The Long Island College Hospital

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 693 (N.L.R.B. 1985)

LONG ISLAND COLLEGE HOSPITAL
The Long Island College Hospital and Evy Papillon.
Case 29-CA-10683
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 September 1984 Administrative Law
Judge Eleanor MacDonald issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent's Division-
al Assistant Director of Nursing John Edson un-
lawfully interrogated and warned employee Evy
Papillon concerning her protected concerted activi-
ties in an interview on 19 August 1983. The Re-
spondent excepts, contending in part that, given
the circumstances surrounding the questioning, the
questions were not coercive. We find merit in the
Respondent's exception.
Employee Evy Papillon worked as a registered
nurse for the Respondent from 1974 until her dis-
charge in 1983. On 2 July 1983 she requested a
transfer from a nephrology unit to a geriatric unit,
admittedly in part because of the problems she was
having with her supervisor, Susan Cohen. Pursuant
to the Respondent's transfer request procedure, Pa-
pillon was interviewed on 19 August 1983 by John
Edson, divisional assistant director of nursing. Also
present was Mary Lynn Davis, the new nurse co-
ordinator for the geriatric unit. According to the
credited evidence, Edson asked Papillon why she
wanted to transfer and discussed her prior record
with her. He then asked Papillon if she were aware
of an article which appeared in an International
Committee Against Racism (INCAR)' newsletter
distributed at the hospital. The article discussed
various incidents involving Papillon and Cohen and
indicated that a great deal of tension existed be-
tween them. Papillon stated that she had nothing to
do with the article. Edson told her that he was not
concerned with any involvement she might have
with INCAR, but rather with the substance of the
article which showed a communication problem.
i INCAR is an organization which opposes the collective-bargaining
representative of the Respondent's employees, apparently because
INCAR believes that the Union does not act in the employees' best inter-
est and is not sufficiently militant INCAR's newsletter is designated to
inform employees about perceived problems in the workplace and
INCAR's response to them
693
He then expressed the hope that if she did transfer
to the geriatric unit there would be mote open
communication with her coworkers. After the
interview Edson decided not to approve the trans-
fer based on Papillon's poor record and the nega-
tive views expressed to him by Cohen and Davis.
The judge correctly found the Respondent's failure
to transfer her did not violate the Act.
The judge concluded that Edson's question about
the article in the INCAR newsletter was coercive.
She found that if Edson had not been concerned
about Papillon's activities with INCAR, he would
not have asked about the article. She further found
that Papillon need not have taken Edson's disclaim-
er at face value and that she would tend to have
been coerced by the question. Accordingly, the
judge concluded that the Respondent's questioning
was violative of Section 8(a)(1).
We disagree. The record reveals that the alleged-
ly unlawful question was asked during an interview
which had been initiated by Papillon's request for a
transfer, and that the article about which she was
questioned had been publicly disseminated. In addi-
tion, the credited evidence establishes that Edson
clearly explained the limited nature of his inquiry
and the legitimate reasons therefor In these cir-
cumstances, we find the evidence insufficient to
prove that the questions reasonably tended to
coerce or interfere with Papillon's Section 7 rights.
Rossmore House, 269 NLRB 1176 (1984). Accord-
ingly, we shall dismiss the complaint in its entire-
ty. 2
ORDER
The complaint is dismissed.
z Member Dennis agrees w,th the majority's conclusion that Edson's
questions to Papillon did not violate Sec 8(a)(1) of the Act because of
the limited and legitimate nature of the inquiry, the INCAR article's
public dissemination, and Edson's disclaimer of interest in her INCAR
activities She would not rely on Rossinore House, however, because
Edson did not ask about Papillon's protected activities or union senti-
ments, but only about the substance of the INCAR article, i e, Papillon's
relationship with her supervisor
Additionally, Member Dennis finds that Edson's statement expressing
hope for more open future communications did not constitute an unlaw-
ful threat The record does not support the judge's inference that by this
statement Edson suggested that future transfers and employer approba-
tion hinged on the absence of INCAR articles
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge
This case was tried in Brooklyn, New York, and New
York, New York, on January 13, March 5. 6, and 9, and
April 16, 1984. The complaint alleges that Respondent
violated Section 8(a)(1) and (3) of the Act in that it inter-
rogated its employee concerning protected activities.
274 NLRB No 98
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warned and directed its employee not to engage in pro-
tected activities, denied a transfer to its employee, and
discharged her because she engaged in protected con-
certed activities.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties in June 1984, I make the
following
FINDINGS OF FACT
1. JURISDICTION
It is undisputed that Respondent, a New York corpo-
ration, is engaged in providing medical and health-relat-
ed services in Brooklyn, New York, and that it annually
derives gross revenues in excess of $250,000 and receives
goods valued in excess of $50,000 directly in interstate
commerce . Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
It. ALLEGED UNFAIR LABOR PRACTICES
A. Testimony of Evy Papillon
Evy Papillon worked as a registered nurse for LICH
from 1974 until her discharge in 1983 On December 12,
1982, Papillon began work in the Nephrology Depart-
ment, unit 5A. Before that she had worked in a geriatrics
unit on 3A, but when that unit changed to a 12-hour
shift Papillon asked to be moved to unit 5A which had
8-hour shifts.
On July 2, 1983, Papillon addressed a letter to Prager,
the director of nursing, requesting a transfer from unit
5A to a geriatric unit on 9A. Papillon cited as reasons
her responsibilities as a mother and student that would
be difficult to meet once 5A changed to a 12-hour shift.
