Taylor Hospital

National Labor Relations Board - Board Decisions

Sep 28, 1984

272 N.L.R.B. 697 (N.L.R.B. 1984)

TAYLOR HOSPITAL 697
Taylor Hospital and Local 1319, Laborers' Interna
tional Union of America, AFL-CIO-CLC Case
4-CA-12264
28 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 2 February 1984 Administrative Law Judge
James J 0 Meara Jr issued the attached decision
The Respondent filed exceptions and a supporting
brief, the Charging Party filed a brief in opposition
to the Respondent s exceptions, and the General
Counsel filed cross exceptions and a brief in sup
port of cross exceptions and in opposition to the
Respondent s exceptions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings 1 and
conclusions 2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Taylor Hos
pital Ridley Park, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order -
' The Respondent has excepted to some of the Judge s credibility find
ings The Board s established policy is not to overrule an administrative
law Judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In adopting the finding of an 8(a)(3) violation in Brown s discharge
Member Hunter does not rely on the Judge s conclusion that the dis
charge was inherently destructive of important employee rights
Member Hunter emphasizes that the Respondent s conduct in disciplining
Brown because she engaged in union activities is itself evidence of union
animus
Member Zimmerman agrees with Member Hunter that the Respond
ent s conduct toward Brown is evidence of union animus However he
also agrees with the Judge s finding that Brown s discharge was inher
ently destructive of important employee rights
Member Zimmerman and Member Hunter also disavow the Judge s ob
servant:in that at the time during which Brown was ordered by her em
ployer to report for work at 6 am on the morning of July 17 she was
not engaged in protected activity Since the Respondent earlier had
given Brown the day off Member Hunter finds that the Respondent cre
ated a pretext for disciplinary action against Brown by directing her to
work that morning
DECISION ' J
STATEMENT OF THE CASE
JAMES J 0 MEARA JR Administrative Law Judge
The complaint in this case was Issued on September 28
1982 and is based on a charge filed by Local 1319 La
borers International Union of America AFL-CIO-CLC
(the Union) on July 20 1981 ' and an amendment
charge filed on July 27 1981 The complaint alleges that
Respondent Taylor Hospital the employer of one Leola
Brown terminated Brown because of her activities on
behalf of the Union in violation of Section 8(a)(1) and (3)
of the Act Respondent denies that it has violated the
Act
This case was heard in Philadelphia Pennsylvania on
January 12 and 13 1983 and on February 9 and 10
1983 The parties at the hearing were given an opportu
nity to present evidence and to argue their respective po
salons At the termination of the evidence adduced at
such hearing the parties waived oral argument and filed
briefs which have been received and considered
Based on the evidence of record including the testi
mony and demeanor of the witnesses and in consider
ation of the briefs filed by the parties I make the follow
ing
FINDINGS OF FACT
I JURISDICTION
Respondent Taylor Hospital is and has been at all
times material herein a nonprofit corporation organized
under and existing by virtue of the laws of the Common
wealth of Pennsylvania and is and for some time prior
hereto has been engaged in providing medical and hos
pital care to patients at its Chester Pike Division Ridley
Park Pennsylvania
During the past year Respondent has accrued gross
revenues valued in excess of $500 000 and purchased
goods in excess of $50 000 directly from outside the
Commonwealth of Pennsylvania
Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act and further Respondent is a health care institution
within the meaning of Section 2(14) of the Act
I further find that it will effectuate the policies of the
Act to assert jurisdiction in this case
II THE UNION
The Union is and has been at all times Material herein
a labor organization within the meaning of Section 2(5)
of the Act ,
III BACKGROUND
Respondent Taylor Hospital is a Pennsylvania non
profit corporation engaged in providing medical and hos
pital care to patients at its Chester Pike Division Ridley
Park Pennsylvania Leola Brown had been an employee
of Respondent from February 16 1966, until July 23
' All dates hereinafter stated are in 1981 unless otherwise indicated
272 NLRB No 109
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1981 when she was terminated allegedly for repeated in
subordination Brown was originally employed in the
food services department of Respondent as a dietary aid
During the course of her employment she was promoted
to Relief Supervisor and to Supervisor II During
her tenure with Respondent comprising in excess of 15
years Brown received evaluations characterizing her
employment as satisfactory or better
Brown became a member of the Union in 1973 and
participated as a member in its efforts to become the ex
