason of Respondent's unlawful conduct in
refusing to place them in the position of acting charge
nurse because of their protected concerted activities
in the manner set forth in the Remedy section of the
Board's Decision."
3. Substitute the attached notice for that of the
Administrative Law Judge.
See, generally. Isis Plumbing d Healing Co., 138 NLRB 716 (1962). How-
ever, consistent with our recent Decision in Hickmort Foods, Inc.. 242 NLRB
1357 (1979). we shall enter a narrow cease-and-desist Order in this proceed-
ing.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prohibit employees from engag-
ing in concerted activities on the Hospital's
premises for the purposes of obtaining improve-
ments in their working conditions or other mu-
tual aid or protection, provided such activities
are not conducted in patient areas.
1010
ST. ANNE'S HOSPITAL
WF WIL. NOT directly or by implication
threaten employees with reprisals for (1) engag-
ing in concerted activities for the purpose of ob-
taining improvements in their working condi-
tions or other mutual aid or protection; or (2)
associating with employees who engage in such
activities.
WE WILL NOT discharge, suspend, transfer, or
take other reprisals against employees because
they engage in concerted activities for the pur-
pose of obtaining improvements in their working
conditions or other mutual aid or protection.
WE WILL. NOT refuse to place employees Ma-
deleine M. Souza and Rose Mary Almeida in the
position of acting head nurse because of their
protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing, and to engage in other con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection or to
refrain from any or all such activities.
WE WILL offer Madeleine M. Souza and Leslie
Rocha immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or any other rights and
privileges previously enjoyed, and WE WILL make
them whole for any loss of earnings they may
have suffered by reason of their unlawful dis-
charges, plus interest.
WE WILL make whole Rose Mary Almeida for
the loss of earnings she suffered by reason of our
unlawful conduct in suspending her from her
employment from March 17 to March 27, 1978,
and for causing her to lose 1 month's work by
reason of our unlawful refusal to remove her
name from the on-call roster during the eighth
month of her pregnancy, with interest.
WE WILL offer Rose Mary Almeida a position
on the operating room staff substantially equiv-
alent to the position she held before April 16,
1978, without prejudice to her seniority or other
rights and privileges.
WE WILL expunge from our personnel records
the warning notice given to Leslie Rocha on
March 17, 1978, and the suspension notice given
to Rose Mary Almeida on March 17, 1978.
WE WILL make Rose Mary Almeida and Ma-
deleine M. Souza whole for any loss of earnings
they may have suffered by reason of our unlaw-
ful refusal to place them in the position of acting
charge nurse because of their protected con-
certed activity, with interest.
Si. ANNE'S HOSPIIAL
DECISION
SIAFMENI ()OF IH ( CAS
Herbert Silberman. Administrative L.aw Judge: The
charges of unfair labor practices in the above cases were
filed on various days between April 5 and September 11.
1978. Based thereon orders consolidating the cases were is-
sued on May 26 and October 2. 1978. A complaint in said
cases was issued on May 26. 1978. which was superseded by
an amended complaint issued on October 2. 1978. In sub-
stance, the amended complaint alleges that in violation of
Section 8(a)( 1) between January 26 and September II.
1978, the Respondent. St. Anne's Hospital. herein some-
times referred to as the Hospital, coerced, restrained, and
interfered with its employees in the exercise of the rights
guaranteed in Section 7 of the Act by conduct set forth
therein. including the discharges of its employees Ma-
deleine M. Souza and Leslie J. Rocha and the suspension of
its employee, Rose Mary Almeida. because the! had en-
gaged in concerted activities protected by Section 7. Re-
spondent duly filed answers to the complaint and to the
amended complaint denying that it had committed the al-
leged unfair labor practices. A hearing in this proceeding
was held in Boston. Massachusetts, on November 6 9,
1978. Thereafter. pursuant to permission granted the par-
ties at the hearing, briefs were filed with the Administrative
Law Judge on behalf of the General Counsel. Respondent,
and the Charging Parties.
Upon the entire record in these cases, and from my ob-
servation of the witnesses and their demeanor, I make the
following:
FINDIN(;S oF FACT
1. JRISDICTION
St. Anne's Hospital, a Massachusetts corporation, is a
health care institution which operates a hospital in Fall
River. Massachusetts. Respondent's gross annual income
from its operations is in excess of $250,000 and annuall it
purchases and receives from suppliers located outside the
Commonwealth of Massachusetts goods and materials val-
ued at in excess of $50,000 and shipped through channels of
interstate commerce to the Hospital. Respondent admits.
and I find, that the Hospital is an employer within the
meaning of Section 2(2) and (14) and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
11, TIF A.LE(;FD UNFAIR I.ABOR PRA('ICES
These proceedings arise from the collective efforts of the
Hospital's operating room personnel to obtain an increase
in the rate of pay for "on-call" duty and a greater voice in
the development of hospital policN as it affects their em-
ployment and the Hospital's reaction to their concerted
1011
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressure. The theory of the complaint is that although the
Hospital met with the operating room employees, discussed
their grievances, and made some amelioratory changes,
hospital management resented the pressure sought to be
exercised upon it by this group of employees and retaliated
against them in ways which violated the Act.
During the time material hereto, the Hospital employed
approximately 17 full-time and regular part-time persons to
staff its operating rooms composed of registered nurses, li-
censed practical nurses, and operating room technicians.
These employees collectively will be referred to as the
nurses. In addition, the Hospital employed five nurses on a
casual or per diem basis. The per diem nurses were not
materially involved in the events with which these proceed-
ings are concerned. The operating room (sometimes herein
referred to as the OR) supervisors in order of authority are:
James Lyons, administrator; Sister Angela Francis, assist-
ant administrator in charge of nursing service; Margaret
Goslin, director of nursing service; Theresa Nientimp,
assistant director of nursing service; and Hilda Paruch, op-
erating room supervisory nurse. In addition, also represent-
ing hospital management was its director of personnel,
Robert Seeley.
What prompted the OR nurses to band together was a
rumor that reached them in the afternoon of January 25,
1978,' that delivery room nurses were being paid $3 per
hour for "on-call" duty whereas the OR nurses were being
paid only $1 per hour. The nurses' regular workweek is 40
hours and work performed in excess of 8 hours during a
workday or in excess of 40 hours during a workweek is
compensated at 1-1/2 times the employee's regular wage
rate. In addition, nurses are scheduled for "on-call" duty
which means that, although away from the Hospital, they
are available to report for duty quickly in the event a need
for their services arises. On January 26, Hilda Paruch, in
response to inquiries from the OR nurses, informed them
that what they had heard was correct and that the delivery
room nurses, in fact, were being paid $3 per hour for on-call
duty. Upon learning this, they asked Paruch to arrange a
meeting between them and the hospital administration. A
meeting was scheduled for 3 p.m. that day with Hospital
Administrator James Lyons and Personnel Director Robert
Seeley. Seeley explained to the OR nurses that because the
obstetrical department was being phased out, the Hospital
was having difficulty staffing its delivery room, and there-
fore the delivery room nurses were being paid a premium
for on-call duty. The OR nurses called the administrator's
attention to the fact that the operating room also was seri-
ously understaffed and as a result, the OR nurses were
being scheduled excessive amounts of on-call duty. The
nurses also complained that, because the Hospital did not
have a page system, when they were on call they had to be
near a telephone so that they were restricted in their activi-
ties. Lyons responded that he was not aware of these prob-
lems; had he known of them perhaps something might have
been done to relieve the situation. The meeting then was
adjourned.
' All dates refer to the calendar year 1978.
That night, the OR nurses met at the home of Madeleine
Souza. They discussed the afternoon meeting and decided
to present their views with regard to on-call policy to the
Hospital's administration. Accordingly, the following letter
was prepared, was signed by the 17 OR nurses, and copies
were delivered the next day to James Lyons, Robert Seeley,
Sister Angela, and Dr. Bounakes, chief of surgery:
A meeting was held on Thursday, January 26, 1978
with Mr. Lyons and Mr. Sealy [sic] at which time the
initial problems of the Operating Room were dis-
cussed.
Following this meeting, the undersigned further dis-
cussed these problems and have come to this conclu-
sion:
Short Term Goals
1. The OR. Department is to be declared a tem-
porary emergency non-restricted call situation.
2. The O.R. Call personnel is to receive emer-
gency non-restricted call pay.
If the short term goals are not met by 2 p.m. Thurs-
day, February 2, 1978, the undersigned will not report
to work on Friday, February 3, 1978 and thereafter
until the goals are met.
Long Term Goals
1. Five additional full time O.R. employees who
will share the responsibilities of call and begin their
work day at seven a.m.
2. Radio page system available for all call person-
nel.
Following receipt of the above letter, Personnel Director
Seeley met with the OR nurses on January 30. He informed
them that the temporary emergency policy pursuant to
which delivery room nurses were being paid $3 an hour for
on-call duty had been rescinded and that he believed it was
an administrative mistake to have created the policy in the
first place. At this meeting, OR nurses Joy Cawley, Rose
Mary Almeida, and others expressed the view that they
were being assigned an excessive amount of on-call duty,
that something should be done about it, and that they
wished to discuss and negotiate the short-term and the
long-term goals expressed in their January 26 letter. How-
ever, the meeting was adjourned without any decisions
being reached.
On January 31, there was another meeting between the
OR nurses, Seeley, and Theresa Nientimp. Seeley presented
a complicated on-call wage scale under which the nurses
would receive $1 per hour for a given number of on-call
hours, then for additional on-call hours during the same
week the rate would be increased on a sliding scale begin-
ning with $2 per hour to a maximum which would vary
with each nurse, depending upon her base pay. Cawley in-
dicated that she did not view the proposal favorably be-
cause she and others were scheduled for 85 to 90 hours of
on-call duty per week. Nientimp responded that Cawley
should not complain because under the proposed plan Caw-
ley would reach the maximum pay level. But Cawley an-
swered that regardless of income she did not wish to work
so many hours. The meeting adjourned with Seeley request-
ing the OR nurses to give consideration to his proposal.