But the bulk of the letter was addressed to the "Constant
battle to cope with the animosity" displayed by Susan
Cohen the supervisor of 5A. The letter states that Papil-
lon has been treated with "blatant disrespect and harrass-
ment" by Cohen and gives as an example that Cohen has
accused Papillon of "negligence and incompetence" and
thereby has threatened Papillon's future. The letter con-
cludes by saying that Papillon does not wish "to allow
personal conflicts to interrupt " her duties but that she
thinks "a more pleasant working atmosphere" would
make for a "more productive floor demeanor."
Papillon testified that she was interviewed in connec-
tion with her request for a transfer by John Edson, divi-
sion chief of 9A, on August 21 or 22, 1983, in the nurs-
ing office.' Also present was Davis who would be the
new nurse coordinator (NCC) for the geriatric floor. Ac-
cording to Papillon, after Edson introduced her to
Davis, he said, "in a very angered manner" that there
was a paper by the name of INCAR, "what's this all
about . . . your name is all over . . . Are you a
member of INCAR?" Papillon replied that she was not a
member of INCAR. Edson asked her if she had written
an article for INCAR to print . Papillon denied that she
I Actually, the evidence shows that the interview took place on
August 19
had. Then Edson said, "Well, in that case I will advise
you in the future if I admit you in Unit 9, the geriatric
unit, anything happen to you there between yourself,
myself, or Miss Davis, I would not appreciate it if I saw
it in INCAR." Papillon said she could "not help it" if
stories got into INCAR and that it had nothing to do
with her. According to Papillon, Edson then asked her
why she wanted to move to the new unit so soon after
coming to 5A and she replied that 5A was being
changed to 12 hours and that due to her family and
school commitments she could not work 12-hour shifts.
Edson concluded that interview by saying she would
hear from him Papillon received a letter from Edson
dated August 22, 1983, to the effect that, "Upon review
of your past work record, your transfer to A-9 South
[Geriatrics] is denied."
Papillon testified that a day or two before her inter-
view with Edson, a publication called LICH INCAR
News, Issue #7, had been distributed around the hospi-
tal. INCAR is the International Committee Against
Racism . Issue #7 shows that INCAR is an organization
opposing District 1199, the collective-bargaining repre-
sentative of the nurses of LICH. INCAR apparently be-
lieves 1199 does not act in the employees' best interests
and is not sufficiently militant Page 3 of issue #7 is enti-
tled, "Racist Cohen Strikes Again." The article in sub-
stance relates that Papillon has worked in unit 5A under
Cohen for 7 months and that she has faced "constant
harrassment " The article asserts that Cohen has refused
to let Papillon complete certain training or attend her
own graduation.2 The article asserts that Cohen has
wrongfully told Papillon that the rest of the staff is
afraid of her Finally, the article alleges that Papillon
was suspended after being "set up" by Cohen and ques-
tioned by her concerning a new patient whom Papillon
had not yet seen, and the article refers to an erroneous
charge that the patient's head was not elevated
The article concludes by saying:
We demand that this suspension be rescinded, that
Evie get full pay . . . and that LICH apologize for
the accusation of negligence. We demand that racist
Cohen be fired.3
Papillon testified that she spoke to her union represent-
ative about the denial of a transfer and that she spoke to
Edson. Edson told her the denial was based on a review
of her record. Papillon said that she had a lot of experi-
ence in geriatrics. She did not know who got the job she
had applied for Papillon stated that she had discussed
the problem concerning her transfer with her coworkers.
At 7:30 a.m. on August 25, 1983, Papillon testified, Su-
pervisor Pam Ash called and asked Papillon to come to
her office with a union representative Papillon went to
see Ash accompanied by Union Representative Joan
Rawley. Whitehouse, assistant director of nursing, was
also present. Ash told Papillon that she had heard that
Papillon had quoted Cohen to the effect that instead of
2 The General Counsel offered no testimony concerning these allega-
tions
3 Cohen is white , Papillon is a native of Haiti
LONG ISLAND COLLEGE HOSPITAL
hiring Filipino nurses, the hospital should give higher
salaries to U.S. nurses Papillon denied having told
anyone that Cohen had made such a remark. Ash then
told Papillon to go back to work while she completed
her investigation At 1 p.m that afternoon, Papillon was
again called to Ash's office; she took Rawley with her.
Ash informed Papillon that her investigation showed that
Papillon had indeed made the remarks about Cohen and
that Papillon would be fired The notification of discipli-
nary action given to Papillon by Ash stated that she was
discharged for "insubordination You undermined the au-
thority of your supervisor Ms. Cohen by informing sev-
eral nurses from the Philippines on dates in 1982 and
1983 that Ms. Cohen harbored animosity to the hiring of
Philippine nurses."
Papillon testified that she hand "never" told any Filipi-
no nurse that Cohen said the hospial should not hire Fili-
pino nurses; but she also testified that Cohen had in fact
made this statement in December 1982. According to Pa-
pillon, Cohen had been working at the hospital about 6
weeks when she said at a staff meeting that "it would be
more helpful to the hospital to hire more nurses here by
raising their salary because those girls cost the hospital a
lot of money to come here and . . . when they finish
they don't stay." Papillon stated that all the nurses who
heard Cohen say this were "shocked"; they discussed it
among themselves and some questioned Cohen about it.
Cohen explained that the fare from the Philippines is ex-
pensive. Papillon said there were no'Filipino nurses in
her area on her own shift, but that she overlapped with
some Filipino nurses while the shift was changing and
patient care was being discussed Papillon denied telling
anyone that Cohere was a racist and did not like Filipi-
nos.
On cross-examination, Papillon repeated her assertion
that Edson asked her if she was a member of INCAR
and asked why her name was in the INCAR pamphlet,
asked if she had written the article, and warned her
about future use of her name by INCAR There is no
mention that Edson asked Papillon if she belonged to
INCAR in either of two statements given by Papillon
before the trial. Papillon was sure Edson did not discuss
her past record; he merely told her that he would look
over her record and get back to her. The two discussed
only INCAR and the fact that Papillon had geriatric ex-
perience and could not work a 12-hour shift. This inter-
view lasted 10-15 minutes. Papillon admitted on cross-
examination that she wanted the transfer because she was
not getting along with Cohen; she felt Cohen was not
fair to her, and she and Cohen shouted at each other.