clusive representative of certain of Respondent s employ
ees The unionization efforts of the Union in regard to its
employees commenced in October 1973 and proceeded
through various phases of litigation until on January 15
the Third Circuit Court of Appeals ordered Respondent
to bargain with the Union During this period Brown
actively campaigned in favor of the Union and closely
worked with Union Business Agent Bernard Jackson
Brown was a witness in a hearing regarding challenged
ballots in 1974 and at a hearing before this Board in
1979 she testified regarding her status as an employee of
Respondent
Brown has consistently been active in the Union s
drive to secure a collective bargaining agreement As a
result of her long and active union adherence the em
ployees of Respondent in attendance at a union meeting
opted to have Brown act as the employee representative
at the negotiations for a contract
On February 16 Union Business Agent Jackson sent a
letter to Respondent noting the court of appeals ruling of
January 15 and requesting bargaining negotiations to
commence immediately On April 27 Jackson wrote
James R Redeker the attorney and representative for
bargaining purposes of Respndent advising him that
Leola Brown had been designated as the employee rep
resentative at the bargaining negotiations Jackson fur
ther requested a designation of dates to commence bar
gaining, negotiations On June 12 Redeker wrote Jackson
confirming that negotiation meetings would commence
on July 16 and 17
A Brown s St
i
atus as Employee Representative
In January 1979 the manner in which the hospital pro
vided food services to its patients was changed Instead
of continuing as it had done in the past by a contract it
undertook to conduct the department as a division of the
hospital One Mark P Crowley assumed direction of the
dietary department in January 1979 As a part of the re
organization and restructuring of the department by
Crowley job titles and descriptions were changed
Among such changes was the elimination of the titles
Relief Supervisor and Supervisor II Such individ
uals were reclassified as either supervisor or dietary or
cafeteria aides In the days prior to the actual negotiating
meetings between Respondent s representatives and the
Union s representatives Brown helped Jackson in the
formulation of proposals for the contract and on April 9
attended a meeting of union adherents for the purpose of
discussing contract proposals at the forthcoming negotia
lions
On April 14 Brown met with Crowley and Respond
ent Vice President Dominic Colaizzo In essence that
meeting resultea in a discussion between the parties of
Brown s status as a supervisor or as an employee Brown
expressed the belief that she was not a statutory supervi
sor but a relief supervisor and thus eligible to participate
in union affairs During the long period of litigation
ending in the Third Circuit s order of January 15 the
issue of the status of relief supervisors was fully litigated
The result of such litigation was that employees such as
Brown were considered to be within the unit and not
statutory supervisors The onset of Crowley as director
of foods services in January resulted in a change in the
job titles of these employees It did not however sub
stantially change the duties performed by these employ
ees and as a result Brown was of the opinion that she
was entitled to attend union meetings and participate in
union campaign activities Both Calaizzo and Crowley
expressed concern that her attendance at the union meet
ings might well be construed as a violation of the Na
tional Labor Relations Act They directed Brown not to
attend such meetings and issued a written warning that
any future involvement on her part either direct or indi
rect which may violate the rights of the hospital or the
bargaining unit according to the Act could be interpreted
as insubordination and may result in further counseling
or disciplinary action As a result of this position on
the part of Respondent Brown in counsel with union at
torney Steven Richman advised Respondent that Brown
desired to remove herself from the questionable supervi
sory status described by Respondent and to be demot
ed to a bargaining unit position Upon such demotion
Brown was designated as the employee representative of
the Union s bargaining team Brown s decision to request
and accept demotion at a loss in wages and benefits in
order to participate in union affairs without a cloud
caused Crowley to be upset
B The Negotiating Meetings of July 16 and 17
On being nominated to represent the employees on the
bargaining committee in liaison with the union represent
atives and on learning that the face to face contract ne
gotiations were to commence on July 16 and 17 Brown
spoke to a Catherine Wesley on July 1 Wesley was a su
pervisor charged with setting the work schedule for
Leola Brown and others in the food services department
At the time Wesley was working on the work schedule
for Brown among other employees Brown told Wesley
