The Von Solbrig Hospital, Inc.Download PDFNational Labor Relations Board - Board DecisionsMar 24, 1971189 N.L.R.B. 273 (N.L.R.B. 1971) Copy Citation THE VON SOLBRIG HOSPITAL, INC 273 The Von Solbrig Hospital , Inc. and Hospital Employ- ees Labor Program (HELP). Case 13-CA-9910 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE March 24, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND KENNEDY On December 14, 1970, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom, and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief. General Counsel filed a brief in reply to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, The Von Solbrig Hospital, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We find no such basis for disturbing the Trial Examiner's credibility findings in this case HERBERT SILBERMAN, Trial Examiner: Upon a charge filed on June 15, 1970, by Hospital Employees Labor Program (HELP), herein called the Union, a complaint dated August 14, 1970, was issued alleging that The Von Solbrig Hospital, Inc., has engaged in and is engaging in conduct constituting unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In substance, the complaint, as amended, alleges that the Respondent on June 3, 1970, unlawfully discharged Veronica Brongel because she had engaged in union activities and, by reason of said discharge and other conduct set forth in the complaint, Respondent also has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. Respondent filed answers to the complaint and its amendments generally denying that it had engaged in the alleged unfair labor practices. A hearing in these proceed- ings was held in Chicago, Illinois, on October 13, 14, and 15, 1970. Subsequent to the hearing, Respondent filed a brief which has been carefully considered. Upon the entire record in this case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation, operates a proprie- tary hospital in Chicago, Illinois. During the calendar year 1969 its gross revenues exceeded $1 million. During said period Respondent purchased and received supplies valued at $ 1,925.78 which originated outside the State of Illinois and which were shipped directly to Respondent's hospital through channels of interstate commerce and, in addition, purchased food products and other supplies valued at approximately $83,000 from business concerns located within the State of Illinois which in turn obtained some of those products and supplies from places outside the State of Illinois. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction over Respondent's hospital facility.' II THE LABOR ORGANIZATION INVOLVED General Service Employees Union Local No. 73, Building Service Employees ' International Union, AFL-CIO, and the Warehouse and Mail Order Employees Union , Local No. 743, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, acting jointly, have established Hospital Employ- ees Labor Program (HELP) for the purpose of organizing and representing hospital and other health care employees in the Chicago metropolitan area.2 The Union accepts 87 i Fairview Hospital, 174 NLRB No 192, Rosewood, Inc, 185 NLRB No 2 The most recent version of the constitution and bylaws of the Union is dated December 1, 1967 189 NLRB No. 46 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees as members and deals with employers by negotiating collective-bargaining agreements covering persons represented by the Union, by adjusting grievances, and by other related activities. Membership in the Union automatically entitles the member to membership in one of the two sponsoring organizations. The governing body of the Union is composed of delegates appointed by the sponsoring organizations. Although the Union is the creature of its sponsoring organizations it nevertheless constitutes a labor organization within the meaning of Section 2(5) of the Act.3 III. THE UNFAIR LABOR PRACTICES The Hospital is a three-story structure with only the first two stories being used for patient care There are approximately 26 beds on the first floor and a larger number on the second floor. The hospital employs on its nursing staff approximately 20 registered nurses, 2 licensed practical nurses, and about 25 or 30 nurses aides. These employees are under the immediate supervision of Sylvia Uptain, director of nurses. She in turn is directly responsible to Dr. C. R. Von Solbrig, president of Respondent, who is in administrative charge of the Hospital's operations. Although the registered nurses direct the normal activities of the aides there is no contention that they are supervisors within the meaning of the Act. The focus of these proceedings is upon the discharge of Veronica Brongel, a nurses aide. She was employed in that capacity for approximately 10 years until her discharge on June 3, 1970 During the last 4 years of her employment she worked on the 11 p.m. to 7 a.m. shift on the first floor with the same registered nurse, Denise Funchion. No other nurse or aide worked with them Both Mrs. Brongel and Mrs. Funr'_uon worked 6 nights a week and had the same night off, Friday. Thus, during the 4 years preceding Mrs. Brongel's discharge Mrs. Funchion was the only nurse who had any regular or extended opportunity to observe Mrs. Brongel 's performance of her work 4 In April 1970, Mrs. Brongel contacted Dominic Licata, who is the director of the Union, about organizing the Hospital's employees. Licata assigned the matter to Jeanne Smith, another union representative. From a list of names and addresses of employees furnished to her by Mrs. Brongel, Smith caused a letter to be mailed to the Hospital's employees inviting them to a union meeting on May 26 Only two employees appeared at the meeting. They were Brongel and a registered nurse, Vilma Kirchner. Kirchner is the charge nurse for the first floor on the morning shift, which follows Brongel's shift. At the meeting Brongel 3 The same labor organization was the charging party in