After extensive cross-examination, Papillon was still in-
sisting that she did not discuss her problem with Cohen
during her interview with Edson because "he didn't give
me the chance." Then, Papillon changed her testimony
to say that Edson did ask her, "[W]hat's happening be-
tween you and Susan Cohen?" Papillon did not tell
Edson about the situation, she merely said that she did
not feel comfortable on the ward.
Papillon was unwilling to answer a question on cross-
examination concerning her work record. She professed
not to recall that she had had 15 conferences on per-
formance problems, 7 warnings, and 4 suspensions. When
695
confronted by documentary evidence of her record, Pa-
pillon stated that most of the discipline was meted out by
Susan Cohen "almost every week " Papillon claimed
Cohen gave her at least 20 disciplinary contacts Papillon
constantly fenced with counsel for Respondent and was
very reluctant to recall anything on cross-examination.
Papillon's personnel file reveals many notations of defi-
ciencies made by Cohen. It also contains numerous
warnings and disciplinary memoranda by a wide variety
of supervisors relating to behavioral difficulties and nurs-
ing errors dating back to 1975.
In July 1982, Papillon came to work during a strike
and she received a form letter thanking her for her
"commitment and assistance ." She also received a letter
in September 1979, thanking her for serving as an ob-
server for the hospital in an election conducted in the
nurses unit . The General Counsel urges that these are
letters of personal commendation; actually they are form
letters thanking Papillon for a particular service and
have no bearing on her past disciplinary record
On cross-examination, Papillon stated that Edson had a
copy of INCAR News issue #7 when he interviewed
her. Papillon stated that she never gave INCAR any in-
formation about her situation but that everyone at the
hospital knew the details of her job circumstances be-
cause she always had an 1199 delegate with her when
she was disciplined. However, she admitted that it was
unlikely that an 1199 union representative would share
any information with a rival such as INCAR. Papillon
insisted that she had never had any discussions with
INCAR. When asked how INCAR had gotten informa-
tion about the first day's proceedings in the instant trial,
Papillon stated that she had kept up with former co-
workers at the hospital.
In response to further questions on cross-examination,
Papillon testified that on August 25, 1983, Ash told Pa-
pillon that she had heard that Papillon said Cohen had
expressed the opinion that the hospital was wasting
money on Filipino nurses and instead of paying them it
should increase the salaries of U.S. nurses Papillon
denied saying this to the Filipino nurses . Papillon did not
tell Ash whether she had made this statement to non-Fil-
ipino nurses because Ash did not ask about that. Papillon
did not tell any nurses about Cohen's statement, she
merely discussed this with nurses who had themselves
heard Cohen make the statment; these included Margaret
Fleming, Sophie Barnas, Janet Walker, and Miss Venett.
Papillon testified that she did not tell Ash that she had in
fact heard Cohen make the anti-Filipino statement be-
cause Ash's question came "as a shock" to her. Papillon
had no time to think. Papillon believed many people had
heard Cohen make this statement and she wondered why
she was "selected." She believed Ash knew Cohen had
made the statement in public.
After Papillon's discharge, she attended a grievance
meeting called by District 1199 in her behalf Respond-
ent was represented by Vice President for Human Re-
sources Sid Seligman . Seligman asked Papillon if she had
quoted Cohen as making anti-Phillippine statements. Pa-
pillon denied saying anything about Cohen, but she did
not at that time inform Seligman that Cohen had indeed
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made the derogatory remarks about the hospital's Filipi-
no employees because it was not her "place" to do it
Papillon maintained that she only discussed Cohen's
remarks with her coworkers right after the staff meeting
in December 1982. After persistent questioning by coun-
sel for Respondent, she reluctantly recalled that some co-
workers had asked her about Cohen's alleged statement
in 1983. One afternoon two Filipino nurses asked her if
she had ever heard about Cohen's remarks and she said,
"Don't ask me anything like this because this has nothing
to do with me . . I have enough problems with Miss
Cohen, don't add anymore. That's all I need to be fired "
The two nurses were Angie Umale and Rosemary
Dumale. She remembered "exactly" and "clearly" that
the two nurses came to her 2 days before she was fired
as the shift was changing 4 They said, "Evy is this true?"
Papillon had never told anyone about this incident before
because she was never asked about it. She was sure this
occurred 2 days before she was fired Another nurse was
there by the name of Doris Bordon; she asked the two
nurses why they were questioning Papillon and then she
said, "[Y]ou could say you overheard but don't [say that]
Evy tells you." Papillon had never told anyone about
Bordon's remark before the trial.
I do not find that Papillon was a credible witness. She
tended to embroider and exaggerate her testimony, often
reciting facts at the trial which she had not put into her
prior sworn statements. She was extremely uncoopera-
tive on cross-examination, often refusing to concede mat-
ters which were set forth in writing before her Her
basic story does not make sense in a number of ways.
For instance, it was my observation of Papillon that she
very often elaborated on her answer under oath and
often answered questions that were not posed by coun-
sel. Indeed, she insisted on giving a justification for many
of her answers even when asked for a simple "yes or no"
response. Viewed against this background, her testimony
that she never told Respondent's management that
Cohen had in fact made derogatory statements about Fil-
ipino recruiting because she was never asked the specific
question is impossible to believe. It strains credulity to
take seriously the proposition that Papillon would go
through a discharge and a grievance procedure without
once telling management that the statement that she was
being fired for repeating had in fact been made by
Cohen.