that she was to be in the board room at the negotiating
sessions on July 16 and 17 and could not be scheduled
for work on those days Wesley took the work schedule
she was working on and went to the office of Crowley
The next day Brown saw the schedule again and noted
that she was scheduled to work from 11 a m to 7 30
p m on July 13 She was told by Margaret Nolan direc
tor of personnel that the meeting was definitely to be
held on July 16 and 17 after which Brown went to her
supervisor Gloria Graham inquiring about her schedule
for July 16 and 17 She was told by Graham that she
would have to speak to Crowley At the end of the day
when Brown had clocked out she went to Crowley s
office where Supervisor Graham Nannie Cottman and
Crowley were present Brown told Graham not to forget
-
TAYLOR HOSPITAL 699
that Brown was supposed to be off on July 16 and 17
Crowley indicated that he did not know whether she
could be off on those days Brown suggested to Crowley
that he speak to Nolan and find out what procedure
should be followed Later that evening Crowley called
Brown and told her that she would have July 16 and 17
off if she could come to work over the weekend which
would have been July 18 and 19 Brown told Crowley
that on that particular weekend she was engaged with a
family reunion to which Crowley had also been invited
Brown also told Crowley that she had already made her
arrangements to fly to Charlottesville for the reunion on
Friday Crowley said he would have to get back to her
on the matter On July 15 Crowley held a meeting of
employees of the food services department where he an
nounced that Brown was no longer a supervisor and that
she had taken a demotion at her request to be on the bar
gaining team He stated to the personnel that it would be
necessary for him to bring in four employees on the
weekend to fill Brown s position Crowley was ques
honed as to why it was necessary to bring in four em
ployees to replace Brown on those days when the bar
gaining team was meeting Crowley did not respond to
the question
On the following day July 16 at 10 a m Brown met
with the union negotiating team in Respondent s board
room In addition to Brown the union team comprised a
Mr Wilburn a union official and Jackson The hospital
was represented by James Redeker Director of Nursing
Nolan Administrator Scott Murray Head Nurse Judith
Horvath and Vice President of Administration Dominic
Colaizzo At the opening of the meeting Redeker stated
that there was some conflict or breakdown of commum
cation between Brown and her supervisor and that
Brown did not inform Respondent in enough time to
have her schedule off for July 16 and 17 Jackson and
Wilburn charged that Crowley had harassed Brown on
the matter of scheduling her to attend the negotiating
meetings Redeker said that that matter would be raised
later but that as long as Brown notified her superiors she
had no problem being at the negotiating sessions During
the negotiations held that day certain contract items
were reviewed and Jackson and Brown privately con
ferred as to the legitimacy or accuracy of matters stated
by Respondent s personnel One of the subject matters
raised was that Brown and the Union did not feel that
employees who were on vacation should be called into
work during that vacation period Brown stated that she
did not think it was right that one Agnes George a food
service employee was called in from vacation to fill in
for Brown in order that she could have July 16 and 17
off from work The meeting terminated about 3 45 p m
As the various teams were assembling their papers after
the adjournment of the negotiating meeting Redeker
told Brown that with regard to the matter of her being
off on July 17 the following day she did not have to
worry about coming to work on that day Redeker re
peated this statement at least two other times before the
group parted Prior to the time the union team broke
conference they had agreed to meet the following morn
ing at 9 a m to consider certain counterproposals made
by the Respondent Arrangements were also made for
Jackson to pick up Brown at her home the following
morning and drive her to the 9 a m meeting of the union
team and subsequently to the 10 a m negotiating session
C The Alleged Personnel Shortage of July 17
After the bargaining session of July 16 had concluded
at 4 15 p m Crowley spoke to Colaizzo about a person
nel shortage apparent in his department for the following
day Colaizzo and Crowley joined the bargaining team
and presented the problem to them Present at this meet
were Redeker Murray Colaizzo and Horvath Crowley
told the group that two employees had resigned the
week before and had not been replaced and that another
employee had quit on July 16 but was urged to work on
July 17 and a fourth employee had called in sick During
the period involved the census of the hospital was 95
percent and staffing had been anticipated for an 85 per
cent occupancy Murray told Colaizzo and Crowley to
review the problem and present him with potential op
tions to alleviate it
