The Reading Hospital and Medical Center

National Labor Relations Board - Board Decisions

Oct 27, 1976

226 N.L.R.B. 611 (N.L.R.B. 1976)

READING HOSPITAL AND MEDICAL CENTER
The Reading Hospital and Medical Center and Dis-
trict 1199P, National Union of Hospital and Health
Care Employees, a Division of RWDSU, AFL-
CIO. Case 4-CA-7237-
October 27, 1976 -
DECISION AND ORDER.
BY CHAIRMAN MURPHY AND MEMBERS- FANNING
AND PENELLO
On May 27,1976, Administrative Law Judge Alvin
Lieberman issued the attached Decision-in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and General Counsel filed a reply
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section -10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, The Reading Hospital
and Medical Center, Reading, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge , It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Administrative Law Judge: The hear-
ing in this proceeding, with all parties except the Charging
Party represented, was held before me in Reading, Penn-
sylvania, on January 12 and 13, 1976, upon the General
Counsel's complaint dated October 31, 1975,1 and Respon-
1 The complaint was issued pursuant to a charge filed on February 4,
1975
611
dent's 2 answer. In general, the issue litigated was whether
Respondent violated Section 8(a)(1) of the National Labor
Relations Act, as amended (Act)? More particularly, the
questions for decision are as follows: --
1. Did Sheila Rea, while employed by Respondent, en-
gage in conduct falling within the protection of Section 7
of the Act?
2. Assuming an affirmative answer to the foregoing
question, was Rea discharged in violation of Section 8(a)(1)
of the Act because she engaged in such conduct?
Upon the entire record, upon my observation of the wit-
nesses and their demeanor while testifying, and having tak-
en into account the arguments made and the briefs submit-
ted,' I make the- following:
FINDINGS OF FACT
- I. JURISDICTION
Respondent, a Pennsylvania corporation, is engaged at
Reading, Pennsylvania, in the operation of a hospital. Dur-
ing 1974 Respondent's gross volume of business exceeded
$250,000. In the same period Respondent purchased goods
valued at more than $50,000 from vendors located outside
the Commonwealth of Pennsylvania. Accordingly, I find
that Respondent is engaged in commerce within the mean-
ing of the Act and that the assertion of jurisdiction over
this matter by the National Labor Relations Board (Board)
is warranted.
II. INTRODUCTION
Briefly, this case is concerned with Respondent's suspen-
sion and discharge of Sheila Rea, an operating room tech-
mcian (ORT). The complaint alleges that Rea was sus-
pended and discharged "because [she] engaged in
concerted employee, activities for the purpose of opposing
the discontinuance of Respondent's surgical residency pro-
gram." Rea's conduct in this regard, the General Counsel
asserts, was protected by Section 7 of the Act. Accordingly,
he argues, Rea's suspension and discharge were violative of
Section 8(a)(1).
Respondent contends that Rea's conduct was neither
concerted nor, if concerted, protected. Furthermore, it is
Respondent's position that Rea was discharged for cause;
namely, her threat to write a letter to a newspaper which
Respondent had reason to believe would have disparaged
its hospital, her-excessive absenteeism, and her bad work
habits.
2 The name of Respondent appears as amended at the hearing
3 This section provides
Sec 8(a). It shall be an unfair labor practice for an employer-
- (1) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7,
Sec 7, insofar as relevant, states
Sec 7. Employees shall have the right to engage in concert-
ed activities for the purpose of collective bargaining or other mutual
aid or protection
4
Although all the arguments of the parties and the authorities cited by
them, whether appearing in their briefs or made orally at hearing, may not
be discussed in this Decision, each has been carefully weighed and consid-
ered
226 NLRB No. 99
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. PRELIMINARY FINDINGS AND CONCLUSIONS 5
A.` The Surgical Residency Program and Respondent's
Operating Room Personnel
Under the control of the American College of Surgeons,
the American Board of Surgery, the Council on Medical
Education, and, the American Medical Association, there
was in Respondent's hospital at all material times a surgi-
cal residency program (program) in which physicians,
known as surgical residents, participated. Its purpose was
to train surgeons. Early in 1975 the foregoing organizations
decided that the program should be discontinued` in July
1975.
