Lauderdale Lakes General Hospital

National Labor Relations Board - Board Decisions

Jan 24, 1977

227 N.L.R.B. 1412 (N.L.R.B. 1977)

1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida Medical Center, Inc. d/b/a Lauderdale Lakes
General Hospital and Transportation Employees
Association, affiliated with District 2, MEBA-
AMO, AFL-CIO. Cases 12-CA-6598, 12-CA-
6611, and 12-CA-6706
January 24, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On November 13, 1975, Administrative Law Judge
Michael O. Miller issued the attached Decision in this
proceeding. Thereafter, the General Counsel, the
Charging Party, and the Respondent filed exceptions
and supporting briefs, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, as
modified below, and to adopt his recommended
Order, as modified herein.
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent violated
Section 8(a)(1) of the Act by maintaining and
enforcing various no-solicitation rules which were
unduly restrictive of employees' Section 7 rights 2 and
by threatening to discharge employees who engaged
in union solicitation. We also agree with his findings
that on October 15, 1974, Dr. Maxwell Dauer,
Respondent's administrator, told employee Bridget
Kelly that she was "playing with dynamite" and
threatened to cause her arrest on unwarranted
narcotics charges and that the threats were related to
her exercise of Section 7 rights. Accordingly, since
these threats were found to constitute an attempt to
interfere with, restrain, or coerce her in the exercise of
those rights, Respondent thereby violated Section
8(a)(1) of the Act. Finally, we agree with the
Administrative Law Judge's finding that the dis-
charge of Bridget Kelly on October 25, 1974, violated
Section 8(a)(3) and (1).
Contrary to the Administrative Law Judge and our
dissenting colleague, however, we find that Respon-
dent also violated Section 8(a)(3) and (1) of the Act
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty 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 F2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
227 NLRB No. 198
by its discharge of employee Carolyn Stern on
February 5, 1975.
Carolyn Stern, together with Bridget Kelly, had
been visibly and vocally active in the union move-
ment at the hospital. She attended the first union
meeting at Kelly's house on October 5, 1974. At that
time union authorization cards were passed out and
signed. When she left this meeting, Stern took about
six cards with her, distributed them, and returned the
signed cards to Kelly.3
Several days after Stern returned the cards to Kelly,
Supervisor Dorothy Landis told Stern that her card
distribution "had attracted the attention of the
administration," that "they were unhappy with the
situation," and that she should "refrain from passing
out any more union cards at work." Furthermore,
Landis told her that she was "putting her job in
jeopardy" and "could be terminated for something
like this."
Thereafter, although Stern refrained from passing
out authorization cards at work, she continued to
discuss the Union with other employees and suggest-
ed that they call her at home for further information.
On October 18, 1974, Carolyn Stern was called into
the office of Lowell Johnson, chief technologist,
where Respondent's associate administrator, David
Farkas, spoke with her. According to the credited
testimony of Stern:
[Farkas] was visibly angry. He was trembling with
rage, and he accused me of soliciting for the
union, and I don't recall whether he said anything
about union cards or not, but he said if there were
anymore incidents of my soliciting I would be
terminated.
Stern was then shown a dictionary definition of
solicitation and questioned about her activities. Next
she was shown the no-solicitation rule contained in a
new employees' manual, issued October 11, 1974,
which she had not previously seen ; this rule, which
banned employee solicitation "of any kind . . . on
Hospital time or property without special permission
of the Hospital Administrator," was found above to
violate Section 8(a)(1) of the Act. Finally she was
asked to sign a counseling form which related the
following:
Explanation of Situation:
She talked with people while they were on duty
and while she was on duty giving them her home
2 In finding the no-solicitation rules to be in violation of the Act, we rely
on St John's Hospital and School of Nursing, Inc, 222 NLRB 1150 (1976).
3 The initial cards Stern distributed were on behalf of the Seafarers
International Union . Thereafter, MEBA replaced the Seafarers and the
activity continued on behalf of MEBA
LAUDERDALE LAKES GENERAL HOSPITAL
telephone number and telling them to call her at
home regarding union activity.