It was decidied that nonessential services would be
canceled resulting in a need to schedule one person to
permit the department to function adequately During
the negotiations on July 16 Murray was surprised to
hear that one of the positions of the Union was that em
ployees had? been required to work on their days off and
to work many consecutive days without a day off He
had discussed these matters on prior occasions with the
department heads of the hospital and assumed that such
scheduling practices were the exception not the rule
Murray was supnsed to learn during negotiations with
the Union on July 16 that such scheduling abuses were
sufficiently frequent to cause the Union to raise the issue
in negotiations In response to Murray s direction that
the matter of the personnel shortage be resolved by
Crowley and Colaizzo it was determined that three op
tons were available to solve the problem It was deter
mined that an employee could be requested to work in
stead of taking that employee s day off A second option
was to maintain the schedule of Agnes George who was
called in from her vacation to work in place of Brown
on July 16 George had been instructed to work on July
17 and was at that time prepared to do so A third
option was to require Brown to work her original shift
notwithstanding her expected presence at the July 17 ne
gotiating session The first option of obtaining an em
ployee who was scheduled for a day off was considered
and allegedly dismissed since it would have meant that
that employee would work 10 or 11 days without a day
off also the Union had raised at the negotiations on July
16 the issue of overworking part time employees Re
spondent considered the Union s discussion in this regard
as important in evaluating its options The second option
was rejected because it involved another matter which
the Union had raised during negotiations and considered
it to be an abuse of personnel Agnes George had been
called in from her vacation to work in place of Brown
on July 16 George had complained to Crowley about
this interference of her vacation and Brown had raised
the use of George to replace at the departmental meeting
of July 15 and again at the bargaining meeting of July
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
16 The remaining option available to Respondent was to
schedule Brown for her usual shift
Crowley attempted to telephone Brown at her home
on the evening of July 16 and advised her of the deci
ston to require her to work from 6 a m to 2 30 p m the
following day notwithstanding the bargaining session
scheduled at 10 a m for that day He was unable to
reach Brown by telephone and therefore prepared a
handwritten note which recited as follows
Due to critical staffing which presently exists you
are to report to work for your regular schedule
time Friday July 17 1981 at 6 a m Mr Redeker
will still want to meet with Mr Jackson and Mr
Wilburn to discuss the situation with them tomor
row at the scheduled time Your cooperation will
be much appreciated
Thanks
Mark P Crowley
This note was left by Crowley at Brown s home with
Brown s mother Brown did not see the note when she
returned that evening but observed it for the first time at
approximately 6 45 a m on July 17 Brown telephoned
the hospital and spoke to Miss Rhoda Lucas who was a
supervisor at the time She informed Lucas that she had
just received the letter informing her that she was to be
at work at 6 a m and it was then 6 45 a m She was ad
vised by Lucas that she could come in at that hour and
work at least until 10 a m when she could attend the ne
gotiating meeting Brown had planned to be picked up at
her home by Jackson and traveled with him to attend
the prenegotiating meeting with the union team and then
to be driven to the hospital for the 10 a m negotiating
meeting She had put her car in for repairs and did not
have it available Also she was advised that morning by
Jackson that the 9 a m meeting had been postponed
since Jackson had a conflict Brown contacted the me
chanic who was repairing her car and persuaded him to
deliver the car back to her at his earliest opportunity
After receiving the car about 9 40 a m she proceeded
directly to the hospital arriving approximately 9 50 or
9 55 a m Brown immediately went to the Board room
and shortly after 10 a m Wilburn and Jackson of the
union negotiating team were present and Redeker Co
laizzo Murray Wesley and Crowley appeared for the
company The meeting was informed that there was an
emergency in the kitchen and if Brown did not report
there she would be subject to suspension pending termi
nation Upon being directed to return to work Jackson
and Wilburn along with Brown called Steven Richman
an attorney for the Union They were advised by this at
torney that Brown should return to work which Brown
did During that day while Brown was working her
shift Crowley delivered a suspension letter to Brown
Subsequently on July 23 Brown received a letter term
nating her employment allegedly for repeated insubordi
nation culminating in her failure to report to work at 6