1012
ST. ANNE'S HOSPITAL
Because it was conscious of the nurses' strike threat, the
hospital was seeking an early solution to the on-call prob-
lem.
That night, the OR nurses met among themselves and
discussed alternatives to the Hospital's plan. A counterpro-
posal was drafted and was submitted to Seeley. Seeley, to-
gether with Sister Angela, Goslin, Nientimp, and Paruch,
met with the OR nurses in the afternoon of February 1.
Seeley presented another compensation plan for on-call
duty which, after a caucus, the OR nurses accepted. The
nurses also informed the administrators that they wanted
"input into making policies affecting other aspects of call"
and expected that flexibility (the opportunity to exchange
on-call duty) would not be eliminated. Sister Angela inter-
rupted with the remark that "this was a big hospital and she
couldn't spend all of her time with us." The meeting ad-
journed after "Mrs. Goslin said that Mr. Seeley had tried to
assure [the nurses] not to worry, that [they] would have
some input into the policy formation."
Because of bad weather, the next meeting of the OR
nurses was delayed until February 23. At this meeting, Ma-
deleine Souza was elected spokesperson for the group, and
Joy Cawley was elected secretary-treasurer. The nurses dis-
cussed a rumor that the Hospital was planning to equalize
on-call duty between the circulating nurses and the scrub
nurses. A scrub nurse is trained to work within the sterile
area of the operating room and to assist the surgeon. She
prepares the instruments which are used during the opera-
tion, passes the instruments and other supplies to the sur-
geon, and sometimes more directly assists the surgeon by
doing such things as holding clamps and sponging the pa-
tient. There may be as many as three scrub nurses assigned
to a single operation involving major surgery. One is the
immediate assistant to the surgeon, the second passes the
instruments, and the third goes back and forth bringing
special supplies and instruments as they are needed. The
scrub nurse may be a registered nurse, licensed practical
nurse, or operating room technician. A circulating nurse is
a registered nurse who functions outside the sterile field of
the operation. She receives the patient at the door, reviews
the charts, attends to preoperative chores such as insuring
that the laboratory reports are present, assists the anesthesi-
ologist in preparing the patient, and escorts the patient to
the recovery room following the operation. Prior to the date
of this meeting, the hospital practice had been not to ex-
change scrub and circulating nurses. Therefore, among the
OR nurses, there were several circulating nurses who had
not for many years scrubbed for major surgery.
The next day, February 24, Madeleine Souza, in a con-
versation with Hilda Paruch, told her for a second time that
the OR nurses had retained legal counsel. Paruch re-
sponded that when Souza first had told her that the OR
nurses had retained counsel, she "had not passed on the
information . . . because . . . she was trying to protect us;
that by telling Administration that we had retained counsel
was almost like making a threat." In the morning of Febru-
ary 27, Paruch called the OR nurses, who were then at
work, into the lounge. She told them that "up until that
time she had been sympathetic with the group, but that
since we had gone for outside help she was now cutting us
off from herself."
During the afternoon of February 27, there was a meet-
ing among the OR nurses, Seeley, and Nientimp. The new
compensation policy for on-call duty was reviewed. Souza
raised for discussion some of the matters that the OR nurses
had considered at their meeting on February 23, including
the nurses' wish that flexibility should be maintained with
respect to on-call scheduling; i.e., that the nurses will be
permitted to exchange on-call duty among themselves.
There was a problem with this proposal in that the new
compensation plan provided for a sliding wage scale and
exchanges of duty might result in different wages for the
exchanged hours, which called for adjustments that Seeley
and Nientimp feared the computer was not able to handle.
At this meeting, there also was discussion about equalizing
on-call duty between the scrub nurses and the circulating
nurses. As of this date, circulating nurses normally were on
call I night per week, while scrub nurses were on call 2 or 3
nights per week; thus, equalization of on-call duty would
require scheduling circulating nurses for on-call duty as
scrub nurses. Almeida, Rocha, and Cawley, who were cir-
culating nurses, protested the equalization proposal because
they did not feel qualified without further training to func-
tion as scrub nurses. In response to a remark by Cawley,
Nientimp said that if Cawley did not feel comfortable
about assisting at an operation she should not do it. Nien-
timp explained that if a circulating nurse was called upon to
act as a scrub nurse in an emergency it was permissible
under the law. However, Rocha, and Almeida voiced the
objection that where a circulating nurse is scheduled for on-
call duty as a scrub nurse there would not be a true emer-
gency if she is called to scrub for an operation. Nientimp
cut off discussion by telling the nurses that they were split-
ting hairs. The nurses were upset and dissatisfied by the
proposed equalization of on-call duty.
The OR nurses met together on February 28. Because
they felt that the hospital's on-call policy still was unaccept-
able, the following letter was drafted and was delivered to
Hospital Administrator James Lyons the next day:
This letter is to advise you that the present On Call
Policy continues to be unacceptable to Seventeen
members of the Operating Room Staff at St. Anne's
Hospital. We would like a representative of Adminis-
tration to meet with our spokesperson and our Counsel
concerning this matter within a week from this date.
Unlike the January 26 letter, this letter is not signed; but
typed below the body is written, "Seventeen Members of
the O.R. Staff."
The OR nurses met again at Madeleine Souza's home on
March I. They were much concerned about scheduling cir-
culating nurses for scrub call. A decision was reached to
express their concern to the hospital administration and the
following letter, which was signed by 16 OR nurses (Janet
D. Kelly did not sign the letter), was prepared and deliv-
ered to Hospital Administrator James Lyons the next day:
This is to advise you that the undersigned members of
the Operating Room Staff of St. Anne's Hospital have
expressed a grave concern for the welfare of the pa-
tients regarding that aspects of the Call Policy which
would require Nurses inexperienced in the art of
1013
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scrubbing to assume the responsibilities of Scrub Per-
sonnel.
Therefore, the undersigned request that a delay in
instituting this policy be made until a reasonable train-
ing period be given these individuals.
It is the recommendation of the undersigned that a
reasonable training period would extend to a four
month period.
On March 3, there was a meeting between the OR nurses,
Goslin, and Nientimp. Goslin read to the group a docu-
ment which set forth operating room policies. This covered
various subjects, such as deportment in the operating
rooms, assignments, call time, call-in pay, and absences.
Among the policies read to the OR nurses was: "Talking is
to be kept at a minimum when in surgery." This provision
is alleged to be a violation of the Act. Among other things
that Goslin said at the meeting was that "she would see any
of [the nurses] as individuals, but she would not speak to
[the nurses] as a group."
On March 7, there was another meeting between the OR
nurses, Goslin, and Nientimp during which the subject of
assigning inexperienced circulating nurses to scrub duty
was discussed. In response to questions asked of her, Goslin
informed the OR nurses that if any nurse does not feel
qualified to accept a particular scrub assignment that she
should so inform her supervisor. Goslin also said that no
nurse would be required to act as an assistant if she felt
uncomfortable doing so.' Also, at the meeting, Patricia
Danis, an OR technician, inquired as to who would act as
assistant to the surgeon if she did not feel qualified when
she and a circulating nurse are assigned to an operation.
Goslin replied that in such instances, the circulating nurse,
who is a registered nurse, would be the assistant.
The last meeting between the OR nurses and the Hospi-
tal's administration took place on March 15. Seeley read to
the group a grievance policy and a policy regarding em-
ployee conduct. In discussing the conduct policy, Seeley
stated that some of the OR nurses had a poor attitude, that
he had received complaints about their poor attitude, and
he wanted the nurses to be aware that the Hospital could
suspend or fire employees who were uncooperative.
The foregoing, in summary, describes the setting within
which the acts that are alleged to constitute unfair labor
practices occurred. Hospital management did not relish
dealing with the OR nurses as a group. Thus, on February
1, Sister Angela told the nurses that "she couldn't spend all
her time with them;" on March 3, Goslin told the OR
nurses that "she would see any of [the nurses] as individ-
uals, but she would not speak to [the nurses] as a group;"
on another occasion, when Souza identified herself to Nien-
timp as the spokesperson for the OR nurses, Nientimp re-
sponded that she did not recognize such a position and
Souza could speak only for herself. The Hospital's distaste
for dealing with the OR nurses developed into a restrained
hostility. Perhaps the hospital resented the fact that the OR
nurses initiated the discussions with a strike threat. Reflect-
2 The foregoing is based on the testimony of Theresa Nientimp. Witnesses
for the General Counsel, including Leslie Rocha and Patricia Danis, testified
to the same effect.
ing the Hospital's hardening attitude towards the OR
nurses is the statement by Paruch that the administration
probably would consider that by retaining counsel the OR
nurses were issuing a threat and that since they had ob-
tained "outside help" she was cutting herself off from the
group. Furthermore, in the same vein, Paruch told nurse
Leslie Rocha, who is Paruch's niece, that "[s]he was strictly
management from now on." Absent other explanation,
which was not forthcoming, Seeley's statement on March
15, that the Hospital's newly adopted conduct policy was
aimed at the "poor attitude" of some individuals, was a
pointed reference to the group activity of the OR nurses.
This is confirmed by the uncontradicted testimony of Joy
Cawley who, in a discussion with Seeley about a warning
given to her because of her alleged poor attitude, was told
that "it was more in the interest of the hospital to rehabili-
tate the people who still remained in the OR rather than try
to replace everyone." This is further confirmed by the fact
that on March 17, only 2 days after the Hospital discontin-
ued discussions with the OR nurses and promulgated its
new conduct policy with the warning that the Hospital
could discipline employees who are uncooperative or have
a poor attitude, one OR nurse was given a formal warning
notice, and another OR nurse was suspended.'