At all relevant periods there were 14 operating rooms in
Respondent's hospital, almost all of which were in use si-
multaneously. While surgical procedures were carried on in
these rooms, there were present in addition to the surgeon
performing the operation, nurses 6 and, when available, a
surgical resident. In this connection, it was estimated by
Nancy Feeg, an operating room supervisory nurse, that
about "90 percent of the operations [performed] during the
[existence of] the residency program were carried on with-
out assistance by a surgical resident."
In the absence of a surgical resident, as Feeg further
testified, it was sometimes necessary when an emergency
arose during a surgery for an ORT to do things ordinarily
done by a surgeon, including "[slipping] a catheter [and
making] suture . . . if the physician's hands [were] tied
up.
B. The Nature of Sheila Rea's Activities
On January 26, 1975,7 while ORT's, including Sheila
Rea,' in Respondent's employ were in the nurses' lounge
preparing to go to lunch, they learned that the surgical
residency program would be abolished in July. All ex-
pressed their displeasure over the impending discontin-
uance of the program. Among the things they were con-
cerned about was the effect the termination of the program
would have on their work.
In this respect, Lea testified, she posed the-question of
"what would happen in cases of an emergency when very
major surgery came in, who would take over to assist the
surgeon, if the resident was not there?" Concerning this,
Rea and other ORT's feared, as Rea further testified, that
in the absence of a surgical resident during "major surgery
[ORT's] might have to go out of the realm of nursing and
enter into the realm of practicing medicine [by being re-
quired to place] a suture during surgery, [ inserting] a cath-
eter [, or] put[ing] on -a temporary clamp" to restrain bleed-
ing.
The ORT's continued to talk about the foregoing mat-
ters on their way to, and during, lunch. One suggested cir-
culating a petition in the hospital in the hope that this
would result in saving the program. Rea stated, as Marsha
Doermann, an ORT present at the foregoing discussion,
testified, that "maybe a letter [to a newspaper] might help,"
and that she "intended to write such a letter." 9
After lunch on January 26 Rea asked a surgeon, Dr.
Ronald Romig, "if," as she recounted, "a petition . . . to
the proper authorities . . . would be of any effect to keep
the residency program established." Romig replied, Rea
related, that "he didn't think so because the decision [to
abolish the program] had already been made and he didn't
think it would be reversible."
Having received this advice from Romig, Rea did not
circulate a petition, nor did she ever write a letter to a
newspaper concerning the program's termination. Not-
withstanding this, ORT's, including Rea, continued that
day and on the next day or two to talk about the discontin-
uance of the program and the effect it would have on their
duties.
Respondent contends that Rea did not engage in any
activity after the ORT's were informed of the abolition of
the surgical residency program that was either concerted
or, if concerted, protected. I do not agree.
Concerted activity within the meaning of Section 7 of
the Act requires "only a speaker and a listener ." Salt River
Valley Water Users' Association, 99 NLRB 849, 853 (1952),
enfd. in this respect 206 F.2d 325 (C.A. 9, 1953). Here the
activity was engaged in by several speakers and listeners,
all of whom, including Rea, were involved in discussing the
effect the termination of the program would have on their
work. Therefore, rejecting Respondent's contention that
Rea did not participate in concerted activity, I find that she
did so.
Respondent next argues, on two fronts, that Rea's activi-
ty, if concerted, was not protected by the Act. In this re-
gard Respondent first contends that it had no control over
the object of the ORT's concerted activity-the retention
of the program. For this reason, Respondent states on
brief, "concerted activities directed toward matters over
which the employer has no control, do not fall within the
protection of the Act."