am on July 17
Discussions and Conclusions
The General Counsel contends that the discharge of
Leola Brown was discriminatory in regard to her tenure
of employment and was accomplished in order to dis
courage membership in a labor organization in violation
of Section 8(a)(1) and (3) of the Act Respondent con
tends that Leola Brown was terminated for her refusal to
report to work as ordered and her discharge comprised
discipline consistent with Respondent s policy and proce
dure
I find that the discharge of Leola Brown was an inter
ference with her exercise of rights guaranteed by Section
7 of the Act and was an act of discrimination in regard
to tenure of employment accomplished to discourage
membership in the Union and had the clear tendency to
discourage other employees from union participation
Brown was an employee of Respondent with tenure in
excess of 15 years during which she was promoted to
Relief Supervisor and to Supervisor II Her employ
ment during her tenure was evaluated by Respondent at
a level which this record discloses could be character
ized as satisfactory or better
In 1973 at the commencement of efforts of the Union
to organize Respondent s employees Brown as a
member of that Union campaigned in favor of the
Union and on more than one occasion testified on behalf
of the Union on some preliminary issues arising during
the lengthy litigation pursued in the past between the
Respondent and the Union Members of current manage
ment deny that they knew that Brown was active in
union affairs at the Company stating that many of them
were not with Respondent during the prior litigation It
is inconceivable that litigation such as was pursued here
by Respondent from 1973 to 1981 was not a matter of
sufficient notoriety within the management circles of Re
spondent that company officials even though recently
aboard would not be aware Notwithstanding this con
tention the Respondent s vice president Colaizzo and
the director of the dietary department Crowley were
clearly made aware of Brown s sympathies when she
was found to be attending union meetings and advised
not to do so by Colatzzo and Crowley
When in January 1979 Respondent reorganized its
method of providing dietary and meal service for the pa
tients and appointed Crowley as the director of that de
partment job titles and job descriptions were rewritten
The earlier litigation between the Union and Respondent
centered among other things around the inclusion of
Relief Supervisors in the bargaining unit Extensive
litigation resulted in the determination that such person
nel including Brown were includable in the unit Subse
quent to such a determination Respondent in reorganiz
mg its dietary department rewrote the job titles and de
scnptions applicable to this personnel Thus the prior
determination that such personnel are includable in the
bargaining unit is no longer resolved Brown concluded
that she remained a member of the bargaining unit not
withstanding the continuation of her duties as in the past
It is unnecessary to determine in this case whether or not
such personnel are includable in the bargaining unit
under the newly defined job titles and descriptions
TAYLOR HOSPITAL 701
Brown believing she was a member of the bargaining
unit attended union meetings of which Respondent
became aware Respondent advised her not to attend
such meetings and also advised her that in the event that
she continued to do so she would be deemed insubordi
nate and be disciplined Brown s union sympathies were
sufficiently strong that she requested to be demoted in
order that she could continue to participate in union ac
tivities This resulted in a reduction in wages and benefits
to her The request by Brown for her demotion upset
Crowley
On April 27 the Union advised Respondent that
Brown was elected by the employees within the bargain
ing unit as their representative on the bargaining commit
tee
In order that Brown attend as a member of the union
bargaining committee at the initial face to face session of
July 16 it was necessary that she be scheduled off work
on those days Brown s efforts to accomplish this sched
uling was met with resistance from her supervisors Al
though she informed her supervisor of her need to be
off it was several days and as a result of Brown s per
sistence that the schedule was set enabling Brown to
attend the union meeting 2
The bargaining session between Respondent s bargain
ing team and that of the Union on July 16 was the first
face to face 'session scheduled in the exceedingly long
period of time between the inception of the union move
ment at Respondent s facility Brown was active in her
participation on the Union s bargaining panel She was
the only member of the panel with knowledge of the pe
culiar needs of the bargaining unit s members at Re
spondent s facility Among the other things raised at that
session was the practice of Respondent to work employ
ees an excessive number of days without relief and to
call personnel in from their vacations to work During
this initial bargaining session the issue was raised of