The alleged unfair labor practices are set forth in 15 sub-
paragraphs to paragraph 7 of the complaint labeled (a)
through (o). The discussion below of these allegations gen-
erally will follow the order in which they are listed.
(a) Since on or about January 26, 1978, Hilda Pa-
ruch has engaged in surveillance of employees at the
Hospital
In support of this allegation the General Counsel refers
only to the testimony of nurses Joy Cawley who averred
that after January 25 "[i]n whatever room I was assigned to
on that particular day, Mrs. Paruch would come in several
times, not say anything, just stand at the door looking and
then leave. When I transported a patient to the recovery
room Mrs. Paruch would be in the recovery room when I
arrived, and she would review my charts, my nurses notes
and then when I was back in the operating room she would
stop by my room for a few moments while we were getting
ready for another operation. She never explained to me
why or counselled me on the increased frequency of her
observation of me."
Charging Parties refer to testimony of Rose Mary Almei-
da as supporting this allegation of the complaint. According
to Almeida, on March 28, after she had completed her du-
ties in connection with an operation and had given a report
to the surgical IC unit, she observed Paruch standing in the
area.
The testimony of neither witness suggests that Paruch
had been spying upon their group activities. Also, absent
any greater specificity, I find that the testimony of these
witnesses does not prove that Paruch was harassing the OR
nurses by observing them more closely than had been her
custom prior to January 25 when they began to act together
to seek improvements in the Hospital's on-call policy. Ac-
3 No evidence was adduced by Respondent that any warning or suspen-
sion notice had been given to any OR nurse prior thereto.
1014
ST. ANNE'S HOSPITAL
cordingly, I shall recommend that this allegation of the
complaint be dismissed.
(b) In or about March 1978, Hilda Paruch told em-
ployees that they could not talk about anything per-
taining to problems at work on hospital premises
There is no contention that the Hospital promulgated an
unlawful no-solicitation rule. This allegation and the evi-
dence adduced in support.thereof relate to admonishments
of OR nurses by Paruch. Thus, Joy Cawley testified that on
February 23, after work for the day had been completed,
she and nurse Helen Loos went into a supply room in order
to have a private conversation. When they had been there a
short time, Hilda Paruch came into the room and told Caw-
ley and Loos that they were not to have anymore meetings
of such nature "on hospital time." According to Cawley.
after she returned to the OR nurses lounge area, Paruch
"made a joke" of the incident. 4 Madeleine Souza testified
that in March, on a day when she was having lunch with
Helen Loos in a hospital kitchen near the operating rooms,
Paruch entered and informed them that they were not to
have any meetings or discussions on hospital property.
Souza protested that it was lunchtime, but Paruch said that
it did not make any difference.5 There was no specific denial
of Cawley's or Souza's testimony. Paruch merely answered,
"Absolutely not," to the following question put to her by
Respondent's counsel: "Mrs. Paruch, did you ever tell any
of the nurses that they couldn't talk on the hospital prop-
erty?" As both Souza and Cawley impressed me as being
truthful and reliable witnesses, I credit their testimony. The
described instances when Hilda Paruch sought to break up
private conversations between OR nurses while they were
not on duty and Paruch's instructions to them that they
were not to hold meetings on hospital premises served to
restrain and interfere with the OR nurses in the pursuit of
their concerted efforts to improve their conditions of em-
ployment. Absent justification which does not exist here,
such conduct violates Section 8(a)(I).6
(c) In or about March 1978, Hilda Paruch told Les-
lie Rocha not to associate with Madeleine Souza
Leslie Rocha testified without contradiction that on a
day in February when she was observed arriving at work in
the company of Madeleine Souza, who was the spokes-
person for the OR nurses in their dealings with the Hospi-
tal, she was approached by Hilda Paruch, her aunt, who
told her that she should not be seen arriving at work with
4 Cawley also testified that since March 3, whenever she was having a
conversation with one or more of the OR nurses, Paruch would tell her not
to have meetings like that at work. This testimony is too vague to have any
probative value.
5 Nurse Luz Quicha testified that in February or March, about lunchtime.
Hilda Paruch informed the OR nurses who were then in the lounge that they
cannot talk about their personal business in the operating room during work-
ing hours. The General Counsel does not advert to this testimony in support
of the complaint, and I do not view such instruction to be unlawful.
' The seriousness of Paruch's unlawful conduct in forbidding employees
from engaging in private conversations concerning matters of mutual em-
ployment concern when not actually engaged in hospital duties is not mini-
mized because it happened only twice since "any expressions of company
attitudes, even to small groups of individuals, were likely to be rapidly dis-
seminated around a plant during the struggle of organization." Bausch &
Lomb Optical Company v. N LR B.. 217 F.2d 575. 576 (2d Cir 1954)
Madeleine. The implication of this warning was that Rocha
might be subject to reprisals by openly associating with the
leader of the employees who were concertedly engaged in
promoting improvements in their conditions of employment
and which therefore constitutes an unlawful intrusion upon
employees' statutory rights in violation of Section 8(a)( 1).
(d) In or about February 1978, Hilda Paruch
changed operating room personnel assignments for the
purpose of preventing protected. concerted activities
In his brief the General Counsel does not discuss this
subject. At the hearing, the General Counsel asserted that
"people from the operating room were changed from circu-
lation to scrub and, also, that per diems began to be hired
and per diems got put on the operating room while the
regular people were not working." I find no evidence to
support this contention. The Charging Parties, however. as-
sert that testimony of Joy Cawley proves the allegation.
Cawley testified that on one occasion, when Luz Quicho
was helping her wrap instruments, Paruch assigned Quicho
another task, although Quicho protested that she was busy
helping Cawley. On another occasion, according to Cawley,
when she was helping nurse Jo Ann Rybka. Paruch came
into the room and instructed Cawley to find something else
to do. The import of this testimony is uncertain. Without
additional evidence describing more fully the circumstances
that prompted Paruch's actions, I find that Cawley's testi-
mony does not establish by a preponderance of the evi-
dence that Paruch's instructions were prompted by a desire
to prevent the nurses from engaging in concerted activities
in furtherance of their mutual employment concerns. I shall
recommend that this allegation of the complaint be dis-
missed.
(e) On or about April 3, 1978, Hilda Paruch threat-
ened an employee with extension of her probationary
period and/or dismissal unless her attitude improved
The employee referred to is Patricia Danis, also known as
Patricia DeCosta. Danis, who previously had worked at the
Hospital, was reemployed in January 1978 as an OR techni-
cian. After the OR nurses began meeting with the hospital
administration at the end of January or in early February,
Paruch warned Danis that, as a new employee, she should
"stay low-key." On another occasion in late March or early
April, when Danis was having a discussion with Paruch
about the denial of her request for a leave of absence. Pa-
ruch again warned Danis "to stay low-key" and adverted to
the fact that Danis had been "vocal at a lot of the meetings
in front of Administration." Lastly, Danis testified that on
April 3, Paruch spoke with her about an evaluation report
that Paruch was preparing for Danis and in that connection
told Danis that she (Paruch) could approve completion of
Danis' probationary period, extend Danis' probationary pe-
riod, or recommend Danis' dismissal. Paruch pointed out to
Danis that a section of the report requires an evaluation of
attitude and that "she had spoken to [DanisI about this, and
she told [Danis] that this is a group effort up in the operat-
ing room. We were a team and that we could not walk
around not talking to every member of the team. that we
7National Hotel Companm Operating the Jung Hoel, 169 NlRB 236, 238
1968)
101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not stick to groups." Danis testified that she under-
stood that Paruch was complaining that Danis in her free
time avoided associating with the per diem nurses who were
not cooperating with the other OR nurses in their dealings
with the Hospital. Although I question that the April 3
conversation constitutes proof of an unlawful threat, I find
that the two earlier warnings by Paruch to Danis that Danis
should stay "low-key" were subtle threats that, as a proba-
tionary employee, Danis was subject to dismissal or other
reprisals if she should become active in the OR nurses' con-
certed effort to improve their conditions of employment.
Such a threat, even though unspecific, veiled, and subtle, is
an unlawful intrusion upon employees' right to engage in
activities protected by Section 7 and constitutes a violation
of Section 8(a)(1).8
(g) On or about March 10, 1978, Hilda Paruch insti-
tuted a new rule banning talking in the operating room
No evidence specifically supporting this allegation was
adduced. However, on March 3, the Hospital promulgated
a rule stating that "Talking is to be kept at a minimum
when in surgery." The ostensible purpose of this rule is to
promote efficiency. Even if the stimulus for the rule was the
nurses' concerted activities, the Hospital was not unreason-
able in anticipating that talking among the nurses might
increase to the detriment of the surgery. The evidence does
not support an inference that the rule was adopted to pro-
mote an unlawful purpose; i.e., to stifle the nurses' con-
certed activities.' Furthermore, "certain business decisions
will, to some degree, interfere with concerted activities by
employees, but it is only when the interference with Section
7 rights outweighs the business justification for the employ-
er's action that Section 8(a)(1) is violated .... Whatever
may be the limits of Section 8(a)(1), some employer deci-
sions are so peculiarly matters of management prerogative
that they would never constitute violations of Section
8(a)(1)."' ° A rule, such as the one involved here, applied to
an operating room when surgery is in progess would be a
decision "so peculiarly [a matter] of management preroga-
tive that [it] would never constitute [a violation] of Section
8(a)(1)." Accordingly, I shall recommend dismissal of this
allegation of the complaint.
(h) Respondent, during the week of March II
through March 18, 1978, failed to place Madeleine M.