Corrective Action taken by Supervisor:
To cease this activity while on duty or be
terminated.
Stern refused to sign this form. Several times during
this interview, Farkas told Stern that she would be
discharged if there was another incident of solicita-
tion.
On December 9, David Farkas held a meeting for
employees at which he displayed a leaflet that
ridiculed Bridget Kelly's union activities and suggest-
ed that employees were better off without a union.
Stern was discharged on February 5, 1975, under
the following circumstances. On February 4, 1975,
Stern unsuccessfully attempted to draw blood from
an obese and uncooperative patient who "became
verbally abusive." On leaving his room Stern told the
patient, "You know, Mr. Goodman, if you lost about
70 pounds, all your medical treatment would be
easier." Stern immediately reported the incident to
Thelma Anthony, head nurse on the floor, and to
Dorothy Landis, Stern's supervisor. Anthony ques-
tioned the patient, his roommate, and a nurses aide
who had overheard the exchange, and submitted a
report to Dr. O'Hara, director of the laboratory. On
February 5, 1975, Dr. O'Hara instructed Landis to
investigate; after discussing the incident with the
patient, Landis wrote a memo to Dr. O'Hara recom-
mending immediate termination. Dr. O'Hara, in a
reply memo, agreed with her recommendation and
instructed her to "take the necessary steps." Landis,
in midafternoon of the same day, phoned Carolyn
Stern and told her, "Mr. Goodman reported you for
insulting him. You are terminated."
As the Administrative Law Judge points out, the
question here is whether the Respondent was motiva-
ted in this discharge by Stern's remarks to Goodman
or by her union activities. The Administrative Law
Judge was persuaded by several factors that the
discharge was lawful: the lapse of 2 months since the
Respondent had displayed union animus, the "re-
moteness" in time and relevance of evidence showing
Stern's good work performance and attitude, Supervi-
sor Landis' longstanding personal dislike for Carolyn
Stern, and the fact that Stern's remark to the patient
upset the patient.
We find these factors unpersuasive. It is clear from
the foregoing that the Respondent was hostile to
union activity in general and toward union activists
in particular. Likewise, it is clear that the Respondent
4 Although there is no evidence that Respondent was aware of Stern's
continuing union activities , in view of the testimony regarding the Landis
1413
had knowledge of Stern's union activities.4 Further-
more, Respondent openly displayed antiunion senti-
ments as late as December 9, 1974. In these circum-
stances, the lapse of time between the earlier displays
of hostility toward union activity and the discharge
"may reflect nothing more than a particular employ,
er's superior sophistication" and "is not a sufficient
basis to disregard otherwise substantial evidence of
unlawful motiviation." Stoffel Seals Corporation, 199
NLRB 1084 (1972), enfd. 480 F.2d 923 (C.A. 5, 1973).
Inasmuch as Stern had been recognized, by way of
awards, a recommendation, and a merit increase, as a
worthwhile and hardworking employee, what is
remote is any recent evidence that, prior to the
Goodman incident, Stern had been anything less than
competent and anxious to improve herself. Further-
more, Landis' dislike for Stern is certainly not
incompatible with a finding that the discharge was
motivated, at least in part, by union animus. And
while it is clearly undesirable for a hospital to have its
patients distressed by employees' remarks, consider-
ing all the circumstances here, the precipitate and
severe nature of Respondent's reaction raises serious
doubts about its motivation. Nor do the factors relied
on by the Administrative Law Judge preclude a
finding that the discharge was in violation of the Act.
In N. L. R. B. v. Ayer Lar Sanitarium, 436 F.2d 45, 49-
50 (C.A. 9, 1970), the court stated:
Certainly in the absence of other circumstances
the employer has the right to discharge its
employes . . . and the mere fact that an employee
is or was participating in union activities does not
insulate him from discharge... .