Brown s difficulty in obtaining scheduling to permit her
attendance at the meeting Brown received assurances
from Redeker in the presence of the other members of
Respondent s bargaining team that she would be free to
attend the bargaining session contemplated for July 17
She was expressly assured of this by Redeker on more
than one occasion during the July 16 session
Subsequent ,to the July 17 bargaining session in the
early evening of that day Crowley advised Calaizzo that
a emergency condition had arisen at the hospital with
regard to staffing the dietary department The so called
emergency or crisis situation arose because of the resig
nation of an employee the high level of patient bed oc
cupancy at the hospital at that time and the need to
excuse Brown to attend the July 17 bargaining session
At this juncture Respondent contends that it had three
2 Crowley ongmally suggested that if Brown was to be off on July 16
and 17 that she work the following weekend Crowley knew that Brown
had planned a family reunion in Richmond on that weekend since he had
been invited by Brown to attend Eventually Brown was scheduled to be
off on the days in question and did attend at the bargaining session corn
mencing at 10 a m on July 16 In order to replace Brown on her shift
Crowley requested an employee Agnes George to abandon her vacation
and work Brown s shift on July 16 and 17 thus effectively replacing
Brown and fulling the gap created by Brown s attendance at the bargain
ing session
courses of action to solve the dilemma First Respondent
could request an employee to work on July 17 other
wise that employee s day off A second option was to
maintain Agnes George who had been scheduled to
work on July 17 as Brown s replacement or a third
option Respondent could require Brown to work her
shift notwithstanding her previously excused absence
Respondent contends that since the Union at the July 16
meeting through Brown had objected to the scheduling
of employees on consecutive days notwithstanding their
day off and to recalling employees from their vacation
its only viable alternative to satisfy the Union was to re
scind Brown s excused absence of July 17 and schedule
her to work her usual shift on that day As a result
Crowley advised Agenes George not to report to work
on July 17 and wrote a letter to Brown instructing her to
report to work on her usual shift on July 17 It would
appear that Respondent s selection among its options to
rescind Brown s excused absence was an unusual and
precipitous response to the union complaint of July 16
As far as Brown was concerned the crisis at the hos
pital was resolved by the substitution of George for
Brown George had worked July 16 and was prepared to
work on July 17 in Brown s stead Crowley contends
that since the Union objected to the working of employ
ees on their day off and objected to recalling employees
from vacation his only option was to rescind Brown s
excused absence Such deference on the part of Crowley
to the union proposal of July 16 and the apparent result
of it is strongly suggestive of a contrivance to thwart
Brown s attendance on July 17 Brown s participation as
a member of the Union s bargaining team provided the
Union with information and a background which it
would not have without Brown
Crowley attempted to deliver a notice to Brown that
she was to report to work for her usual shift the follow
ing morning by personally delivering it to her home the
evening of July 16 Brown was not at home and the
letter was left with Brown s mother Brown did not re
ceive the letter until the next morning at approximately
6 30 a m at which time she called the hospital to advise
that she would be unable to attend her shift because of
her scheduled appearance at the 10 a m bargaining ses
sion She further testified at the hearing that her car had
been delivered to a mechanic for work and that she had
expected to be picked up taken to a prenegotiating meet
ing of the union panel and then driven to the hospital
In efforts to comply with the short and confusing notice
to report to work Brown retrieved her car and went to
the hospital arriving there approximately at 10 a m She
went immediately to the locale where the meeting was
to be held and upon being directed to report to work did
so after conferring with union counsel Brown s failure
to report at the commencement of her shift or at a short
time after receiving the notice from Crowley was
deemed an infraction of hospital rules and Brown was
suspended Several days thereafter she was discharged
Respondent contends that the disciplinary action
which it applied to Brown was the same as it had ap
plied to prior employees deemed guilty of insubordina
tion in refusing a direct order from that employee s su
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pervisor It contends that Brown should have reported to
work on the morning of July 17 notwithstanding direct
statements from Redeker in the presence of Respond
ent s bargaining panel assuring her of her excused ab