Moreover, as will be seen below, Papillon's assertions
are not borne out by any reliable witnesses No nurse
was produced who heard the derogatory statement by
Cohen Indeed, several nurses who heard Cohen's hostile
statement about Filipinos according to Papillon testified
and denied that they had heard Cohen disparage Filipino
recruiting. Further, despite Papillon's denials that she
ever repeated Cohen's statement to a Filipino nurse, two
such nurses testified credibly that Papillon had talked to
them about the subject.
4 In fact, the hospital's records establish to my satisfaction that Papil-
Ion reported sick on August 23, 1983, and did come to work
B Testimony of Lois Maynard
Lois Maynard, who was called as a rebuttal witness by
the General Counsel , worked as a nursing assistant at
LICH from January 1980 to November 1983. She was
discharged by the hospital and an arbitration proceeding
is pending in the matter.
In December 1982, Maynard and Margaret Fleming
were talking and Fleming told her that Cohen said at a
staff meeting that she did not "know why the hospital
was hiring so many Filipino nurses . . [the hospital]
should use their money on . . the American people
. . . instead of bringing on the Filipino nurses , because
they were too slow and they didn 't fit in "
On cross examination , Maynard testified that no one
else was present during her conversation with Fleming,
but that she discussed it with other nurses aides such as
Theresa Green , Doris Bordon, Joanne Ferraidoli, Ms.
Paul, and Gloria . Paul and Gloria had been at the meet-
ing with Cohen She never asked Cohen about the re-
marks. Although the subject was discussed for some time
afterwards , Maynard never mentioned it to management
or to the Filipinos . Maynard gave her affidavit to a
Board agent on April 11, 1984, 4 days before she testified
in the instant trial . She had not come forward earlier.
When asked whether she had discussed Cohen's remarks
with Evy Papillon , Maynard replied , "yes, I think so."
When asked why she had not mentioned Papillon in any
of her prior testimony , Maynard replied that she thought
the question related only to those who told her what
Cohen had said . A reading of the testimony shows that
this answer is nonsense . I am convinced that Maynard
was not truthful and was covering up her inability to
give consistent testimony . Once she was reminded that
she had forgotten Papillon , Maynard proceeded to testify
that she had discussed Cohen's remarks with Papillon
and also with Sophie Barnas
Maynard was cross-examined about how she came to
be called as a rebuttal witness. She was unwilling to give
any details until pressed repeatedly
I conclude that Maynard was not a credible witness
and I shall not rely on her testimony Further, her testi-
mony about Fleming and Barnas was contradicted by
Fleming and was not corroborated by Barnas , as will be
seen below.
C Testimony of Carmelita Pallagao
Carmelita Pallagao testified that she had worked for
Respondent as a registered nurse for 1 year and was soon
resigning her position to return to her home in the Phil-
ippines.
When she began work in January 1983, her head nurse
was Susan Cohen. Pallagao stated that in February 1983,
while she and Evy Papillon were at a patient's bedside,
Papillon told her that Cohen did not like Filipinos. Up to
that time, Pallagao testified, she had felt that Cohen
treated Filipinos and non-Filipinos equally and distribut-
ed praise and rebukes on a nondiscriminatory basis. After
Papillon imparted her information to Pallagao, the latter
observed Cohen very closely but she did not observe
any inequality of treatment. In the summer of 1983, after
Papillon came back from a suspension, Papillon and Pal-
LONG ISLAND COLLEGE HOSPITAL
lagao were doing walking rounds one morning, and Pa-
pillon said that at a staff meeting Cohen had questioned
the hospital's policy of hiring Filipino nurses when in-
stead it could raise the salaries of U.S. nurses.
Pallagao decided to ask Cohen directly about what she
heard from Papillon About I month later, she confront-
ed Cohen after a staff meeting in the conference room.
Pallagao asked Cohen if Cohen had indeed made the
statement attributed to her by Papillon, and Cohen said,
"Oh Carmelita, do you really believe I said that?" Cohen
appeared surprised Pallagao told Cohen she had heard
about the alleged remark from Papillon. Two other Fili-
pino nurses were present at this time, Carmelita Ciervo
and Corazon Dumali
On cross-examination, Pallagao recalled that Papillon
said she would talk to Prager, the director of nursing,
about Cohen's comment and also tell her Filipino friends
of these comments
Pallagao has passed the New York State licensing ex-
amination She stated her belief that if she wanted to
return to New York State to work as a registered nurse
in a hospital other than LICH it would not be difficult to
get a job offer from another hospital It is clear to me
from her testimony that Pallagao knew that Respondent
wished to continue her employment long before she testi-
fied in the instant trial. Pallagao chose to resign because
she wished an extended vacation at home, but she had an
offer to return to the hospital thereafter I do not find
that her employment status prejudiced her testimony in
any way. She testified in a clear, cooperative, and forth-
right manner and I credit her testimony entirely.
D. Testimony of Rosemarie Umak
Rosemarie Umali is a registered nurse at LICH who is
a native of the Philippines. In June 1983, Umali was talk-
ing to Papillon about Cohen and Papillon told Umali that
Cohen had said the hospital was wasting money hiring
Filipino nurses because there were many good nurses in
the U.S. Umali had never noticed that Cohen treated her
unfairly.
Umali testified that Melanie Corpuz of Respondent's
personnel department later asked her if she had heard
Papillon make remarks against Filipino nurses and when
Umali told her that she had, she was called to Vice
President Seligman's office. Seligman asked Umali to tell
him what had happened and then asked her to provide a
written statement.
Umali told Papillon that Papillon's statement had come
to Corpuz' attention and Papillon asked her not to men-
tion her name or get her involved.
I find that Umali was a credible witness and I shall
rely on her testimony.