On the other hand, the cases are legion that the
existence of a justifiable ground for discharge will
not prevent such discharge from being an unfair
labor practice if partially motivated by the em-
ployee's protected activity; a business reason
cannot be used as a pretext for a discriminatory
firing.... The test is whether the business reason
or the protected union activity is the moving cause
behind the discharge. . . . In other words, would
this employee have been discharged but for his
union activity? [Citations omitted.]
As discussed above, the Respondent had displayed
hostility toward unionization and anger at Stern for
her activities on behalf of the Union. Its "investiga-
tion" of the Goodman incident was hasty and the
decision to terminate her was made without getting
Stern's side of the story. Within 30 hours of the
incident, Stern was notified that she had been
terminated. It is apparent from Respondent's one-
and Farkas confrontations , it is not unreasonable to draw the inference, as
we do, that these activities were observed by supervisory personnel.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sided investigation and haste to be rid of Stern that
union animus was at least a partial motivation in her
discharge. Accordingly, we find that the discharge
was pretextual and therefore unlawful under Section
8(a)(3) and (1) of the Act.
In view of the nature of the discrimination for
union activity which "goes to the very heart of the
Act," 5 and the unfair labor practice here found, there
exists the danger of the commission by Respondent
of other unfair labor practices proscribed by the Act.
Accordingly, we will modify the recommended Order
of the Administrative Law Judge to order that the
Respondent cease and desist from in any other
manner infringing upon the rights guaranteed em-
ployees in Section 7 of the Act.6
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 4 of
the Administrative Law Judge's Decision:
"4. By discriminatorily discharging and refusing
to reinstate Bridget Kelly and Carolyn Stern because
of their union and other protected activities, Respon-
dent has engaged in unfair labor practices in violation
of Section 8(a)(3) and (1) of the Act."
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 Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Florida Medical Center, Inc. d/b/a Lauderdale
Lakes General Hospital, Fort Lauderdale, Florida, its
officers, agents, successors, and assigns, shall take the
action set forth in the recommended Order, as so
modified:
1. Substitute the following for paragraph 1(d):
"(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist Transportation Employees
Association, affiliated with District 2, MEBA-AMO,
AFL-CIO, or Seafarers International Union, or any
other labor organization, to bargain collectively with
representatives of their own choosing, and 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."
2. Substitute the following for paragraph 2(a):
"(a) Offer to Bridget Kelly and Carolyn Stern
immediate and full reinstatement to their formerjobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges previously
enjoyed, and make them whole for any loss of
earnings they may have suffered by reason of the
discrimination against them in the manner set forth in
the section of this Decision entitled `The Remedy.' "
3. Substitute the attached notice for that recom-
mended by the Administrative Law Judge.
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part:
I agree with my colleagues that Respondent violat-
ed Section 8(a)(1) of the Act by maintaining and
enforcing certain no-solicitation rules and by threat-
ening to discharge employees if they continued
soliciting on behalf of the Union. I also agree with
their finding that Respondent violated Section 8(a)(1)
by Dr. Dauer's statement to Bridget Kelly that she
was "playing with dynamite" and his threat to cause
her arrest on unwarranted narcotics charges because
she engaged in protected concerted or union activi-
ties. Finally, I agree with their finding that Respon-
dent violated Section 8(a)(3) by discharging Kelly.
I cannot agree, however, with their conclusion that
Respondent's discharge of employee Stern also
violated Section 8(a)(3) of the Act. To the contrary, I
agree with the Administrative Law Judge's finding
that Stern was discharged for upsetting a patient by
telling him that his treatment would be easier if he
lost 70 pounds. Neither the fact that Respondent
harbored animus against the Union and its adherents,
nor the fact that Stern had been threatened with
discharge for violating an unlawfully broad no-solici-
tation rule justifies a finding that her discharge, some
2 or 3 months later, in the circumstances here was
unlawful. Clearly Stern's activities on behalf of the
Union did not immunize her from discharge for
cause. And, while Stern's discharge for upsetting a
patient might well be deemed harsh punishment, it
cannot be said on the record before us that the
discipline was based on her union activities or that
she was disparately treated because of such activities.