sence for July 17 to attend the July 17 meeting Assum
mg Crowley s decision to rescind Brown s excused ab
sence was a valid selection from his three options which
I do not it is clear that the notice to Brown of this deci
sion was not received by Brown in time to enable her to
adjust her arrangements and report for work It is clear
that if the crisis that allegedly existed at the hospital at
the time in question was of such severity Crowley
would not have excused Agnes George from working on
July 17 prior to his ability to deliver the notice to
Brown
It is concluded that Brown fell out of favor with
Crowley when she expressed the strong desire to partici
pate in union affairs by taking a demotion Crowley was
admittedly upset with her for this action He was reluc
tant to schedule her off in the first instance for the July
16 and 17 meeting suggesting that she work over the
weekend instead and delaying informing her in a reason
able time that her request for excused absence was grant
ed After experiencing Brown s participation in the July
16 meeting the first face to face negotiation with the
Union that Respondent experienced the subsequent sce
nano was contrived It is clear that the actions of Crow
ley were designed to eliminate Brown from the bargain
ing team at the July 17 session This was done with the
knowledge and apparent consent of Calaizzo It further
appears and I conclude that when the notice to Brown
was ineffectively delivered and Brown did not appear for
work at 6 am on the morning of July 17 that the Re
spondent seized upon the circumstances to commence
the sequence which led to the termination of Brown
Several factors support this conclusion (I) Brown was a
known union activist in fact Brown was the most pro
ductive union activist among the employees of the bar
gaining unit (2) Brown was assured by Redeker in the
presence of the bargaining unit for Respondent that she
would be off work to attend the July 17 session and (3)
the crisis which Respondent alleges occurred on the
evening of July 16 was resolvable by maintaining the
then scheduled substitution of George for Brown The
inability of Crowley to communicate with Brown in suf
ficient time for her to attend at her scheduled shift did
not dissuade Respondent s contrived goal When Brown
did attend at Respondent s facilities and was ordered to
report to work she did so Notwithstanding all these fac
tors Brown was suspended and terminated for insubor
dination
I conclude from the foregoing factors that the sole
reason for Brown s disciplinary action culminating in
her termination was Respondent s desire to eliminate
Brown from the union bargaining team primarily becaue
she was an effective source of knowledge of the working
conditions within Respondent s facility which knowl
edge was indispensable to the Union s successful bargain
ing Even assuming Respondent s intentions to be sin
cere the evidence of this record discloses that it was im
possible for Brown to comply with the order of Re
spondent After receipt of the notice by Brown on the
morning of July 17 she conducted herself in a reasonable
manner by getting to Respondent s facility at 10 a m and
in response to Respondent s order to report to her job
did so
It is deemed insignificant that at the time during which
Brown was ordered by her employer to report for work
at 6 a m on the morning of July 17 she was not engaged
in protected activity The circumstances put into motion
by Respondent were such that to comply with its order
would deprive Brown of her right to participate on the
union bargaining panel The discharge of Brown for the
reasons alleged by Respondent in light of her prounion
activities and her membership on the bargaining commit
tee certainly are circumstances tending to discourage
membership in the Union It is difficult to sustain Re
spondent s actions in terminating a good employee with
15 years tenure because of conditions put into motion by
Respondent resulting in the creation of a dilemma for
Brown to which she responded in a reasonable manner
Existing factors compel the conclusion that Respondent s
actions against Brown were prompted by other consider
ations namely her union activity Brown was known to
be a union supporter the history of Brown s participa
ton in the company s antiunion litigation her request for
and acquiring a demotion to maintain her membership in
the bargaining unit her representation of the employees
on the union negotiating panel and her effectiveness
thereon all compel the conclusion that the reason for
Respondent s harsh treatment of this employee was her
union activities
Although I have found that the action of Respondent
here was motivated by Brown s union activities it is un
necessary to find that conduct of Respondent comprised
union animus The Supreme Court in NLRB v Great
Dane Trailers 388 U S 26 32 (1967) related
[T]here can be no doubt but that the discrimination
was capable of discouraging membership in a labor
organization within the meaning of the statute Dis
couraging membership in a labor organization in