Fairview Hospital, 174 NLRB No 192 In that case the organization described itself as "Hospital Employees Labor Program, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Local 73, Building Service Employees International Union, AFL-CIO, Jointly " The abbreviated version of its name used in this case does not change the character or the identity of the Union 4 Vilma Kirchner, a registered nurse who normally works on the morning shift, was the only witness called by Respondent to testify about Brongel's allegedly poor work record Significantly, however, Kirchner did not testify that she personally observed any alleged failure in duty on Brongel 's part , although on at least one occasion , when Funchion was absent , she worked with Brongel 5 Before he testified on cross-examination about his conversation with complained that newer employees were being paid more than she was being paid. Kirchner said that if this were so it was unfair and she would check into it. The next morning Kirchner relayed Brongel's complaint to Uptam, also informing Uptain that the complaint was made during the union meeting on the previous day. Kirchner testified that when she received the Union's invitation to the meeting of May 26 she openly discussed her intentions of attending the meeting and Dr. Von Solbng testified that he learned that Kirchner would be at the union meeting. Dr. Von Solbrig further testified that on the day of the meeting or the next day he approached Mrs. Kirchner in the Hospital's dining room about the subject. According to Dr. Von Solbrig, "I think I said that I understand you had a meeting. She said, `What meeting?' I said, `A union meeting.' She said , `Yes.' I said, `Who all was there9' I believe she said that Brongel was there... . Kirchner also told Dr. Von Solbrig that no one else other than Brongel was at the meeting.5 Beginning about 5:30 a.m. on June 3 Union Representa- tives Licata and Smith distributed a leaflet to the Hospital's employees as they were going to work. The leaflet stated, among other things, that the employees were receiving as much as $1 an hour less than union hospital workers, asked how long they were going to wait for the raise that had been promised them, and concluded with the statement, "if you are tired of waiting, sign the attached card and drop it in the mailbox." 6 About 7:10 that morning, Dr. Von Solbng tele- phoned Mrs. Funchion and asked if she had allowed any people into the building with literature . She replied that she had not, but that employees were bringing the literature in with them Von Solbrig instructed her to prepare a list of names of the employees who brought the literature into the building and to slip the list under his door the following morning. Later that afternoon Mrs. Brongel was informed by a telephone call to her home by the payroll clerk that she was discharged. Brongel telephoned Funchion and advised her of what had happened. Funchion promised Brongel that she would try to find out why Brongel had been discharged. Early the next morning Funchion asked Dr. Von Solbng why Brongel had been discharged According to Funchfon, "He said that Vern had attended a union meeting and that he would fire anybody who had anything to do with the union " During the same conversation Funchion told Von Solbrig that practically every employee had brought union literature into the hospital building the previous morning. Dr. Von Solbrig asked her if she knew who had slipped a Kirchner, described above, Dr Von Solbng on examination by Respondent 's counsel testified that he was not aware that Mrs Brongel had engaged in union activity of any type 6 Smith testified that the June 3 distribution was the only distribution made by the Union to the employees of Respondent Dr Von Solbrig testified that there was no distribution of union leaflets on June 3 According to Dr Von Solbng leaflets had been "passed out about a week or ten days or two weeks before that ," and during May and June there were four or five distributions of leaflets I do not credit Dr Von Solbrig in this regard His testimony was not based upon personal observations, is not corroborated, and conflicts with the testimony of Smith who I find is a credible witness Furthermore, while Von Solbng was unable to fix the date of any particular distribution, Smith , Funchion , and Brongel testified specifically that union leaflets were distributed on June 3 THE VON SOLBRIG HOSPITAL , INC. 275 leaflet under his door and Funchion told him whom she thought it was.7 Dr. Von Solbrig's testimony is to the effect that ultimately he was responsible for the decision to discharge Brongel on June 3, 1970.8 According to Dr. Von Solbrig, "I received reports three or four or five months before we let her go about things she was doing that were things we didn't like, and so I spoke to Miss Uptain and told her to talk to the girl or have someone else talk to her and correct these mistakes." Dr. Von Solbrig testified that the unfavorable reports he had received about Brongel were: that Brongel had falsely reported that she had done clini- tests when in fact she had not made such tests; 9 that Brongel on many occasions had refused to go to the second floor to assist the registered nurse, Miss Larsen, when the latter had asked for Brongel's help; and that Brongel had refused to work on any shift other than her regular shift which was a serious inconvenience to the Hospital particularly when there were unanticipated employee absences. Dr. Von Solbrig also testified that at the time he told Uptain to reprimand Brongel he directed Uptain to "look for someone to replace her; and, if she does not get better then we have to let her go." Although Dr Von Solbrig was unable to give any reason why Brongel was discharged on June 3, a Wednesday, he testified, "I had tolerated her knowing that she had been making these mistakes, making these errors, that she hadn't corrected them in a five-or-six-month