Respondent's second point is that, the termination of the
program would have no impact on the work of the ORT's
in the area as to which concern was expressed; namely the
enlargement of the ORT's nursing duties to encompass
5 The purpose of these findings and conclusions is to furnish a frame of
reference within which to consider the facts relating to Respondent 's alleged
unfair labor practices and to the conclusions to which they may give rise To
the extent that the contentions of the parties relate to the findings and
conclusions made here they will be treated here, although they, as well as
the findings and conclusions , may again be considered in other contexts
6 Operating room nurses are classified by Respondent as operating room
technicians (ORT's)
r All dates hereinafter mentioned without stating a year fall in 1975
B Rea 's later suspension and discharge are alleged in the complaint as
having been violative of Sec. 8(a)(1) of the Act
9 Rea denied saying that she intended to write to a newspaper about the
abolition of the program Her denial , however, is contrary to the weight of
the evidence and is not credited My not believing Rea in this respect should
not be taken as an indication by me that she was an untrustworthy witness
The contrary is the case Rea demeaned herself well on the witness stand
and impressed me generally as being credible Findings have already been
made on the basis of her testimony and additional findings will be made on
the same basis "It is no reason for refusing to accept everything that a
witness says, because you do not believe all of it , nothing is more common
in all kinds of judicial decisions than to believe some and not all " N L R. B
v Universal Camera Corporation , 179 F 2d 749, 754 (C A 2 , 1950), reversed
on other grounds 340 U S 474 (1951)
READING HOSPITAL AND MEDICAL CENTER
functions more properly performed by a surgeon . This lack
of impact on their working conditions , Respondent argues,
likewise deprives the concerted activity engaged in by Rea
and other ORT's of the Act's protection.
Assuming the validity of the premises on which the fore-
going arguments are based , they are, nevertheless , not well
taken . That Respondent had no -control over the retention
of the program or that its abolition would not have re-
quired ORT's to do more than they were doing during the
program's existence are not determinative of the nature of
the concerted activity here carried on. Neither its futility in
achieving the retention of the program nor Rea's mistaken
belief that the discontinuance of the program would result
in ORT's having to perform duties not within a nurse's
competence are detractive of the protection afforded by
Section 7 of the Act to the concerted activity engaged in by
Rea and other ORT's "for the purpose of [their] mutual
aid" in matters related to their work.
It is well settled that the "reasonableness of workers'
decisions to engage in concerted activity is irrelevant to the
determination of whether" such activity is protected by the
Act. N.L.R. B. v. Washington Aluminum Co ., 370 U.S. 9, 16
( 1962). Similarly , the Court held in an earlier -case N.L.R.B.
v. Mackay Radio & Telegraph Co., 304 U.S. 333, 344, that
"the wisdom or unwisdom of [employees ], their justifica-
tion or lack of it" has no bearing on the question of wheth-
er they are exercising rights guaranteed in Section 7 of the
Act. "To hold otherwise," the Board stated in Ben Pekin
Corporation, 181 NLRB 1025 (1970), enfd . 452 F.2d 205
(C.A. 7, 1971), "would severely curtail employees' rights to
act on behalf of themselves and their fellow employees."
Accordingly, I conclude that the activity engaged in by
Rea and other ORT's, including Rea's statement that she
intended to write a letter to a newspaper concerning the
termination of the surgical residency program,10 was both
concerted and protected by the-Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts Concerning Respondent's Alleged Violations of
Section 8(a)(1) of the Act
Sheila Rea, a licensed practical nurse, was hired by Re-
spondent in October 1970 and assigned to work as an
ORT. She was suspended on January 30, 1975, and dis-
charged- on February 10. As already noted, Rea's suspen-
sion and discharge are alleged in the complaint as having
been violative of Section 8(a)(1) of the Act.
Rea was not a model employee. She was frequently ab-
sent and shirked unpleasant duties.
As set forth above, on January 26, 1975, Rea and other
ORT's learned of the forthcoming termination of the surgi-
cal residency program. During their ensuing discussion on
that day concerning this matter Rea stated that she intend-
ed to write a letter to a newspaper regarding the program's
abolition.
Beyond saying that such "a letter might help," Rea did
not further elaborate on her statement. Nor does it appear
10 Cf Walls Manufacturing Company, Inc, 137 NLRB 1317, 1318-19
(1962), enfd 321 F 2d 753 (C.A.D C., 1963), cert denied 375 U.S 923.
613
that she told anyone at any time what she planned to in-
clude in the letter.
At one point in the discussion by the ORT's in the nurs-
es' lounge on January 26, concerning the program's termi-
nation, Rea remarked, as Joan Herb, a head nurse, testi-
fied, that Respondent's hospital was "a terrible place to
work" and referred to it as "this G.D. place."