In these circumstances, I agree with the Administra-
tive Law Judge that the General Counsel has failed to
establish that Stern's discharge violated Section
8(a)(3) of the Act.
5 N L R B v Entwistle Manufacturing Company, 120 F.2d 532, 532-536
(C A 4,194 1)
6 N L R B v Express Publishing Company, 312 U S 426,437 (1941)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
LAUDERDALE LAKES GENERAL HOSPITAL
Labor Relations Act and has ordered us to post this
notice and to comply with what it says.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT discharge any of our employees
because they have exercised one or more of these
rights.
WE WILL NOT promulgate, maintain, or enforce
no-solicitation rules which prohibit our employees
from engaging in union or other protected con-
certed activities on nonworking time on our
property.
WE WILL NOT threaten our employees with
discharge, unwarranted arrest, or other reprisals
for violating our invalid no-solicitation rules or for
engaging in other union activities or other protect-
ed concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist Trans-
portation Employees Association, affiliated with
District 2, MEBA-AMO, AFL-CIO, or Seafarers
International Union, or any other labor organiza-
tion, to bargain collectively with representatives of
their own choosing, and 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 Bridget Kelly and Carolyn Stern
immediate and full reinstatement to their former
jobs, or, if those jobs no longer exist, to substan-
tially equivalent ones, with backpay with interest.
WE WILL revoke our invalid no-solicitation
rules.
FLORIDA MEDICAL
CENTER, INC. D/B/A
LAUDERDALE LAKES
GENERAL HOSPITAL
DECISION
STATEMENT OF THE CASE
1415
MICHAEL O . MILLER , Administrative Law Judge: Based
upon charges filed by Transportation Employees Associa-
tion, affiliated with District 2, MEBA-AMO, AFL-CIO,
herein MEBA, on December 2, 1974 (Case 12-CA-6598),
on December 12 and 19, 1974 (Case 12-CA-6611 , original
and first amended charge), and on March 18, 1975 (Case
12-CA-6706), the Regional Director for Region 12 of the
National Labor Relations Board, herein the Board, issued
the complaints, amended complaints , and appropriate
orders consolidating cases upon which this case was heard.
The hearing was held on May 21 and 22, 1975, in Fort
Lauderdale, Florida.
The consolidated complaints allege , in substance, that
Florida Medical Center, Inc. d/b/a Lauderdale Lakes
General Hospital , herein the Respondent , violated Section
8(a)(1) and (3) of the National Labor Relations Act, herein
the Act, by promulgating , threatening to enforce, and
enforcing invalid no-solicitation rules ; threatening employ-
ees with arrest and with discharge in order to discourage
union or other protected concerted activities; and discharg-
ing Bridget Kelly and Carolyn Stern because they had
engaged in union or other protected concerted activities for
the purposes of collective bargaining or mutual aid or
protection . Respondent denied the substantive allegations
of the complaints and amendments thereto.
General Counsel , Respondent, and the Charging Party
were all represented by counsel at the hearing . All parties
were afforded full opportunity to be heard , to examine and
cross-examine witnesses, to introduce oral and documenta-
ry evidence, to argue orally, and to file briefs. Respondent
submitted a brief; General Counsel chose to argue orally.
Throughout the hearing , I carefully observed the witness-
es and their demeanor . Based upon these observations, and
my consideration of the entire record in this case , including
the briefs and oral argument, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS
The complaint alleges , Respondent admits, and I find
that it is a Florida corporation engaged in the operation of a
proprietary general hospital at Lauderdale Lakes, Florida.