time I felt she was a detriment to the hospital to keep her on." Dr. Von Solbng further testified that on the day of Brongel's discharge or on the previous day he discussed Brongel's performance with Miss Uptain in his office. They called Mrs. Kirchner tojoin them in order to ask her a few questions about Brongel's work. According to Dr. Von Solbrig, "I asked [Kirchner] if Mrs. Brongel was still giving these false readings on the clini- tests and she said `Yes, she was,' she knew of several patients that had told her that day or previously a short time before that they asked for this test to be done. They said the test wasn't done and here we had a reading already where it was supposed to have been done and we have a false reading. Then she said either one or two or three patients that had brought it to her attention that day." Dr. Von Solbrig also testified that he made no independent investigation of the facts reported to him by Kirchner. Dr Von Solbrig's explanation for Brongel's discharge is belied by the evidence. First, he testified that several 7 Dr Von Solbrig denied the incriminatory portions of Funchion's testimony I credit Funchion who impressed me as being a truthful witness who was careful to answer the questions asked her precisely and without exaggeration Dr Von Solbrig's testimony tended to be general, somewhat vague and uncertain, and wholly uncorroborated even as to matters where corroboration should have been available I find that Dr Von Solbrig was an unreliable witness 8 Dr Von Solbrig appeared to be uncertain even as to this subject He testified as follows Q Whose decision was it to finally discharge Mrs Brongel on that date, on June 3rd9 A I think it was my decision It might have been Miss Uptain I don't recall Q You don't recall9 A No, I don't We talked about it very seriously several times we should let her go 9 The clmf-test which is used for diabetic patients who are on a sliding scale, that is, who receive varying dosages of insulin, is performed by months before Brongel's discharge he instructed Uptain to reprimand Brongel. This was never done. Brongel's uncontradicted testimony is that during the last 6 months of her employment no one criticized her work performance. Furthermore, although Dr. Von Solbng testified that there was dissatisfaction with Brongel's work, no inquiry was made of Funchion, who by far had the best opportunity to observe Brongel, about Brongel's performance. Funchion's opinion given to Dr. Von Solbrig on the day after Brongel was discharged was that Brongel was "a good aide and she liked her and she would like to keep her on." Additionally, it is difficult to believe Dr. Von Solbrig's testimony that he received advice that Brongel had made false clini-test reports, which could have resulted in a patient's death, and nothing more affirmative was done by him than to tell Uptain to reprimand Brongel. Second, Dr. Von Solbrig testified to a meeting with Kirchner and Uptain on the day or on the day before Brongel's discharge at which time Kirchner informed him that Brongel was "still giving these false readings on the clini-tests." Kirchner denied attending any such meeting. Uptain was not called upon to corroborate Dr. Von Solbng's testimony. Third, the only evidence offered by Respondent to prove Brongel's alleged derelictions in the performance of her duties was through the testimony of Kirchner. It is unnecessary to summarize Kirchner's testimony in this regard. Kirchner acknowl- edged that she had no firsthand knowledge of Brongel's claimed deficiencies and the evidence shows that Kirchner was seriously mistaken about some of Brongel's alleged shortcomings, particularly in regard to the cline-tests. There is no convincing evidence that Brongel was guilty of any of the specific faults detailed by Dr. Von Solbrig.10 Finally, despite Dr. Von Solbrig's testimony that he had instructed Uptain to hire a replacement in anticipation of Brongel's discharge, there is no evidence that any such replacement was hired either before Brongel was discharged or soon thereafter. I find that Respondent had no valid cause for discharging Brongel on June 3, 1970. On the other hand, Dr. Von Solbrig knew that Brongel was the only employee who had attended the union meeting on May 26, other than Kirchner who seems to enjoy Respondent's special confidence.ii In these circumstances, Brongel's precipitous discharge with no forewarning, in the middle of a pay period despite 10 years of continuous employment, shortly after Respondent learned that Brongel had become dipping a chemically treated paper into a sample of the patient's urine The paper changes color and by comparing the color with colors on a punted chart a determination is made as to the dosage of insulin for the patient Dr Von Solbng testified that a failure to give a patient the proper dose of insulin "could mean the life of a patient " However, only the registered nurse on duty, not the aide, records the results of the chni-tests on the patients' charts and administers the insulin injections 10 Sometime before her discharge Uptafn spoke with Brongel about working with Miss Larsen on a rotating basis Brongel then told Uptain that she would rather quit than do that Uptain assured Brongel that she would not be required to work on a regular shift with Larsen Brongel's attitude in regard to working with Larsen, in these circumstances, would not appear to have prompted a hasty decision to discharge her ii Kirchner testified that prior to Easter 1970, she assisted Uptain in making an evaluation of about 20 employees Furthermore, other than D Von Solbng, she was the only witness called by Respondent to testify in this proceeding 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interested in promoting the Union, and on the very day that the Union engaged in its first distribution of handbills at the Hospital, leads to the conclusion that Brongel was discharged for her union activities. This