On January 28, Rea's statement that she intended to
write a letter to a newspaper concerning the discontin-
uance of the program was reported to Dr. Herbert John-
son, Respondent's acting director of surgery. Fearing that
Rea's letter would be derogatory of the hospital, Johnson
told Ronald Schwartz, Respondent's administrative assis-
tant for surgical services, that Rea should be directed not
to write the letter. Johnson also asked Nancy Feeg, an op-
erating room supervisor, to try to dissuade Rea from writ-
ing the letter.
Following his conversation with Johnson, Schwartz in-
formed Thomas Seabourne, Respondent's personnel direc-
tor, of Rea's stated intention to write the letter and suggest-
ed that Rea be disciplined. Seabourne agreed. Accordingly,
on January 30, Rea was suspended.
The next day Rea received a letter from Seabourne di-
recting her to appear in his office on February 3 for a
suspension interview.
The interview, which was held as scheduled, consumed
about an hour. A susbstantial portion of this time was giv-
en over to Rea's discussion with other ORT's concerning
the discontinuance of the surgical, residency program,
Rea's opposition to its termination, and her statement that
she intended to write to a newspaper. Other subjects were
also covered, including Rea's absences and her objection,
voiced about a month earlier, to the installation of a
chandelier in the hospital's lobby.
On February 10, Rea was discharged by Seabourne, Re-
spondent's personnel director. Seabourne testified, that
"enter[ing] into [his] decision to discharge ... Rea [was
her] threat to write the letter to the newspaper." Respon-
dent's other reasons for terminating Rea's employment, as
stated in its beef, were her "record of bad absenteeism and
bad work habits."
B. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(1) of the
Act
"[T]he existence of valid grounds for punitive action
[against an employee] is no defense unless such action was
predicated solely on these grounds and not by a desire to
discourage protected activity." 11 This is the situation here.
Obviously, Rea's discharge would not have been viola-
tive of the Act had it been based solely on her absences
and bad work habits. N.L.R.B. v. T. A. McGahey, d/b/a
Columbia Marble Works, 233 F.2d 406, 413 (C.A. 5, 1956).
But, as made clear by the testimony of Thomas Seabourne,
.Respondent's personnel director, Rea's stated intention of
writing a letter to a newspaper concerning the abolition of
11 N L.R.B v Fairview Hospital, 443 F 2d 1217, 1219 (CA 7, 1971). See
also N L R B v- Whitin Machine Works, 204 F.2d 883, 885 (C A 1.)
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the surgical residency program was also taken into account
in terminating her employment. Having found that this
statement fell within the Act's protection, I further find
that Rea's discharge contravened Section 8(a)(1) of the
Act.
Inasmuch as Rea's earlier suspension followed hard on
the heels of her announcement that she intended to write
the letter, I find, additionally, that the suspension was like-
wise violative of Section 8(a)(1) of the Act. N.L.R.B. v.
Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2,
1957), cert. denied 355 U.S. 829.
In making these findings I, have carefully considered,
and rejected, Respondent's argument that, as,it states on
brief, it "feared being disparaged by ... Rea's letter to the
newspaper" and that "there was,good cause . . . to believe
that [in her letter Real would exceed the bounds of proprie-
ty and work against the interests of the Hospital." In sup-
port of this contention Respondent points to Rea's remarks
in the nurses' lounge, while she and other,employees were
discussing the termination of the program, that the hospital
was a "G.D. place" and a "terrible place to work."
However, these comments were made in camera, so to
speak, and there is no evidence showing that Rea intended
to include them in the letter she said she would write to the
newspaper. Nor is there any evidence establishing how Rea
would have couched her letter had it actually been written,
which is not the case. In these circumstances Respondent's
reliance in suspending and discharging Rea upon its,fear of
"being disparaged by .. . Rea's letter" and upon its belief
that Rea's letter would have "work[ed] against the interests
of the hospital" does not serve to justify Rea's suspension
or dishcarge.12
Accordingly, I conclude that by suspending and dis-
charging Rea Respondent violated Section 8(a)(1) of the
Act.
ment to Rea and to make her whole for any loss of earn-
ings she may have suffered by reason of her unlawful
suspension and discharge. Any backpay found to be due to
Rea shall be computed in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
and shall include interest in the amount and manner pro-
vided in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning, of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. , -
2. The conduct engaged in by -Sheila Rea in connection
with the termination of the surgical residency program at
Respondent's hospital, including her statement of intention
to write a letter to a newspaper in that regard, fell within
the protection of Section 7 of the Act.