Souza in the position of acting charge nurse in the op-
erating room because of her protected, concerted ac-
tivities
(i) Respondent, during the week of March II
through March 18, 1978, failed to place Rose Mary
Almeida in the position of acting charge nurse in the
operating room because of her protected, concerted ac-
tivities.
The differences in this and other instances between the evidence which I
find establish unfair labor practices and the specific allegations of the com-
plaint do not prejudice Respondent, because at the hearing, Respondent had
full opportunity to contradict or explain such evidence.
' See Colonial Lincoln Mercury Sales, Inc., 197 NLRB 54, 57 (1972), enfd.
485 F.2d 455 (5th Cir. 1973).
Jo Textile Workers Union of America v. Darlington Manufacturing Co., et
al., 380 U.S. 263, 268 (1965).
(j) Respondent, from on or about March 17 until
about April 16, 1978, failed to place Rose Mary Almei-
da in the position of acting charge nurse in the operat-
ing room on Saturdays because of her protected, con-
certed activities
It is conceded by all parties that Hilda Paruch holds a
supervisory position within the meaning of the Act. For
several years prior to March 1978, Madeleine Souza or
Rose Mary Almeida normally substituted for Paruch when-
ever the latter was absent from work, which included Satur-
days and periods when Paruch was on leave for vacations,
illnesses, or other reasons. The term "charge nurse" is used
at the hospital to describe the position held by Paruch's
substitute. The charge nurse is paid a premium of 25 cents
per hour. With regard to her duties as charge nurse, Souza
testified:
Q. When you acted as a charge nurse or acting head
nurse, were you fulfilling all of the functions of Mrs.
Paruch or only a certain portion of them?
A. No. I was fulfilling all the functions.
Q. Did you have the right to impose discipline?
A. I never really thought about it. I don't think it
occurred. No.
Q. Would you have felt you had the right to disci-
pline someone if an infraction occurred while you were
acting head nurse?
A. When you mention descipline, -as far as I
know, Mrs. Paruch had never imposed discipline. Not
without going to someone higher than herself.
Q. Did you feel you had the right to call people in
from outside the hospital if you needed more help?
A. Oh, yes. I did.
Q. And you did on occasion?
A. I'd call for extra help. Yes, I did."
As alleged in the complaint, during Paruch's absence
from March 11-18 and on the Saturdays between March 17
and April 16,2 contrary to prior practice, neither Souza nor
Almeida was assigned as charge nurse. The only explana-
tion offered by Respondent for this deviation from its well
established practice is the following testimony by Nien-
timp:
A. I no longer found interest in Rose Mary Almeida
in taking charge, which I must say the monetary part
of that is $2 a day.
"The testimony of Rose Mary Almeida is not to the contrary. Almeida's
normal duties were somewhat different than those of the other OR nurses.
She did not get specific assignments but "would float." She reported for work
one-half hour before Paruch, checked the operating room schedules, made
changes in the schedules as required by absences or for other reasons, in-
structed the OR nurses, and gave assistance as needed. In addition, Almeida
helped Paruch prepare the weekly schedules. These functions were per-
formed by Almeida on the days when Paruch also was on duty. Almeida did
not describe what her authority was on the days that she acted as charge
nurse in Paruch's absence other than that she testified:
I also made out assignments. Say that Ms. Paruch which was true when
she was on vacation in August, most of the time she took a vacation in
August, I would make out the assignments for the next day for the
whole week because I was completely in charge then. [Emphasis sup-
plied.]
2 Almeida normally substituted for Paruch on Saturdays. On Apnl 16,
Almeida began maternity leave and remained away from work until Septem-
ber II11.
1016
ST. ANNE'S I
Q. What do you mean you didn't find interest? Did
you speak to Rose Mary Almeida about it?
A. I had been speaking with all of the OR for a
couple of months.
Q. Did you ask if Rose Mary Almeida wanted to
take charge for that period of time?
A. No, I didn't.
Q. It is true though that for a number of years that
Rose Mary Almeida and Madeleine Souza had taken
charge in Mrs. Paruch's absence?
A. That is correct.
Against this lame excuse is the following uncontradicted
testimony of Almeida:
[A]bout three weeks before [she went on leave, Paruch]
had asked me if I would still be willing to take charge
in the absence in her LOA. And I said of course, I
would, Hilda, I would take charge. Then the week of
her mother's death, the beginning of that week, she
again asked me would you mind taking charge, and
again I said to her, of course not, Hilda. There'd be no
problem in taking charge. She went down to a meeting
in nursing service and she came back and she asked to
speak to me .. [S]he said that she had some bad
news, that I could not take charge; they did not want
me to. ... because of my involvement.
Because the Hospital offered no plausible reason for
changing its practice of appointing Souza or Almeida as
charge nurse to substitute for Paruch, in the circumstances,
I draw the inference which Charging Parties urge upon me,
i.e., that "the hospital no longer consider[ed] them suitable
to fill the job of charge nurse . . . for participating in pro-
tected, concerted activities." However, this conclusion does
not necessarily mean that there has been a violation of the
Act.
Supervisors are expressly excluded from the protection of
the Act.' The object was to insure undivided loyalty of
supervisors to their employers.'4 In enacting Section 2(3)
and (II), Congress' preeminent purpose "was to give the
employer a free hand to discharge foremen as a means of
insuring their individed loyalty, in spite of any union obli-
gations."' Thus, it is not unlawful to discharge a supervisor
for engaging in union or other activities described in Sec-
tion 7.?6
The issue here is somewhat out of the ordinary and pres-
ents two questions. First, may an employer exact the same
undivided loyalty from persons who are appointed to act in
the place of supervisors during the temporary absences of
the supervisors as it may from its regularly appointed su-
pervisors? The argument that an employee who only occa-
sionally or intermittently substitutes for a supervisor is not
A" Sec. 2(3) of the Act: N.LR.B. v. Bell Aerospace Company Div. of Tex-
tron, Inc., 416 U.S. 267 (1974).
"S. Rept 80-105, 80th Cong. Ist sess. 5 (1947): GAF Corporation v.
N.LR.B., 524 F.2d 492 (5th Cir. 1975).
"1 Carpenters District Council of Milwaukee County and Vicinity [Del Mar
Cabinet Company] v. N.LR.B, 274 F.2d 564, 566 (D.C. Cir. 1959).
16 N.LR.B. v. Big Three Welding Equipment Companv, 359 F.2d 77 (5th
Cir. 1966); Oil City Brass Works v. N.LR.B., 357 F.2d 466 (5th Cir. 1966):
Hock Drugs, Inc., 191 NLRB 189 (1971); Royal Fork of Washington, Inc.
179 NLRB 185 (1969).
1017
deemed to be a supervisor for purposes of inclusion in or
exclusion from an appropriate collectisve-bargaining unit
misses the point. The sense of the Act, as I understand it. is
that an employer has the right to know that his supervisors
are not making common cause with, or joining the rank-
and-file employees in, activities which he might consider
antithetical to his best interests and that he can insist upon
their loyalty to him. This right to not limited to any specific
category of superviors, but extends to all supervisors
whether they rank high or low in management's hierarch3
or whether they are employed full-time or part-time. There
is no logical reason why this statutory right does not also
extend to persons who act as supervisors temporarily.' ? The
second question is whether an employer has the right, when
hiring or appointing supervisors, to discriminate against
persons because as rank-and-file employees theN had en-
gaged in activities which fall within the protection of Sec-
tion 7. Pacific American Shipowners Association, el al., 98
NLRB 582, 596-597 (1952), points to an affirmative an-
swer. In that particular case, although the employer re-
cruited its personnel through a hiring hall whose operations
were unlawful, the Board nevertheless held that persons
who applied for and were denied employment as supervi-
sors through the hiring hall were not entitled to the protec-
tion of the Act. In reaching its decision, the Board stated:
We are of the opinion that, when Congress amended
the Act to exclude supervisors from the definition of
the term "employee," it thereby denied to those seek-
ing and to those holding supervisory jobs the protec-
tion of Section 8(aX3). To hold that the protection of
this section extends to the former but not to the latter
would be to undo at the very threshold of the relation-
ship the exempt status accorded to supervisors by Con-
gress. For it would result in the congressional regula-
tion of the very act of recruitment of such supervisory
personnel. [Footnote omitted.] ls
Thus, Pacific American stands for the proposition that the
process of hiring supervisors is not subject to the protection
of the Act. I believe that the appointment of temporary
supervisors is similarly outside the protection of the Act
because an employer is as much entitled to exact loyalty
from a temporary supervisor as he is from a part-time or
full-time supervisor. Accordingly, I find that the evidence
adduced in support of paragraphs (h). (i), and ) does not
establish any violations of the Act.
(k) Respondent did, on or about March 27, 1978,
discharge Madeleine M. Souza because she engaged in
protected, concerted activities
Madeleine Souza, a registered nurse, worked for the Hos-
pital for approximately 16 years from May 16. 1962. until
7 I believe a fair interpretation of Sec. 2(3) would be that such persons are
not employees while they are temporarily serving as supervisors.