conclusion is reinforced by Dr. Von Solbrig's statement to Funchion that he terminated Brongel because she had attended a union meeting and that he would fire anybody who had anything to do with the Union. I further find that by discharging Veronica Brongel on June 3, 1970, Respondent violated Section 8(a)(3) of the Act and thereby also interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 in violation of Section 8(a)(1) of the Act. Dr. Von Solbrig's statement to Mrs. Funchion on June 4 that he discharged Brongel because she had attended a union meeting and his threat that he would fire anybody who had anything to do with the Union are further violations of Section 8(a)(1) of the Act. Also, in the circumstances described above, Respondent engaged in unlawful interrogation by Dr. Von Solbng's instruction to Funchion on June 3 to prepare a list of employees who brought union literature into the Hospital and his inquiry of her the next day as to who had slipped a union leaflet under his door and his questioning Kirchner regarding employee attendance at the union meeting of May 26. percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By discriminatorily discharging Veronica Brongel on June 3, 1970, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 2. By threatening that employees will be discharged for attending union meetings or for having anything to do with the Union and by coercively questioning employees about their or other employees union activities , Respondent has engaged in and is engaging in further unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the 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: IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully discharged Veronica Brongel or. June 3, 1970, I shall recommend that the Respondent offer her immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or to other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to that which she normally would have earned from the aforesaid date of her discharge to the date of the Respondent's offer of reinstatement less her net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 ORDER 12 The Von Solbng Hospital , Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Hospital Employees Labor Program (HELP), or any other labor organization, by discharging or by otherwise discriminating in regard to the hire, tenure of employment, or other terms and conditions of employment of any of its employees. (b) Coercively interrogating its employees regarding their or other employees union activities. (c) Threatening employees with discharge or other reprisals because of attendance at union meetings or because of other union activities. (d) In any , other manner interfering with , restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Offer Veronica Brongel immediate and full reinstate- ment to her former position or, if that position no longer exists , to a substantially equivalent position , without prejudice to her seniority and other rights and privileges and make her whole for any loss of earnings she may have suffered by reason of the unlawful discrimination against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and , upon request , make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports , and other records relevant to 12 In the event no exceptions are filed as provided by Section 102.46 of shall , as provided in Section 102 48 of the Rules and Regulations, be the Rules and Regulations of the National Labor Relations Board , the adopted by the Board and become its findings, conclusions, and order, and findings , conclusions, recommendations , and recommended Order herein all objections thereto shall be deemed waived for all purposes THE VON SOLBRIG HOSPITAL , INC. 277 its determination of the amount of backpay due to Veronica Brongel. (c) Notify Veronica Brongel if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (d) Post at its Hospital in Chicago , Illinois, copies of the attached notice marked "Appendix ." 13 Copies of said notice , on forms provided by the Regional Director for Region 13, after being duly signed by its authorized representative , shall be posted by it immediately upon receipt thereof , and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e)Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.14 13 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 14 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read "Notify said Regional Director , in writing , within 20 days from the date of this Order , what steps Respondent has taken to comply herewith " WE WILL NOT discourage membership in Hospital Employees Labor Program (HELP), or any other labor organization , by discharging or by otherwise discrimi- nating against any of our employees in regard to their hire, tenure of employment , or any other term or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist Hospital Employees Labor Program (HELP), or any other labor organization , to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Veronica Brongel reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges and we will make her whole for any loss of earnings she may have suffered by reason of our unlawful discrimination against her. WE WILL notify Veronica Brongel if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with discharge or other reprisals for attending union meetings or engaging in other union activities. WE WILL NOT question our employees about their union membership , or about their union sympathies or their union activities or about the union membership, sympathies , or activities of other employees. Dated By THE VON SOLBRIG HOSPITAL, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice, or compliance with its provisions may be directed to the Board 's Office, 881 Everett McKinley Dirksen Senate Building , 219 South Dearborn Street, Chicago , Illinois 60604, Telephone 312-353-7572. Copy with citationCopy as parenthetical citation