E. Testimony of Sid Seligman
Seligman testified that he has observed INCAR picket-
ing the hospital and handing out its newsletter.5 As a
matter of routine, Seligman was informed in August 1983
that Papillon's transfer was not approved, but he was not
aware of Edson's interview with Papillon at that time.
5 Seligman is also a law student
697
He first learned the contents of the interview after the
instant charge was filed following Papillon's discharge.
When he was informed by the Board agent investigating
the instant case that Edson had questioned Papillon
about INCAR, Seligman spoke to Edson about the inter-
view; prior to that time Seligman had not been aware
that Edson had asked Papillon about INCAR.
When Seligman discharged Papillon, he was unaware
of any activity by her on behalf of INCAR, but he knew
that her name had appeared in an INCAR publication as
have the names of many employees 6
Seligman described the events leading to Papillon's
discharge; received a call from Susan Cohen who report-
ed that some Filipino nurses had asked her whether she
was biased against Filipinos. These nurses told Cohen
that Papillon had told them that Cohen had questioned
the recruitment of Filipino nurses by the hospital. Selig-
man asked Cohen to verify the conversation and he
asked Melanie Corpuz, a Filipino who works in the per-
sonnel department, to set up a meeting for him with the
Filipino nurses. Seligman testified that he regarded Papil-
lon's allegation as "very serious" because it involved
ethnic discrimination. After Cohen denied having said
anything that could be construed as exhibiting a bias,
Seligman met with nurses Hatulan, Pallagao, Ciervo, and
Umali. These nurses told him that they had not seen any
in Cohen's treatment of them and they informed him that
Papillon had told them that Cohen had made statements
questioning the recruitment of Filipino nurses. Seligman
told the four nurses that the allegations were serious and
he asked them to prepare written statements with a view
to a possible arbitration proceeding. Seligman did not
prepare the statements, the nurses wrote them out by
themselves in longhand. Hatulan and Ciervo no longer
work for Respondent and they could not be located for
the trial However, they were interviewed by a Board
agent during the investigation of the instant case
Seligman testified that the hospital has nondiscrimina-
tory policy toward all of its employees and that he
viewed an allegation of ethnic prejudice seriously.'
Moreover, the hospital had recruited Filipino nurses and
asked them to travel "halfway around the globe to the
hospital," and he wanted them to feel as comfortable as
possible in the workplace." He asked Ash to speak to Pa-
6 A number of INCAR newsletters distributed at LICH were intro-
duced into evidence They are strident and not at all subtle in tone and
choice of words The articles criticize District 1199 leaders, political fig-
ures, and hospital "bosses" mercilessly It is not uncommon for an em-
ployee of LICH who has allegedly been victimized by District 1199 or
by LICH to be mentioned by name and for demands to be made on the
employee's behalf A reading of the newsletters in evidence shows that
the article about Papillon's troubles with Cohen is not any more remarka-
ble than the other articles in the INCAR publications, It was not proven
that any other LICH employees have suffered retaliation for having been
mentioned in an INCAR publication
7 Seligman stated that the hospital is "a multi-ethnic institution in a
multi-ethnic community, and the problems, whenever prejudice raises its
head are monumental, and they have to be dealt with forthrightly and
quickly "
9 Seligman testified that recruiting in the Philippines is cheaper than
most American recruiting The nurses reimburse the hospital for their
plane fare
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pillon, and Ash reported that Papillon denied making the
remarks attributed to her by the four nurses. Seligman
decided that the four nurses were highly credible and he
determined that Papillon' s allegations were a kind of ma-
licious slander against Cohen. Seligman decided that Pa-
pillon's denials were not credible 9 He determined to dis-
charge Papillon based on her malicious slander and based
on her previous disciplinary record.
The four statements which relied on by Seligman in
discharging Papillon state, in pertinent part are-
(1) Umali's statement that "[Cohen] said accord-
ing to Miss Papillon `the hospital is wasting money
for recruiting Filipino nurses, and why does the
hospital get nurses from Philippines while in fact
there are good nurses here."'
(2) Hatulan's statement that Papillon told Hatulan
that "Cohen told her and the people in a party last
December that why is it that the hospital is spend-
ing that much recruiting Filipino nurses."
(3) Ciervo's statement - "Some where in Decem-
ber Mrs E. Paprllon talked to me . . . about what
Ms S Cohen had told them, the morning staff
when they had a Christmas party . . . Susan
Cohen said `why does LICH hire some Fil. nurses
. .' Ms. Papillon added that Ms. Cohen doesn't
like Fillipino nurses."
(4) Pallagao's statement that "[Papillon] told me
that Susan Cohen asked some of the nursing staff
'why is the Long Island College Hospital re-
cruiting nurses from the Philippines when they can
raise the salaries of nurses here."'
Seligman answered questions carefully and exactly. I
find that he was a credible witness and I shall rely on his
testimony.
F. Testimony of John Edson
John Edson was divisional assistant director of nursing
at LICH in 1983. In mid-August of that year he was in-
formed through the usual channels that Papillon had re-
quested a transfer and in accordance with procedure he
made an appointment to see her. He reviewed Papillon's
file and spoke to Cohen, her immediate supervisor. In
Papillon's disciplinary file, he found that she "had a long
history of disciplinary actions concerning performance
and concerning communication problems with previous
supervisors "10 When he met with Cohen he asked her
about some of the things that appeared in Papillon's file
and Cohen said she was having considerable problems
with Papillon. Cohen told Edson that it would be wrong
to permit Papillon to transfer because it would be in the
nature of a reward
Edson interviewed Papillon on August 19, 1983, about
11 a.m in the presence of Mary Lynn Davis, the nursing
care coordinator who would have been Papillon' s imme-
diate supervisor if the transfer had been granted. The
interview lasted 15 to 20 minutes. Edson began by intro-
ducing Papillon to Davis He then asked why Papillon
wanted to transfer into a geriatric unit in view of the fact
that she had previously left another geriatric unit. Papi-
Ion replied that she had left to learn a new skill, perito-
neal dialysis, and that she wanted to return to geriatrics.