' More recently, it has been observed that "research fails to reveal that
Pacific American Ship Owners, supra, has been modified and, indeed, recent
Board precedent appears premised on the general conception that applicants
under a hinng hall who seek supervisory positions are not entitled to the
protection of Section 8(a)3)." Local L:niun .Vo 725 ofthe Untted .4 vs-ilalltn
of Journev men and Apprentices of the Plumbing and Pipefirr nmg IndusiO of the
United Sates and Canada. AFL CIO (Powers Regulator (ompaniv, 225
NLRB 138. 145 (1976). affd. 572 F2d 550 (5th Cir 1978)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was discharged on March 27, 1978. She was a supervi-
sor employee. Her evaluation report as of September 3,
1977, shows that on a scale of I to 5 (5 being the highest
rating), Souza was rated 5 for job knowledge, job responsi-
bility, quality of work performance, quantity of work per-
formance, initiative and interests, cooperation with others,
attitude toward hospital and department, and rate of pro-
gress vs. education and training; 4 for performance under
stress; and 3 for supervisory skill, teaching skill, and plan-
ning and organization skills. Her supervisors' comments
were: "Will do whatever she can to meet the needs of the
O.R. Very reliable and competent. Participated in revising
the O.R. policies, procedures and surgical sheet." At the
hearing, Personnel Director Seeley admitted that Souza was
an "above-average" employee. Also, reflecting the Hospi-
tal's confidence in, and reliance on, Souza is the fact that
during the 2 years preceding her discharge, customarily she
was called on to act as head nurse during Hilda Paruch's
absences. However, Madeleine Souza was the elected
spokesperson for the OR nurses in their dealings with the
Hospital concerning improvements in the on-call policy.
The event which led to Souza's termination occurred on
Friday, March 24. Souza was a circulating nurse. During
the year preceding her termination, she was assigned to the
recovery room and spent more than 90 percent of her work-
ing time there. Souza testified without contradiction that
her experience as a scrub nurse was limited, that she had
scrubbed for minor surgery in the past, but had scrubbed
very little for major surgery, and that she had not acted as
a scrub nurse at all during the 2 years preceding her dis-
charge. Also, in a conversation with Paruch and Nientimp
on March 6 or 7 about the on-call schedules, Souza in-
formed them that she required 4 months training before she
would feel qualified to act as a scrub nurse, although she
did not object to scrubbing for minor surgery during day-
time hours when other help was available.
On March 24, Souza worked a normal shift in the recov-
ery room from 7:30 a.m. to 3 p.m. and was scheduled to
continue working immediately afterward on an over-time
basis. About 1 p.m., Souza was informed that she would be
assigned as the circulating nurse on an exploratory laparot-
omy, which is serious major surgery, scheduled for 3 p.m. to
be done by Dr. Reimer and for another operation sched-
uled to be done by Dr. Rigero at 4 p.m. The 3 o'clock
operation was delayed. About 3:20 p.m., Paruch informed
Souza that Souza and Jeanniene Labreche would be the
scrub nurses for Dr. Reimer's operation and that Paruch
would act as the circulating nurse. Souza was distressed by
this assignment because she had never acted as a scrub
nurse for surgery of such nature.
Both Souza and Labreche began to prepare for the op-
eration. Labreche showed Souza the special instruments
that would be required.'9 Because the schedule did not indi-
cate that another physician would assist Dr. Reimer, Souza
assumed that Labreche would act as the assistant to the
surgeon and that she would act as the first scrub. About
3:45 p.m., Paruch, together with the patient who was being
19 Hilda Paruch testified that a scrub nurse is a technical job that requires
special knowledge of the instruments which will be used in particular opera-
tions.
wheeled in a bed, came into the operating room. When
Souza saw Paruch, she said, "I am sorry. Hilda. I can't do
it." Paruch told Souza that she then should act as the circu-
lating nurse. Souza. who was much disturbed at finding
herself in a situation where she had to be relieved of her
assignment, left the operating room because she had begun
to cry and went to the restroom to wash her face. When she
had composed herself, she returned to the operating room.
She was gone between 5 and 10 minutes. 0 The operation
had not yet begun when she returned, although the patient
had been moved from the bed into the operating room ta-
ble. In the meantime, additional personnel had arrived in
the operating room: Dr. Pedreira to assist the surgeon and
two additional scrub nurses, Caroline Vale and Marilyn Le-
fervre. Souza acted as the circulating nurse. Paruch left the
operating room upon Souza's return. The operation was
completed about 5:30 p.m. According to Dr. Robert Rei-
mer, the operation went well, but, because he sensed ten-
sion in the operating room, he decided to wait for the ar-
rival of Dr. Pedreira before beginning the operation,
although he had intended to start without him.
Souza left the hospital about 6 p.m. on March 24. She
returned to work on March 27. About 9:30 a.m. she was
called to the personnel office where she was informed that
she was discharged and was given a letter dated that day
and signed by Robert E. Seeley, personnel director. It
reads:
This is to advise you that as of this date your ser-
vices with St. Anne's Hospital have been terminated.
On Friday, March 24, 1978, while acting as scrub
nurse on an emergency assignment and in the presence
of a patient, you walked out of the operating room
refusing to follow through with your job assignment.
Action of this nature is considered extremely serious
and detrimental to the patient's care.
Respondent's position with regard to Souza's discharge,
as expressed in its brief, is:
It is clear from all the testimony that Mrs. Souza re-
fused an assignment and walked out of the operating
room as the patient was being wheeled in. She did this
in the presence of the patient. Her walking out on the
assignment forced the hospital to re-assign people for
the operation. The operation was delayed because the
operating surgeon would not start the operation with-
out the assistant surgeon present in the room. Clearly
an operating room requires team work. Also, the hos-
pital has a right to assign personnel for the operation.
The testimony is uncontradicted that Mrs. Souza re-
fused her assignment and walked out of the operating
room while the patient was there. This amounts to a
very serious breach of professional conduct and the
hospital had every right to discharge her for this
breach.
Respondent offers an inaccurate analysis of the evidence.
Initially, Souza made preparations to act as a scrub nurse
20 Souza testified that she was out of the operating room no more than 5
minutes while Nientimp testified that Souza was away from the operating
room more than 5 minutes, and l.abreche testified that Souza was out of the
operating rooxm at least 10 minutes.
1018
ST. ANNE'S HOSPITAL
for the operation. However, when Paruch came into the
operating room, Souza stated that she was unable to scrub,
whereupon Paruch changed her assignment to circulating
nurse. No act of insubordination or refusal to perform work
was involved. No possible occasion for discipline would
have developed had Souza not become distraught at having
to ask for relief from an assignment and had Souza not left
the operating room in order to compose herself. She was
gone only 5 to 10 minutes. When she returned the operation
had not begun and she acted as circulating nurse with her
customary efficiency. Thus, first, Souza did not refuse an
assignment. Second, if her actions delayed the operation it
was for no more than a few minutes, which caused no
harm. Third, contrary to the gratuitous assertion of Re-
spondent, there is no evidence that Souza's conduct was a
serious breach of professional conduct.
The reasons given by Respondent for Souza's discharge
are unpersuasive. I do not believe that the Hospital dis-
charged a registered nurse with 16 years of unblemished,
exemplary service for her first alleged dereliction in the per-
formance of her duties-particularly as the alleged derelic-
tion was of 5 to 10 minutes duration and had no adverse
consequences. On the evidence, I find that the true reason
for terminating Souza was that the Hospital was seeking to
curb the operating room nurses in their concerted efforts
concerted efforts to obtain improvements in their conditions
of employment and that the hospital grasped the first op-
portunity that presented itself to discharge Souza-the
spokesperson for the group-hoping thereby that it would
inhibit the nurses in the pursuit of their concerted purpose.2'
In some measure my conclusion regarding the reason for
Souza's discharge is confirmed by the notice of termination
prepared by the Hospital, dated March 31, 1978, which
states, with regard to Souza's attitude, "Usually coopera-
tive, most recently bitter and agitative for past 2 months."
No evidence was adduced indicating that Souza's attitude
was either bitter or agitative during the 2 months preceding
her discharge, which suggests that these terms refer to Sou-
za's leading role in the concerted effort by the OR nurses to
secure improvements in their conditions of work.
The discharge of Souza stands as a threat to the other
nurses that they will be subject to the Hospital's reprisals if
they continue in their concerted effort to improve their con-
ditions of employment. Such overhanging threat tends to
coerce, restrain, and interfere with the right of employees to
engage in activities guaranteed by Section 7. Accordingly, I
find that by discharging Souza, the Hospital violated Sec-
tion 8(a)(1).
(f) Respondent did on or about March 17, 1978,
give Leslie J. Rocha a written warning because she
engaged in protected concerted activities
(1) Respondent did on or about March 28, 1978, dis-
charge Leslie J. Rocha because she engaged in pro-
tected, concerted activities
21 The evidence discussed above establishes that the hospital administra-
uon resented the OR nurses' concerted activities. More specifically, objection
to Souza's leadership role is reflected by the testimony of Theresa Nientimp
that "Souzal tried to identify herself as the spokesperson for the group]
during one of the meetings .... I did not recognize that. I told her that she
could speak as an individual for herself as could anyone else."
Towards the end of the day on March 17, Rocha was
called to Theresa Nientimp's office and was given the fol-
lowing warning notice:
Problem: Employee behaved in an unprofessional
and unacceptable manner relative to the needs of the
Operating Room.
Remarks: Phone call was received by Dr. Shulman
that Dr. Shea's 7:30 case was at the O.R. door. Mrs.
Rocha was sitting in the break room and was notified.
She remained seated and responded that the circulat-
ing nurse for that room had not arrived as yet. Dr.
Shulman became upset and offered to circulate for Dr.
Shea, after which Mrs. Rocha proceeded to receive the
patient while stating that she was doing so 'out of her
sense of duty.' (It is routine procedure in the O.R. for
whomever is available to receive patients as they arrive
and take them to the assigned room.)
Action taken: Employee is therefore given this writ-
ten warning that this behavior is in violation of Hospi-
tal Policy. Any further misconduct will result in severe
disciplinary action.
Nientimp did not speak with Rocha before preparing and
issuing the warning and had not sought to obtain Rocha's
version of the incident.
Nientimp's tesimony concerning the incident is that ap-
proximately 7:30 that morning, Rocha telephoned to in-
form her that because of the snow storm, some nurses had
not reported for duty, that the OR was short staffed, and
that there was no one in charge. Nientimp replied that she
would take care of the problem. When Nientimp later went
down to the operating room, she was approached by Dr.