3. By suspending and, discharging Sheila Rea for engag-
ing in conduct referred to in Conclusion of Law 2, above,
Respondent has engaged in, and is engaging in, unfair la-
bor practices within the meaning of Section 8(a)(1) of the
Act.
4. The unfair labor practices engaged in by Respondent,
as set forth in Conclusion of Law 3, above, affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 13
V. THE,BFFECr OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices engaged in by Respondent,
occurring in connection with its operations described in
section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
of the Act by suspending - and discharging Sheila,Rea be-
cause she engaged in activity protected by. the- Act, -my
recommended order will require Respondent to cease and
desist from further violations of Section, 8 (a)(t) and to- take
such affirmative action as will effectuate the policies of the
Act.: In this connection , my recommended order will re-
quire Respondent to offer immediate and full reinstate-
i2 Cf Salt River Valley Water Users ' Association, supra at 854
The Respondent, The Reading Hospital and Medical
Center, Reading, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, suspending, taking any other discipli-
nary action against,-or in any manner affecting adversely
the hire or tenure of employment or any term or condition
of employment of, employees for engaging in any activity
protected by, or guaranteed in, Section 7 of the National
Labor Relations Act, as, amended,
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, loin, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National La-
13 In the event no exceptions are filed, as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions, and Order herein shall, as provided in Sec 102.48 of the Rules
and Regulations, be adopted by the Board and become its findings, conclu-
sions, and Order, and all objections thereto shall be deemed waived for all
purposes.
READING HOSPITAL AND MEDICAL CENTER
bor Relations Act, as amended , or to refrain from any or
all such activities , except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in con-
formity with Section 8(a)(3) of said Act.
2. Take the following affirmative action which, it is
found , will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Offer to Sheila Rea immediate and full reinstatement
to her former position , or, if such position no longer exists,
to a substantially equivalent position, without prejudice to
her seniority or other rights or privileges and make her
whole, in the manner set forth in the section of this Deci-
sion entitled "The Remedy," for any loss of earnings she
may have suffered by reason of her unlawful suspension
and discharge.
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying , all pay-
roll records, social security payment records , timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its premises in Reading , Pennsylvania, copies
of the attached notice marked "Appendix ." 14 Copies of
said notice , on forms provided by the Regional Director
for Region 4, after being duly signed by Respondent's rep-
resentative , shall be posted by Respondent immediately
upon receipt thereof , and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, including
all places where notices to employees are cutomarily post-
ed. Reasonable steps - shall be taken by Respondent to in-
sure that said notices are not altered , defaced , or covered
by any other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days, from the date of this Order, what steps
have been taken to comply herewith.
14 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
615
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge, at
which all parties had the opportunity to present evidence
and arguments, it has been decided that we have violated
the National Labor Relations Act. We have, therefore,
been ordered to post this notice and carry out its terms.
WE WILL NOT in any way interfere- with any right
given employees by the National Labor Relations Act.
WE WILL NOT fire or suspend any employee , or other-
wise discipline any employee , or take any unfavorable
action against any employee for doing any of the fol-
lowing things:
1. Taking part in any activity to protest any working
condition.
2. Taking part in any activity to get better working
conditions.
3. Objecting to, or taking part in any activity protest-
ing, the initiation or discontinuance of any program
believed to affect employees' working conditions.
4. Writing a letter to a newspaper , or saying that such
a letter would be written , to protest any working
condition , to get better working conditions,,or to
protest the initiation or discontinuance of any pro-
gram believed to affect employees' working condi-
tions.
As it has been decided that we suspended and fired
Sheila Rea because she said she would write a letter to
a newspaper protesting the discontinuance of the sur-
gical residency program which she believed would af-
fect the working conditions of operating room ` techni-
cians WE WILL immediately offer to take Sheila Rea
back to work for us as an operating -room technician.
WE WILL pay to Sheila Rea any wages she lost be-
cause we suspended and discharged her.
THE READING HOSPITAL AND MEDICAL CENTER