Annually , Respondent derives gross revenues in excess of
$250,000 from the operation of the hospital and purchases
goods and materials valued in excess of $10,000 directly
from sources located outside the State of Florida. Respon-
dent is an employer within the meaning of Section 2(2) of
the Act, engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
Respondent denied knowledge of the labor organization
status of the Health Professionals and Allied Employees
Association of the Staff Officers Association of America,
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliated with Seafarers International Union of North
America , herein the Seafarers.' The uncontradicted testi-
mony of Bridget Kelly reveals that she contacted the
Seafarers International Union in regard to organization,
and representatives of that organization came to her home,
met with employees, passed out literature and authorization
cards , solicited employee support , and told employees that
if they won a representation election they would endeavor
to negotiate a collective -bargaining agreement with Re-
spondent . Based upon the foregoing testimony , I conclude
that the Seafarers , and its subsidiary body involved herein,
is a labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Findings
Respondent is a 287-bed hospital which has been open
for patient care since September 1973. Bridget Kelly began
working for Respondent as a graduate nurse in January
1974.2
When initially hired, Kelly understood from Pauline
Gartner, director of nursing service, that she would receive
an automatic wage increase after 6 months and again after
1 year of employment. She received a raise of 20 cents per
hour when her status was upgraded from graduate to
registered nurse , but did not receive the raise she had
expected in July.
When she did not find her raise in her paychecks for July,
Kelly made inquiries but waited until September before
taking any action. In early September, Kelly saw a notice,
posted by Respondent, which stated that wage increases
would be on the basis of merit, rather than automatic. From
the posting of this notice and a conversation with Nancy
Bragdon (not identified in this record), she concluded that
she would not be receiving her automatic raise . At the end
of September, she prepared a petition addressed to Dr.
Maxwell Dauer, the chief administrative officer of the
hospital, stating:
We, the employees and staff of Lauderdale Lakes
Hospital, are writing this letter to let you know our
feelings with reference to a matter which is of vital
concern to both you and us.
When we were hired a promise was made that we
would receive a salary increase after the completion of
six months employment, and another increase following
twelve months of employment.
In a recent memo dated September 3, 1974, you
breached this promise and arbitrarily cancelled all
promised increases.
Although we understand that this policy may be fair
for all employees hired after the date of the memo, we
' MEBA, is the Charging Party herein As represented by General
Counsel , the organizations activity was initially undertaken by the Seafarers
affiliate who thereafter withdrew in favor of the Charging Party The
complaint does not allege MEBA to be a labor organization and the record,
other than indicating that organizational activity took place on behalf of
MEBA , contains no evidence in regard thereto Respondent , however,
acknowledged that both parent organizations , MEBA and the Seafarers,
were labor organizations
2 All dates herein are 1974, unless otherwise stated
3 Noting that the petition was dated September 30, 1 find that this
occurred in early October rather than, as Gartner testified, in the week of
September 23
believe that applying the memo to employees hired
prior to that date is unfair and unjustified.
We want you to know that as a result of this arbitrary
decision , morale is presently at an all time low.
We ask that you reconsider your position and honor
the promised increases to your faithful employees.
This petition, in the form of a letter, bore another
employee's signature under the complimentary close, but
Kelly's name headed the list of signers. She passed the
petition around in the hospital. In early October, after
Kelly had secured approximately 77 signatures on the
petition, she took it to Pauline Gartner, director of nursing
service.3 Kelly told Gartner that she had "gotten the
petition up because [she ] had not gotten the raise [she] was
promised," (on cross-examination she testified further that
she told Gartner that she was very unhappy that Gartner
had lied to her) and offered to let Gartner read it. Gartner
declined and Kelly told her what it contained. At this point,
according to Kelly:
[Gartner ] asked me to stop circulating the petition. She
said she couldn't give me a reason why, it had nothing
to do with her position at the hospital, but that in a year,
I was to call her and she would tell me why at that time.