Shulman, an anesthesiologist, who told Nientimp that there
was an incident that she should document. Dr. Shulman did
not suggest to Nientimp that Rocha or anyone else should
be disciplined. According to Nientimp, Dr. Shulman's de-
scription to her of what had occurred was that at 7:30 a.m.
he answered the telephone and was informed that Dr.
Shea's case was at the door. He then said to the nurses in
the OR lounge that Dr. Joseph Shea's case is at the door.
(Presumably several nurses were in the lounge.) Rocha, who
was in the lounge, after a few moments telephoned Nien-
timp and then went to the door remarking, "I am doing this
out of a sense of duty." Rocha then received Dr. Shea's
case. Shulman heard Dr. Shea ask who was going to circu-
late on the case, and he responded that he will circulate
even though he has to give the anesthetic. However, Rocha
acted as a circulating nurse on the case, although she was
not scheduled to do it. When the operation was completed,
Shulman heard Rocha say to Dr. Shea, "I did it out of a
sense of duty." Nientimp further testified that "What [Dr.
Shulman] brought up to me was the fact that he felt were
problems in the OR and that he had become extremely
upset by [Rocha's] action and that Dr. Shea was upset be-
fore he was going to operate."
Nientimp's explanation for having issued the warning to
Rocha is that Rocha had upset Dr. Shulman and Dr. Shea
"[bly joking around about the case being at the door and
the circulating nurse was not present."
She further testified that this was the first time she had
received a complaint from a doctor concerning an OR
nurse.
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dr. Shulman's version of the incident differs somewhat
from what Nientimp testified he had told her and is as fol-
lows:
At 7:30 a.m. I answered the phone. Dr. Shea's pa-
tient was at the door. I told Mrs. Rocha that the pa-
tient was at the door. The answer was in jest that the
circulator wasn't in. She got up to call nursing service
that there was nobody in charge. She then got the pa-
tient.
I was in the anesthesia office when I heard Dr. Shea
say that he'd circulate himself. I assumed that the jest
was continuing with Dr. Shea. This upset me. I called
to Dr. Shea that I would circulate while giving anes-
thesia although Mrs. Rocha was circulating.
Mrs. Rocha ran for something showing me that she
was still taking care of the situation as she passed me
she said, "I am doing this only because of my sense of
duty" laughingly. I began to calm down and did the
case.
However, at the end, Dr. Shea made a remark which
rekindled my being upset. He said "Thanks for the
help" while laughing. This seemed very sarcastic to
me.
I then saw Mrs. Neintimp [sic] and told her about it
and said that she should record this somewhere be-
cause things aren't going well in the O.R.
The warning notice issued to Rocha was based entirely
on what Dr. Shulman had told Nientimp. What Dr. Shul-
man told Nientimp was not that Rocha had engaged in
misconduct, but that things were not going well in the oper-
ating room and as an illustration he referred to what he
understood were jesting remarks by Rocha that she was
acting as circulating nurse for Dr. Shea's operation out of a
sense of duty. The warning notice states that "Employee
behaved in an unprofessional and unacceptable manner
relative to the needs of the operating room." This certainly
is not intended to refer to the fact that Rocha volunteered
to act as circulating nurse on a case to which she was not
assigned. Her alleged offending remark, "I am doing this
out of a sense of duty," is difficult in my view to character-
ize as unprofessional, although the remark may have been
unacceptable to Dr. Shulman, who stated that he was upset
by it. However, he was as much upset by Dr. Shea because,
according to him, "Dr. Shea made a remark which rekin-
dled my being upset." The warning notice further states
that Rocha's "behavior is in violation of hospital policy."
Nowhere has Respondent explained what Rocha did in the
morning of March 17 that was in violation of hospital pol-
icy.
Dr. Shulman did not suggest to Nientimp that Rocha
should be disciplined in any manner. Rocha did nothing
other than undertake to help out in the absence of another
nurse. It does not seem that any discipline or warning was
needed. I agree with the Charging Parties that to issue this
warning to Rocha without any investigation as to what had
occurred would indicate that the Hospital was seeking to
seize upon any complaint, "however flimsy, to make an ex-
ample of one of the active members of the operating room
group."
Leslie Rocha was abruptly terminated on March 28, after
more than 10 years of satisfactory performance on the job.2
Except for the incident that occurred on March 17 her rec-
ord at the Hospital was unblemished. Her evaluation report
as of September 1, 1977, shows that on a scale of from I to
5 (5 being the highest or best rating) Rocha was rated 4 for
job knowledge, job responsibility, quality of work perform-
ance, quantity of work performance, initiative and interest,
cooperation with others, attitude towards Hospital and de-
partment, and rate of progress vs. education and training;
and was rated 3 for performance under stress, supervisory
skill, teaching skill, and planning and organization skills.
Her supervisor's comments state: "Will do whatever she
can to meet the needs of the O.R. schedule." Rocha was
among the more active persons promoting the OR nurses'
demands upon the Hospital of which the Hospital's admin-
istration was aware because of Rocha's vocal participation
in the discussions with management and her open and ap-
parently close association with Madeleine Souza, the
spokesperson for the OR nurses.
Rocha functioned as a circulating nurse. During the 2
years preceding her discharge, she acted as scrub nurse only
three or four times and then for minor surgical cases. She
was able to recall only two occasions in her career at the
Hospital when she acted as scrub nurse for major surgery,
and those cases involved a bowel resection and a gall blad-
der operation. Rocha was one of the nurses who at the
March 7 meeting with the Hospital's administration ex-
pressed her concern about what would happen if a circulat-
ing nurse was assigned to act as scrub nurse and the nurse
did not feel qualified to scrub for the particular operation.
The nurses were told by Goslin that in such event they
should explain the situation to their immediate supervisor,
they would be given help, and there would be no reprisals.
The event that precipitated Rocha's discharge occurred
on March 28. When she arrived at the Hospital about 7
a.m., she noticed that she was assigned to act as a scrub
nurse for an aortic aneurysm operation and that the only
other assignments listed were that of the surgeon, Dr. Bead-
reau, and a certified operating room technician, Lorraine
Charves. Rocha assumed that she would be required to act
as the assistant to the surgeon or as the first scrub nurse on
the case. Rocha thereupon informed the charge nurse that
she did not feel that she was qualified to scrub or assist in
an aortic aneurysm operation. The charge nurse advised
Rocha to raise the problem with Hilda Parch when she
arrived. Rocha returned to the operating room and began
to prepare for the operation by obtaining the sterile instru-
ments, the sterile gloves, sutures, setting up the table for the
anesthetic, and getting the operating room ready to receive
the patient. When Paruch arrived about 7:25 a.m., Rocha
told Paruch that she did not feel qualified to act as the first
scrub nurse or the assistant on an aortic aneurysm opera-
tion. Paruch responded that Rocha should not worry, but
return to the operating room and scrub." Rocha repeated
22 Rocha was hired as a registered nurse on September 4. 1967.
21 Rocha's testimony as to what Goslin told the OR nurses at the March 7
meeting was substantially corroborated by the testimony of Theresa Nien-
limp.
24 Paruch may have known that another physician was going to assist the
surgeon on the operation, and therefore it would not be necessary for Rocha
to act either as the assistant or the first scrub nurse. However, when Paruch
1020
ST. ANNE'S HOSPITAL
that she did not feel qualified to be first scrub or assistant at
the operation. According to the uncontradicted testimony
of Rocha, Paruch retorted, "[I]f she told me to assist or she
told me to first scrub I would." Rocha answered that she
would scrub for the case, but wanted Paruch to know that
she did not feel qualified to be the first scrub nurse or the
assistant. The conversation had taken place in a corridor.
Paruch then went into the nurses' locker room and Rocha
followed. Paruch ordered Rocha to go to the operating
room. Rocha left the locker room, and because she was
upset, she sat down to calm herself. When Paruch left the
locker room, she observed Rocha and ordered Rocha to go
to the nursing service office. There Rocha met with Theresa
Nientimp. According to Nientimp, she was informed by
Rocha that, "In good conscience and for the welfare of the
patient, I could not accept my assignment to first scrub and
assist on an aortic aneurysm." Nientimp testified that she
responded, "You are only assuming that you would be first
scrub, or assisting." Rocha interjected, "I will backtable or
hold the retractor," which Nientimp testified she inter-
preted to mean that Rocha was volunteering to act as the
second scrub nurse on the operation. Nientimp then in-
formed Rocha, "Leslie, being as though you already have
had a warning, this is serious, it will result in at least a
suspension; but I must discuss this with Mrs. Paruch to see
what she has to say about it." Nowhere is there any expla-
nation as to why Rocha's protest that she was not qualified
to act as assistant or first scrub nurse on an aortic aneurysm
operation was an offense, much more a serious offense, par-
ticularly as Rocha stated her willingness to act as second
scrub nurse (and without question would have acted as cir-
culating nurse), when no earlier than March 7 the OR
nurses were informed that if anyone believes herself un-
qualified to discharge a particular assignment she should
advise her supervisors.
Nientimp instructed Rocha to go to the personnel office.
She then sought out Paruch who still was in her street cloth-
ing, not having had time to change into her uniform. Ac-
cording to Nientimp:
[Paruch] said that when she came in that morning, she
had not had the time to get into her green gown for the
day, when Leslie [Rocha] had approached her at her
desk and had said almost the exact words that she said
to me; "I cannot accept my assignment to first scrub or
assist on an aortic aneurysm." And, this conversation
continued between the two. Leslie continued to repeat
these words to Mrs. Paruch. Mrs. Paruch offered her
the opportunity to discuss this in private-meaning ei-
ther the nurses' lounge or the locker room. Leslie con-
tinued to make her statements, and they went into the
locker room and Mrs. Paruch said, "Then go in and do
told Rocha not to worry, Paruch did not inform Rocha of such circumstance.