She added that in her entire nursing career she had never
had the kind of problems she was having now with
Cohen. Edson replied t:.at she was presenting herself as
a model employee wher ;s her record indicated other-
wise At that point, . •l^i 'on said that she now realized
that Edson only wanteu to learn about her relationship
with Cohen. Edson said that he was really interested in
the discrepancy between the way Paprllon presented her-
self and her actual record, and that he was concerned
that she had communications problems on her unit He
asked her if she was aware of the articles appearing in
INCAR. Papillon said she had nothing to do with the ar-
ticles. Edson said he did not care about her involvement
with INCAR, only about the substance of the articles
which showed a communications problem. He told Pa-
pillon that if she transferred to a new unit he "would
hope for a much more open communication between her
and her co-workers." Papillon said she had taken courss
in interviewing and that if Edson "knew anything about
interviewing, [he] wouldn't be concerned with her past
record." The interview ended soon after this exchange.
Edson testified that he did not ask Papillon if she be-
longed to INCAR nor how INCAR got information
about her. He "was concerned about the substance of the
articles that indicated that she was having communica-
tions problems with her co-workers."
After the interview, Edson discussed Papillon's trans-
fer request with Cohen, Ash, and Prager, and he decided
that he would not approve the transfer based on Papil-
lon's past performance and especially her problem in
communicating with other employees.
Edson informed Seligman of his decision because Sel-
igman is vice president for human resources. He did not
discuss the matter in detail with Seligman until after Pa-
pillon was discharged and about 2 months before the in-
stant trial. At the time, Seligman and Edson discussed
Edson's interview of Papillon When Seligman asked
Edson if he had asked Papillon about INCAR, Edson
said yes Seligman then said, "[D]on't you know that
you're not supposed to ask about an outside organiza-
tion?" Edson replied that he was only inquiring about
the substance of the articles. The two then discussed the
entire interview between Papillon and Edson.
Edson had not been involved in the decision to dis-
charge Papillon and he learned of it only after it took
place.
Edson testified in a forthright manner and had a good
recollection He candidly admitted questioning Papillon
about the INCAR article and did not evade the issue. I
find that he was a credible witness and I shall rely on his
testimony.
9 Until he heard Papillon's testimony at the trial , Seligman had never
heard that Papillon contended that Cohen had indeed made derogatory
remarks about recruitment in the Philippines
10 By "communication problems" Edson meant that Papillon could not
get along with people
G. Testimony of Mary Lynn Davis
Mary Lynn Davis is nursing care coordinator of unit 9
south She was present at Edson's interview with Papil-
LONG ISLAND COLLEGE HOSPITAL 699
Ion, and in preparation for the interview she reviewed
Papillon's personnel file. The file showed problems in the
past in relations with supervisors and problems concern-
ing nursing care judgments. At the interview, Edson
asked Papillon why she wanted a transfer. Papillon re-
plied that she wanted to change to geriatrics and needed
a change of location. Papillon said there were problems
with Cohen. Edson said that, although he did not want
to discuss the specifics of her problems, he was con-
cerned that there were problems with Papillon's superi-
ors and coworkers and that if she were to transfer she
would have to work on these problems. Edson asked Pa-
pillon if she was aware that there were articles in
INCAR about her problems. When Papillon replied that
she was not responsible for the articles, Edson said that
he was not concerned how they got there but that he
was concerned that she had problems communicating
with superiors and staff members. When Papillon said
she had a good record, Edson replied that in looking
through her file that was not the case and that there had
been previous problems.
After the interview concluded, Davis told Edson that
in view of Papillon's problems with communications and
nursing judgment she was not interested in accepting Pa-
pillon as an employee.
On cross-examination, Davis testified that Papillon had
not stated in the interview that she had a problem coping
with a 12-hour shift
I find that Davis was a truthful witness and I shall rely
on her testimony.
H. Testimony of Susan Cohen
Susan Cohen is no longer employed by Respondent,
having left because she wanted new opportunities. Cohen
was the nursing care coordinator who supervised Papil-
lon in 1983 Cohen testified that she had multiple prob-
lems with Papillon. The latter behaved unprofessionally
being loud and disruptive and screaming at Cohen and at
physicians, nurses, and union representatives.
In July 1983, Cohen recommended a suspension for
practice and medication errors This was later reduced to
a warning notice by Seligman Some time in summer
1983, Edson told Cohen that Papillon had requested a
transfer and that he was concerned because Papillon was
known as a very difficult person. Cohen told him that in
her view Papillon was doing badly in conduct and per-
formance and that transfers under the union contract
were reserved for satisfactory employees.
In August 1983, Cohen came to the hospital to meet
with the night-shift employees. Three Filipino employees
were present: Ciervo, Pallagao, and Dumale. At the end
of the meeting Pallagao asked Cohen if it were true that
Cohen did not like her and wanted her to go back to the
Philippines. Cohen told the nurses that this was not true
and that they should judge her by her actions. The
nurses told Cohen that Papillon had told them Cohen did
not like them. The next morning, Cohen informed Ash
and the next week she told Seligman about this conversa-
tion.
Cohen testified that she could not recall making any
statement similar to the one reported by the Filipino
nurses She recalled only that in December 1982, at
Prager's suggestion, she asked for donations of warm
clothing for the newly arriving Filipino nurses.
Cohen was not involved in the decision to discharge
Papillon, Seligman and Ash notified her when the deci-
sion had been made. Papillon had never accused Cohen
to her face of being prejudiced, she only accused her of
being stupid and a poor manager.