Gartner then asked Kelly to use the "grievance committee"
and Kelly inquired as to what that committee was and who
comprised it. Gartner explained the procedures but could
not tell her, at that time, who participated therein. Kelly
asked if she could represent all the persons who had signed
the petition and was told that each would have to proceed
individually. Kelly told her that, as the others would not act
individually and as she could not speak for them, she would
continue with her petition. She asked Gartner if she could
pass it out in the hospital and Gartner told her that she
could do it on her own time, in the cafeteria or coffee shop,
but only if she removed her cap.4
Kelly thereupon went to the employee cafeteria and
further circulated her petition. Gartner was made aware of
this activity. She left the hospital but returned later that day
(or the next, according to Gartner) at shift change time, in
street clothes, with the petition. She stayed in the area of the
employees' timeclock and solicited employees to read and
sign it . Gartner observed Kelly. She testified:
...[B ]ridget was at the time clock in street clothes,
talking to some of the people going off duty. So I spoke
with her and I think she said hello, I guess you're mad at
me, or something of that nature, and I said no, I wasn't
mad at her, but I asked her if she would go outside the
building, that the girls were not off duty yet and it was
against hospital policy to be inside, off duty, requesting
4 Gartner's version of this meeting differed somewhat from Kelly's. She
made no mention of Kelly accusing her of breaching a promise or lying to
her, or of asking Kelly to cease her circulation of the petition . She stated that,
when Kelly told her of the petition , she "offered immediately to get the
grievance procedure that we had for her . " She neither affirmed nor
denied Kelly 's reference to representing the other signers , but did state that
Kelly said that the grievance procedure would not work I find that the more
complete version of these events, as related by Kelly, was an accurate
description thereof
LAUDERDALE LAKES GENERAL HOSPITAL
anything of this nature and would she be kind enough
to step outside, and she did so.
This activity occurred as one shift was coming on duty and
the earlier shift was leaving, but Gartner only observed
Kelly talking with those who were punching out. Gartner
testified that she considered the employees punching out to
be on duty "because we have to pay them until they punch
out." Had Kelly remained inside the premises and contin-
ued this activity, according to Gartner, she would have
violated hospital rules inasmuch as:
On all the outer exit doors of the building we have a
large red sign that states something to the effect that
there is to be no solicitation without the written
approval of administration.
This rule, as Gartner understood it, applied to employees
who were off duty and not working.
Kelly continued her solicitation outside the building
without interference. In all, she secured approximately 150
signatures in a period of 2 to 3 days. However, she never
presented her petition to Dr. Dauer. She claimed that she
attempted, on several occasions, to arrange an appointment
with Dauer, once speaking with Barbara Rosayn, director
of patient and medical staff relations (and an admitted
supervisor). Kelly testified:
She [Rosayn] said she was very unhappy about what
had happened. I told her I had the petition and wanted
to give it to Dr. Dauer. She said that they had hired me
as a graduate nurse and she thought I was very happy
there. She just made me feel very ungrateful that I had
done this to them.
Rosayn testified that she only had one conversation with
Kelly in relation to any complaints that she had. According
to Rosayn, in mid-September, Kelly:
asked me if she was going to get a merit increase after
her six-month period, and I directed her to go speak
with Mrs. Gartner, her director of nursing, at which
time Mrs. Kelly said that that wouldn't do any good
because Mrs. Gartner was a liar.
I further tried to encourage Mrs. Kelly to try to make
a private appointment and speak one to one with Mrs.
Gartner and that that was the only avenue that I felt
really should be used, since that was her immediate
supervisor.
In view of the lack of a specific denial by Rosayn as to the
conversation related by Kelly, and considering the relative
demeanor of Kelly and Rosayn, particularly noting Ro-
sayn's reference to "private appointments," and dealing
"one to one with Mrs. Gartner" as the "only avenue that
... should be used," I conclude that Kelly did inform
Rosayn of her petition and that Rosayn expressed some
dissatisfaction with the course of action chosen by Kelly. I
also conclude, noting its consistency with Kelly's own
cross-examination testimony, that Kelly told Rosayn that
5 Operative Plasterers' & Cement Masons' International Association, Local
394 (Burnham Brothers, Inc), 207 NLRB 147 (1973) My conclusion in this
regard is further bolstered by the alacrity with which his supervisors brought
1417
discussions with Gartner would be futile because "Gartner
was a liar."