One may speculate as to the reason for Paruch's seemingly peremptory and
arbitrary action and one may infer that as of March 15, the Hospital's ad-
ministration had discontinued meeting with the OR nurses and had decided
a take a hard attitude towards the OR nurses, as is reflected by the discharge
of Madeleine Souza on March 27, the day before, and that Paruch was
"throwing down the gauntlet" and was demonstrating that she intended to
exercise unquestioning discipline in her direction of the operating room staff.
the best that you can, second scrub." And, Leslie said,
"Who is going to teach me?"2
With regard to providing the necessary personnel for the
aortic aneurysm operation, according to Nientimp, as of the
time she spoke with Paruch "[t]hat had been taken care of
already. In the meantime, a doctor had arrived to assist the
surgeon on the case and there was another nurse who was
sent into the room." The time required to make these ar-
rangements must have been very brief because it occurred
between the time Paruch sent Rocha to see Nientimp and
Nientimp's discussion with Paruch. With the arrival of a
physician to assist the surgeon it was not necessary for Ro-
cha to act as the first scrub nurse. She could have been
informed that she would act as the second scrub nurse,
which would have eliminated all problems. Why this was
not done is not explained. Is it that the Hospital's adminis-
tration had decided that they wanted unquestioning,
prompt obedience from the OR nurses to all their instruc-
tions? Was it that they were seeking an ostensible cause, no
matter how flimsy, to discharge the more aggressive OR
nurses?
Nientimp and Paruch then went to Seeley's office to dis-
cuss Rocha. Because Paruch is Rocha's aunt, Paruch was
excused, and the decision with regard to Rocha was made
by Nientimp and Seeley. Nientimp and Seeley decided that
Rocha should be discharged because of "[u]nprofessional
conduct towards a supervisor in . . . refusing an assign-
ment."
Rocha was kept waiting outside Seeley's office from 7:45
a.m. until 9:45 a.m., when she was called in and handed the
following letter:
This is to advise you that as of this date your ser-
vices with St. Anne's Hospital have been terminated.
On Tuesday, March 28, 1978, when assigned as a
scrub nurse on an assignment in the Operating Room,
and in the presence of your supervisor and other
nurses, you refused to follow through with your assign-
ment.
Action of this nature is considered extremely serious
and detrimental to the patient's care and is also insub-
ordinate conduct.
The notice of termination prepared for Leslie Rocha, which
is dated March 31, 1978, states that the reason for her ter-
mination was insubordination, and with regard to attitude,
it states that Rocha was "Usually cooperative, most re-
cently bitter and agitative."
The assigned reason for Rocha's discharge is contrived.
The letter of discharge states first that: (I) Rocha refused an
assignment in the presence of her supervisor "and other
nurses;" (2) such action is "considered extremely serious
"' Elsewhere in her testimony Nientimp gave a slightly different version of
what she was told by Paruch. In that version, after Rocha had complained to
Paruch that she could not accept her assignment to act as first scrub or assist
on an aortic aneurysm, Paruch finally told Rocha to do what she could. And
Rocha's words to Paruch were, "And who is going to teach me?" That is
when Paruch said to Rocha, "Go to nursing service." In this version, Paruch
did not say that she told Rocha to act as second scrub. In view of the fact
that Nientimp testified that Rocha had stated to her that Rocha was willing
to act as second scrub, I believe that Nientimp's recollection is faulty when
she quotes Paruch as having told Rocha to act as second scrub nurse on that
operation.
1021
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and deterimental to the patient's care:" and (3) it is "insub-
ordinate." There is no support in the record for any of these
reasons. First, there is no evidence that Rocha's discussions
were in the presence of, or were overheard by, any nurse
other than her supervisors. Second, Rocha's objection was
that she was not qualified to act as assistant to the surgeon
or first scrub nurse on an aortic aneurysm operation. No
explanation is offered how such an objection is detrimental
to the patient's care. The contrary would seem to be the
fact, i.e., that it would have been detrimental to the pa-
tient's care if Rocha had acted in a capacity for which she
had not had sufficient training and for which she then was
not qualified. Finally, there is no evidence that Rocha was
insubordinate. She merely requested that she should be re-
lieved of an assignment for which she felt unqualified, but
was willing to act in any capacity for which she was quali-
fied.
Against the insubstantial reasons given by the Hospital
for Rocha's discharge are facts which point to a different
and an incriminatory reason. First, Rocha was outspoken
in connection with the OR nurses' dealings with the Hospi-
tal's administration and was viewed by them with disfavor,
as is reflected by the remark Hilda Paruch made to Rocha
on March 20: "[H]ow did I [Rochal think she [Paruch] felt
when my [Rocha's] name was bandied about in front of
management about being vocal at meetings." Furthermore,
on March 28, after Rocha had been discharged, Paruch told
Rose Mary Almeida what had happened. According to Al-
meida, she asked, "How could management fire two good
OR nurses and suspend me, and Ms. Paruch said that she
had told us to keep out mouths shut. She was very upset
and I was also concerning the dismissal of Ms. Rocha ....
She said that we should have-she told us to keep our
mouths shut and that we should have stuck to the monetary
value of our problem with the group." Second, Rocha and
Souza were discharged on successive days. In their respec-
tive notices of termination, their attitudes are similarly de-
scribed as having been "bitter and agitative" for the past 2
months or recently. No evidence was adduced as to such
characteristics on the part of either. Furthermore, in mid-
February, Hilda Paruch warned Rocha that she should not
be seen arriving at work with Madeleine Souza. The import
of this warning, in the circumstances, can only be that the
Hospital's administration resented the position that Souza
had, as spokesperson, the OR nurses in their concerted ef-
forts to improve their conditions of employment and that if
Rocha was thought to be closely associated with Souza in
these activities the Hospital's administration also would
look upon her with disfavor.
The fact that the Hospital's administration resented the
group activity of the OR nurses, that it knew that Rocha
was among the more active of the OR nurses in pressing
their concerted grievances, that her discharge was hastily
decided on despite her more than 10 years of satisfactory
service, and that her alleged offense did not appear to have
affected hospital operations adversely, or the partcular op-
eration to which she was assigned, lead to the conclusion
that Rocha was discharged, not for the reasons given by the
hospital, but because of her participation with the other OR
nurses in their concerted effort to obtain changes and im-
provements in their conditions of employment. I find that
for the same reason she was issued the warning notice on
March 17, and by these actions the Hospital has violated
Section 8(a)(1).
(m) Respondent did from on or about March 20,
1978, until March 27, 1978, suspend Rose Mary Al-
meida because she engaged in protected, concerted ac-
tivities
(n) Respondent did on or about April 16, 1978, as-
sign more onerous working conditions to Rose Mary
Almeida by requiring her to remain on on-call duty
during her seventh month of pregnancy because of her
protected, concerted activities
(o) Respondent did on or about September 11, 1978,
fail to assign Rose Mary Almeida, upon her return
from maternity leave, to her former position of em-
ployment for the reason that she engaged in protected,
concerted activities
As of the times involved herein, Rose Mary Almeida had
been employed by the Hospital for 10 years. She was very
well thought of by the Hospital and for a period of 5 years
prior to March 1979 was regularly appointed acting head
nurse during Paruch's absences. She was suspended from
work from March 17 to March 27.
On March 17, Almeida was scheduled to work at the
Hospital from 8 a.m. to 4:30 p.m. and to be an on call
thereafter. Because a storm had developed during the night,
which prevented her from drivng to work, she telephoned
the hospital and left a message that she would be absent
because of road conditions. This not only excused her from
reporting for work during her scheduled shift, but auto-
matically removed her from her scheduled on-call duty.
About II a.m., Nientimp telephoned Almeida and asked
whether Almeida was willing to accept on-call duty. Almei-
da inquired whether, if she was summoned to work, she
would be paid at a time-and-a-half rate. Nientimp said no.
Almeida did not accept on-call duty. A short while later,
Almeida telephoned Nientimp and inquired whether, if she
reported for work between noon and I p.m., Nientimp
would sign Almeida in for the entire day, thus qualifying
Almeida for time-and-a-half rates if she were called upon to
work during her later on-call period. Nientimp replied that
she had no authority to approve such arrangement. A little
later, Nientimp telephoned Almeida and informed Almeida
that she was suspended and if Almeida had any questions
she should contact Seeley. Almeida made an appointment
to meet with Seeley that afternoon. During their meeting,
Almeida asked what the reasons were for her suspension
and Seeley informed her they were: extortion, bribery, the
fact that Almeida's attitude was bad for the past few weeks,
and that Almeida was not cooperating with the Hospital.
Seeley referred to the telephone conversation between Al-
meida and Nientimp as the grounds for his accusation that
she sought to extort money from the Hospital and to bribe
Nientimp. 6
At the hearing, Respondent argued that Almeida's of-
fense was the violation of "Falsification of employment or
16 Presumably the bribery attempt was the claim that by offenng to accept
an on-call assignment when she was not required to do so, Almeida was
making Nientimp's job easier.