cludes discouraging participation in concerted ac
twines
Some conduct however is so inherently destruc
tive of employee interests that it may be deemed
proscribed without need for proof of an underlying
improper motive That is some conduct carries
with it unavoidable consequences which the em
ployer not only foresaw but which he must have in
tended and thus bears its own indicia of intent
[I]f it can reasonably be concluded that the employ
er s discriminatory conduct was inherently de
structive of important employee rights no proof of
an antiunion motivation is needed and the Board
can find an unfair labor practice even if the employ
er introduces or enters into evidence that the con
duct was motivated by business considerations
For the reasons set forth above it is concluded that
Respondent violated Section 8(a)(1) and (3) of the Act
by suspending and terminating Leola Brown
TAYLOR HOSPITAL 703
CONCLUSIONS OF LAW
1 Taylor Hospital is now and at all times material
herein has been an employer engaged in commerce
within the meaning of Section 2(2) (6) (7) and (14) of
the Act
2 Local 1319 Laborers International Union of Amer
Ica AFL-CIO-CLC is a labor organization within the
meaning of Section 2(5) of the Act
3 By suspending and discharging employee Leola
Brown because of the exercise of her rights of Section 7
of the Act Respondent violated Section 8(a)(1) and (3)
of the Act
4 The aforesaid unfair labor practices have a close in
timate and adverse effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act
REMEDY
Having found that Respondent has committed viola
lions of Section 8(a)(1) and (3) of the Act it is ordered
that it be required to cease and desist therefrom and
from engaging in like or related unlawful conduct and to
take certain affirmative action designed to effectuate the
policies of the Act
Having found that the Company discriminatorily ter
initiated Leola Brown it is ordered that Respondent
offer her immediate and full reinstatement to her job or
if such job no longer exists to a substantially equivalent
position without prejudice to her seniority or other
rights and privileges previously enjoyed and to make
her whole for any loss of earnings she may have suffered
from the time of her suspension and termination to the
date of reinstatement Backpay for any loss during the
period during the unlawful supsension and termination
shall be computed with interest as prescribed in F W
Woolworth Co 90 NLRB 289 (1950) Isis Plumbing Co
138 NLRB 716 (1962) and Florida Steel Corp 231
NLRB 651 (1977)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed 3
ORDER
The Respondent Taylor Hospital Ridley Park Penn
sylvania its officers agents successors and assigns shall
I Cease and desist from
(a) Suspending or discharging any employee because
of that employee s exercise of his or her rights under
Section 7 of the Act
(b) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action deemed neces
sary to effectuate the policies of the Act
(a) Offer to Leola Brown immediate and full reinstate
ment to her former position or if her position no longer
exists to a substantially equivalent position without prej
3 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
udice to her seniority and other rights and privileges and
to make her_ whole in the manner prescribed in the sec
tion of this decision entitled Remedy
(b) Expunge from its records any reference to the sus
pension and discharge of Leola Brown and notify her in
writing that this has been done and that evidence of this
unlawful discharge will not be used as a basis for future
personnel actions against her
(c) Preserve and on 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 nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facility copies of the attached notice
marked Appendix 4 Copies of the notice on forms
provided by the Regional Director for Region 4 after
being signed by the Respondent s authorized representa
live shallbe posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con
spicuous places including all places where notices to em
ployees are customarily posted Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered defaced or covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
4 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
urinal Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
lion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT suspend or discharge or otherwise dis
criminate against any of you for supporting a union or
for engaging in any rights guaranteed by Section 7 of the
Act
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Leola Brown immediate and full rein WE WILL notify her that we have removed from our
statement to her former job or if that job no longer files any reference to her discharge and that the dis
exists to a substantially equivalent position without prej charge will not be used against her in any way
udice to her seniority or any other rights or privileges
and other benefits resulting from her discharge less any TAYLOR HOSPITAL
net interim earnings plus interest