Cohen stated that she was often more lenient with Pa-
pillon than with other nurses because Papillon was inco-
herent and pathetic. Although Cohen was angry with
Papillon she also felt sorry for her.
I find that Cohen was a reliable witness and I was par-
ticularly impressed with her demeanor while testifying I
shall rely on Cohen's testimony.
I Testimony of Pamella Ash
Pamella Ash is associate director of nursing for ambu-
latory care at LICH On August 25, 1983, she received a
call from Seligman and Cohen informing her that they
had statements from Filipino nurses that Papillon had
quoted Cohen as making derogatory comments about
Filipinos. Seligman asked Ash to meet with Papillon and
investigate whether Papillon had indeed said the things
alleged by the Filipino nurses. Ash interviewed Papillon
in the presence of Whitehouse and Rawley. Ash asked
Papillon if she had ever said anything about the recruit-
ment of Filipino nurses or if she had said that Cohen said
recuriting Filipino nurses was a waste of money when
the hospital could be raising the salaries of nurses here.
Papillon answered that she never spoke to the Filipino
nurses and that she had never made such statements,
"never, never, never." Papillon did not tell Ash that
Cohen had in fact made these statements.
Ash informed Seligman of the susbtance of the inter-
view with Papillon Seligman recommended that discipli-
nary action be taken against Papillon, and she was termi-
nated for insubordination, that is, undermining the au-
thority of her supervisor by making inaccurate state-
ments to the Filipino nurses After Papillon's discharge,
Ash attended grievance sessions with Papillon and Dis-
trict 1199 representatives During the grievance proce-
dures, Papillon again denied having any conversations
regarding statments made by Cohen about Filipino
nurses Further, Papillon never said that she had in fact
heard Cohen make statements about recruiting in the
Philippines
I find that Ash was a credible witness and I shall rely
on her testimony.
J. Testimony of Margaret Fleming Volkheimer
Margaret Fleming Volkheimer, a nurse employed by
LICH, testified that she never heard Cohen make any re-
marks about Filipino nurses She could not recall any
conversation with Papillon about Cohen 's alleged state-
ments Fleming Volkheimer was sure that she would
have remembered if she had heard a supervisor at a staff
meeting make a comment that was critical of the hospi-
tal's Filipino recruitment program and if she had dis-
cussed that comment later with other employees . I found
this witness to be cooperative and forthright on both
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
direct and cross-examination, and I shall credit her testi-
mony.
K. Testimony of Sophie Banas Kwasnicki
Sophie Banas Kwasnicki , a nurse at LICH, testified
that she could not recall hearing Cohen make any com-
ments about Filipino nurses nor could she recall hearing
that Cohen had made such comments . She did not re-
member discussing Cohen' s alleged statements with Pa-
pillon
1. Positions of the parties
The General Counsel argues that activities related to
and in support of INCAR are protected concerted activi-
ties under the Act. Edson testified that he was concerned
about the substance of the INCAR article relating to Pa-
pillon's problems with Cohen and that he spoke to Papil-
lon about it. Edson's testimony amounts to an admission
of unlawful interrogation, a warning not to engage in
future concerted activities and a refusal to transfer due to
protected activities, according to the General Counsel.
Finally, the General Counsel argues that Respondent dis-
charged Papillon because she engaged in the protected,
concerted activity of complaining about her supervisor
to her coworkers.) i Respondent's defense that Papillon's
complaints were a malicious falsehood were a pretext,
because Cohen did in fact make the statements attributed
to her.
Respondent argues that Edson's questions and state-
ments to Papillon were not unlawful in that they did not
tend to restrain, coerce, or interfere with her rights,
citing Rossmore House, 269 NLRB 1176 (1984). Further,
Respondent denied Papillon's transfer request for the
lawful reason that she had a poor work record and a his-
tory of not getting along with her supervisors. Concern-
ing Papillon's discharge, Respondent asserts that this was
due to her malicious slander of her supervisor Susan
Cohen and was not related to the article in INCAR. Fi-
nally, Respondent takes the position that INCAR's ac-
tivities at LICH are not protected by the Act.
2. Discussion and conclusions
As discussed above, I do not find that Papillon and
Maynard were credible witnesses and I shall not rely on
their testimony Moreover, for the reasons discussed
above, I shall rely on the testimony of Respondent's wit-
nesses.
As is clear from my discussion of the testimony of the
various witnesses, I find that Cohen did not make the
statements attributed to her by Papillon and Maynard. I
also find that Papillon did in fact tell the Filipino nurses
that Cohen had questioned their recruitment, said she did
not like them and expressed the opinion that the money
spent to recruit them would be better spent increasing
the salaries of nurses already in the U.S
I shall deal first with Papillon's discharge: It is beyond
cavil that Papillon had a poor personnel record replete
with warnings and memoranda of counseling relating to
deficiencies in nursing practice and failures to get along
with a long list of supervisors. Based on the credited tes-
timony, I find that Seligman was told that Papillon had
raised in the minds of several Filipino nurses, a question
that their immediate supervisor did not welcome their
presence at the hospital and regarded their salaries as ill
spent. The nurses had been sufficiently upset by this alle-
gation so that one of them had watched her supervisor's
conduct for 6 months and then asked the supervisor if it
were true. Seligman investigated the problem and con-
cluded that Papillon had spoken to the Filipino nurses
and that her statements had been false and malicious He
reasoned that by spreading false reports about her super-
visor, Papillon had spread ethnic dissension and under-
mined the authority of the supervisor. In view of her dis-
ciplinary record, he decided to discharge Papillon. There
is no evidence that Papillon's discharge was in any way
related to any protected concerted activity. First, the
record contains no proof that Papillon engaged in such
activity and she denied any contact with INCAR.