1022
ST. ANNE'S HOSPITAL
other hospital records," rule set forth in the hospital's em-
ployee handbook. However, the suspension notice that was
given to Almeida lists as the offense the "Refusal to accept
an on-call assignment unless hospital policy relative to time
and a half was violated." No evidence was adduced at the
hearing that Almeida's conduct in any way violated the
hospital's policy relative to time-and-a-half.2 7 Almeida re-
quested credit for time not worked on March 17 in order
that if she were called to duty after 4:30 p.m., she would be
paid at the rate of time-and one-half. Nientimp denied that
request. The request by Almeida and Nientimp's denial did
not involve any falsification of an employment or hospital
record. With respect to the reason set forth in the suspen-
sion notice, it is noted that as Almeida had called in absent
at 6 o'clock that morning she was automatically excused
from on-call for the rest of the day. She had the privilege of
not accepting any on-call duty. There was no refusal by
Almeida to accept an on-call assignment in the sense that
she was under an obligation to work and refused her assign-
ment. Almeida merely volunteered to work when she was
under no obligation to work, provided the hospital was will-
ing to pay her at a premium rate. The fact that she would
not volunteer for work unless she was given a premium rate
cannot be equated with a refusal to accept an assignment
while at work or when under an obligation to report for
work. In any event, that the ascribed reasons were not the
true reasons for Almeida's suspension is also reflected by
her uncontradicted testimony that Seeley accused her of
extortion and bribery, which is a preposterous accusation in
these circumstances. More importantly, Seeley also referred
to her bad attitude and her lack of cooperation as reasons
for her suspension. Absent other explanation, this would
seem to be a thinly veiled reference to her support of the
OR nurses. In agreement with the General Counsel, I find
that the shifting reasons given by Respondent for Almeida's
suspension are patently contrived and, in all the circum-
stances, the logical inference, and the inference which I
make, is that Almeida was suspended from March 17 until
March 27, not for any misconduct on her part, but in retali-
ation by the Hospital for her active role in support of the
OR nurses concerted effort to secure improvements in their
conditions of employment; thus, her suspension violated
Section 8(a)(I).
In March, Almeida, who was pregnant, informed Hilda
Paruch that she wished to work through her eighth month,
but did not wish to be on the on-call roster during that
month. Paruch said that she would check and subsequently
informed Almeida that, contrary to past practice, if Almei-
da wished to work during her eighth month of pregnancy
she would have to remain on the on-call roster. Subse-
quently, Almeida broached the same question with Theresa
Nientimp. Neintimp answered that, with the new women's
lib and equal rights, if Almeida wanted to work during her
eighth month, she would have to be on the on-call roster.
27 Although the Hospital's policy was to pay time-and-a-half for hours
actually worked in excess of 8 hours dunng a single day, no evidence was
adduced that there was a policy forbidding the payment of premium rates to
employees who volunteer to work hours for which they have not been sched-
uled even though they have not completed 8 hours at regular rates during
that workday.
Because Almeida felt that accepting on-call duty in addi-
tion to her 40-hour workweek would be too burdensome,
she took her maternity leave I month earlier than she had
planned.
Theresa Nientimp testified that prior to Almeida's re-
quest to be relieved of on-call duty during her eighth month
of pregnancy, it was the practice of the Hospital to grant
such requests. The other OR nurses then would take addi-
tional call duty, but they usually did not object. However,
with regard to Almeida's situation, Nientimp testified,
"Mrs. Paruch, myself, and Mrs. Goslin had a discussion
about the fact that [Almeida] was approaching her seventh
month and that in the past it had been a practice not to
take call. Realizing that the complaint was too much call
and the fact that when I had asked for volunteers to take
call I had problems. We did not feel that we could not take
her off call at that time." But as a result of the denial of
Almeida's request, she stopped working altogether a month
earlier than she otherwise would have so that the hospital
was not only denied her services for on-call duty, but also
was denied her services for her regular 40-hour workweek.
Nientimp's testimony is as follows:
Q. Didn't that leave you with not only call time, but
with full time in the operating room to cover?
A. That is true.
Q. And you were already short staffed in the operat-
ing room, isn't that true?
A. I was.
Q. You were trying to hire additional people to cov-
er that time?
A. I was.
Q. But this left you with not only no call coverage,
but with no full time day coverage as well. Isn't that
true?
A. That is true.
With no plausible explanation having been offered by
Respondent for its sudden change of policy when Almeida
requested to be relieved of on-call duty during her eighth
month of pregnancy, I find that the reason for the Hospi-
tal's action was twofold. First, it was a reprisal against Al-
meida for her activities in support of the OR nurses' de-
mands upon the Hospital and, second, it removed someone
the Hospital considered a disruptive influence. This change
of policy by the Hospital with regard to Almeida's request
would tend to impress upon employees that they are subject
to reprisals for pursuing in concert efforts to improve their
conditions of work. I find that the Hospital's refusal to
grant Almeida's request to be relieved of on-call duty dur-
ing her eighth month of pregnancy constituted restraint
upon, and interference with, the exercise of her and other
employees' rights guaranteed by Section 7 of the Act and
thereby violated Section 8(a)(1).
Rose Mary Almeida returned from maternity leave on
September I 1. Although she requested to be returned to the
operating room where she had worked for 10 years and
where she performed more responsible work than most
other OR nurses in that she had substituted for head nurse
Paruch in the latter's absences, had acted as a floater to
instruct nurses, had pitched in whenever there was a crisis.
and had assisted Paruch in preparing schedules, the request
1023
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was denied. Nientimp informed her that the OR hours were
filled, and Almeida was assigned duties as a staff nurse.
Inspection of the Hospital's records shows that during the
past 6 years, every full-time OR nurse who returned from
maternity leave was permitted to return to the operating
room. I agree with the General Counsel that the Hospital's
refusal to permit Almeida to return to the operating room
was "just a continuing effort by the Hospital to stop the
group's protected, concerted activity." Accordingly, I find
that Respondent's conduct in this regard constituted a fur-
ther violation of Section 8(a)(1).
Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Madeleine Souza on March 27, 1978, and Leslie Rocha on
March 28, 1978, I shall recommend that Respondent offer
each of them reinstatement to her former position or, if that
position is no longer available, to a substantially equivalent
position, without prejudice to her seniority or to her other
rights and privileges and to make each of them whole for
any loss of earnings that she may have suffered by reason of
her unlawful discharge by payment to her of a sum of
money equal to that which she normally would have earned
from the date of her discharge to the date Respondent of-
fers her reinstatement, less any amounts she may have
earned during such period.
Having found that Respondent unlawfully suspended
Rose Mary Almeida from her employment from March 17
27, 1978, and unlawfully prevented Rose Mary Almeida
from working at the hospital during her eighth month of
pregnancy beginning about April 16, 1978, I shall recom-
mend that Respondent make Rose Mary Almeida whole for
her loss of earnings during these periods of time by pay-
ment to her of a sum of money equal to what she normally
would have earned from March 17-27, 1978, and from
April 16, 1978, through her eighth month of pregnancy.
Backpay and interest on the amounts of money to be
paid to Souza, Rocha, and Almeida shall be computed in
the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest as prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977).2
Respondent's unlawful activities, particularly the dis-
charges of Madeleine Souza and Leslie Rocha, indicate a
See, generally, Isis Plumbing Heating Co., 138 NLRB 716 (1962).
purpose to frustrate its employees' right to engage in con-
certed activities for the purpose of mutual aid or protection.
These unfair labor practices are potentially related to other
unfair labor practices proscribed by the Act, and the danger
of their commission in the future is to be anticipated from
Respondent's conduct in the past. Accordingly, in order to
make effective the interdependent guarantees of Section 7
and to effectuate the policies of the Act, an Order requiring
Respondent to cease and desist from in any other manner
infringing upon the rights of employees quaranteed in the
Act is deemed necessary.
Upon the basis of the foregoing findings of fact, and
upon the entire record in these cases, I make the following:
CONCLUSIONS OF LAW
I. St. Anne's Hospital is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(l)
of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in these proceedings, and
puusuant to Section 10(c) of the Act, I hereby issue the
following:
ORDER 9
The Respondent, St. Anne's Hospital, Fall River, Massa-
chusetts, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Prohibiting employees from engaging in concerted
activities on the Hospital's premises for the purpose of ob-
taining improvements in their working conditions or other
mutual aid or protection, provided such activities are not
conducted in patient areas.
(b) Directly or by implication threatening employees
with reprisals: (I) for engaging in concerted activities for
the purpose of obtaining improvements in their working
conditions or other mutual aid or protection; or (2) for as-
sociating with employees who engage in such activities.
(c) Discharging, suspending, transferring, or taking other
reprisals against employees because they engage in con-
certed activities for the purpose of obtaining improvements
in their working conditions or other mutual aid or protec-
tion.
(d) In any other manner, interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the National Labor Relations Act, as
amended.
:s In the event no exceptions are filed, as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1024
ST. ANNE'S HOSPITAL
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Madeleine Souza and Leslie Rocha immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of earnings they
may have suffered by reason of their unlawful discharges in
the manner set forth in the section of this Decision entitled
"The Remedy."
(b) Make whole Rose Mary Almeida for the loss of earn-
ings she suffered by reason of Respondent's unlawful con-
duct in suspending her from employment from March 17-
27, 1978, and for causing her to lose I month's work by
reason of its refusal to remove her name from the on-call
roster during the eighth month of her pregnancy in the
manner set forth in the section of this Decision entitled
"The Remedy."
(c) Offer Rose Mary Almeida a position on the operating
room staff substantially equivalent to the position she held
before April 16, 1978, without prejudice to her seniority or
other rights and privileges.
(d) Remove from its personnel records the suspension
notice given to Rose Mary Almeida on March 17, 1978, and
the warning notice given to Leslie Rocha on March 17,
1978.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amounts of backpay due under the
terms of this recommended Order.
(f) Post, at its Hospital in Fall River, Massachusetts,
copies of the attached notice marked "Appendix."O° Copies
of said notice, on forms provided by the Regional Director
for Region 1., after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notice to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(g) Notify the Regional Director for Region 1., in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that subparagraphs (a), (d).
(g), (h). (i), and (j) of paragraph 7 of the complaint be dis-
missed.
`0 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1025