Second, there is no proof that Seligman was aware of
any protected concerted activity engaged in by Papillon
nor is there any proof that Seligman believed that Papil-
lon had engaged in any such activity. Seligman knew
that Papillon's name had been mentioned in an INCAR
newsletter; but this was not uncommon at LICH and
there is no proof that the newsletter article was linked to
his decision to discharge Papillon
With respect to Edson's transfer interview with Papil-
Ion, since I do not credit Papillon's testimony, I shall
rely on the version of the interview given by Edson and
Davis. Thus, I find that Edson asked Papillon why she
wanted to transfer and discussed her prior record with
her. He then asked Papillon if she was aware of the
INCAR newsletter article, told Papillon that he was not
concerned with any activities she might engage in with
INCAR, and then expressed the hope that if Papillon
transferred there would be "more open communication"
with her coworkers.
After the interview, Edson decided not to approve the
transfer based on Papillon's prior record and based on
the negative views of Davis and Cohen Edson testified
that he considered Papillon's past performance and espe-
cially her problem in communicating with other employ-
ees.
I find that by asking Papillon if she was aware of the
INCAR article and expressing the hope that in the future
there would be more open communications, Edson en-
gaged in unlawful interrogation and warning.12 First,
Edson was asking Papillon about an article concerning
her problems on the job; the article appeared in a publi-
cation dedicated to furthering discussion and action by
12 Following the standards of Bourne v NLRB, 332 F 2d 47 (2d Cir
11 The General Counsel urges that Cohen's statements as reported by 1964), I note that Edson had a high enough rank so that he had the final
Papillon do not evidence hostility to Filipino nurses but only relate to the decision whether to grant the requested transfer, that he questioned Pa-
economics of the nurses' salaries However, this contention is undermined pillon in his office during a formal interview, and that his question rea-
by Papillon's assertion that the nurses who heard Cohen's alleged state- sonably would tend to give the impression that he would base his deco-
ment were "shocked " sion on the answer given by Papillon
LONG ISLAND COLLEGE HOSPITAL
employees to ameliorate their work-related problems. Pa-
pillon's actions , if any, in making herself the subject of
such an article must be viewed as having the protection
of the Act. If Edson really was not concerned with Pa-
pillon's activities with INCAR, he would not have asked
about the article. Papillon need not take Edson's dis-
claimer at face value, and I find that she would tend to
have been coerced by the question. Further, Edson was
expressing the wish not only that Papillon would get
along with her coworkers and supervisors but also that
he would not read about her problems in the INCAR
newsletter . In effect, Edson was telling Papillon to solve
her problems in the hospital and avoid having them writ-
ten about by INCAR. This sent had the tendency
to interfere with Papillon's piotected concerted activity
and the tendency to coerce her as well. Any reasonable
employee would take away from this interview the belief
that future transfers and the future approbation of the
Employer would depend, in part, on the absence of arti-
cles in the INCAR newsletter. Thus, I conclude that
Edson coercively interrogated and warned Papillon con-
cerning protected , concerted activities in violation of
Section 8(a)(1) of the Act
Respondent citing Emporium Capwell Co. v. Waco, 420
U.S. 977 (1975), argues that INCAR' s activities are un-
protected because INCAR seeks to bypass the majority
representative of the unit employees . In Emporium a
group of employees were discharged after picketing in
support of their demand that their employer negotiate di-
rectly with them concerning a matter which the union
was taking through the grievance procedure under the
collective-bargaining agreement . The Court agreed with
the Board 's conclusion that the employees ' activities in
support of minority bargaining were not protected. In
the instant case, the INCAR publications submitted into
evidence make it clear that INCAR seeks to promote the
election of its supporters to positions in District 1199 and
that it generally publicizes matters relating to politics
and labor relations as well as subjects of particular con-
cern to employees of LICH Although one INCAR
newsletter did state a "demand" that Papillon 's suspen-
sion be rescinded , this was in the nature of rhetoric and
it contained absolutely no suggestion that Respondent
bargain with INCAR over Papillon 's status There is
thus no basis in this case for finding INCAR' s activities
unprotected . See NYU Medical Center, 261 NLRB 822
701
(1982), remanded 702 F.2d 284 (2d Cir.), vacated 104
S.Ct. 53 (1983) 13
Finally, I must consider whether Edson 's decision to
deny Papillon a transfer was based on a belief that she
was involved in INCAR or was due to the mention of
her problems in the INCAR newsletter The question
posed by Edson in the transfer interview undoubtedly
show the factors he considered important in deciding
whether to grant Papillon's transfer request In his testi-
mony, Edson stated that in denying the transfer he con-
sidered Papillon ' s difficulty in "communicating " or get-
ting along with coworkers As demonstrated by the
questions he asked in the interview , one of the factors
considered by Edson was the article in the INCAR
newsletter which tended to show that Papillon could not
get along with her supervisor , the existence of the article
was of some concern to Edson. Therefore, I find that
protected conduct was a motivating factor in Edson's de-
cision to deny Papillon the transfer . However, based on
the testimony of Edson, Cohen , and Davis , I find that
Respondent has shown that even if Papillon had not
been linked with INCAR, her transfer would have been
denied . It is clear that Papillon 's record was bad, that
Davis did not want Papillon, and that the hospital would
not have rewarded an unsatisfactory employee with a
transfer. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Thus, I conclude that there was no violation of
the Act in the denial of a transfer to Papillon.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section (2), (6), and (7) of the
Act.
2. By coercively interrogating and warning its employ-
ee about engaging in protected concerted activities, Re-
spondent violated Section 8(a)(1) of the Act.
3. The General Counsel has failed to prove any other
violations of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
[Recommended Order omitted from publication ]
13 Although Respondent 's brief urges that INCAR has picketed in sup-
port of certain demands, there was no testimony in the record before me
concerning this matter