Kelly also showed her petition to Phyllis Ballou, who was
Respondent's coordinator of inservice education and staff
development (an admitted supervisor). Ballou merely
glanced at it and they did not discuss it. Other supervisors
learned of the petition from their employees, as when the
telephone operator, Mary Meyers, told her supervisor that
she had signed the petition.
Dr. Dauer denied actual knowledge of Kelly's activities
vis-a-vis her petition. He testified that "These things never
come to my level." While no direct evidence of his
knowledge was adduced, I cannot credit his self-serving
denial. The circulation of the petition involved nearly a
third of the then existing hospital staff and several upper
echelon supervisors. It referred to him by name. It is highly
improbable that such activity would not have been brought
to his attention.5
During this same period of time, Kelly contacted the
Seafarers Union in New York, discussed unionization with
other employees, and invited some to her home for a
meeting with union representatives. A union meeting was
held at her home on October 5, with two union representa-
tives and about six employees present. One of those present
was Carolyn Stern, a phlebotomist. The organizational
aims of the Union were explained and union authorization
cards were passed out and signed. The record does not
reflect the extent of Kelly's union activity within the
hospital. However, Stern took about six cards, distributed
them, and returned the signed cards to Kelly. These initial
cards Stem distributed were on behalf of the Seafarers.
Thereafter, MEBA replaced the Seafarers and the activity
continued on behalf of MEBA.
A few days after Stern returned the initial group of signed
cards to Kelly, Dorothy Landis, Stern's supervisor (supervi-
sory status admitted), came to where Stem was working.
Stern testified:
She [Landis] told me [Stern] that my passing out the
union cards had attracted the attention of the adminis-
tration, and they were very unhappy with the situation,
and she said I was a very good employee and she didn't
want to lose me. So would I refrain from passing out
anymore union cards at work, and I said I would.
With her memory refreshed by a leading question, Stern
added that Landis said that if Stern "wasn't careful, that I
[Stern] was putting myself in jeopardy and I could be
terminated for something like this." Stern promised that she
would not pass out any cards at work and Landis told her,
"I don't care what you do when you are not working."
Landis testified that Stem had approached her with a union
card and that she told Stem that she was not interested in
the Union. She denied telling Stern at that time that she
should not pass out union cards or that she was putting her
job in jeopardy. I credit Stern, noting that she candidly
testified as to other matters which were potentially adverse
to her own interests.
Kelly's statement regarding his being a "Mafia director" to his attention, as
discussed infra
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, Stern ceased passing out union authorization
cards at work but continued to discuss the 'Union with other
employees, at work, as she was going about her duties. She
invited them to call her at home for more information. She
also passed out authorization cards outside the hospital.
On the evening of October 15, prior to the start of her
shift, Kelly went to the telephone switchboard to ask the
operator, Mary Meyer, to call in a food order for her night
crew. John Ralick, the maintenance engineer, was also
present. While the three of them were present, Dr. Dauer
appeared in the doorway leading from the offices into the
switchboard room, which was opposite the doorway in
which Kelly was standing. Dr. Dauer proceeded to tell
them that because of thefts he had moved materials from
the pharmacy to the doctors' lounge. He asked them to be
on the lookout for any stealing and told them that he had
an undercover agent working in the hospital. Kelly was
carrying a manila envelope containing reading materials
and cigarettes. Dr. Dauer, either verbally or by gesture,
appeared to be interested in the envelope. Kelly asked him
if he wanted to see its contents. He stated, "Im not
interested in what you have in there." He looked across the
small room at her name tag and said, "Miss Kelly, you're
playing with dynamite." He turned and walked away in the
direction from which he had appeared. Kelly called after
him. He told her that if she wanted to talk to him she should
come to his office. She followed him, asked him what he
meant by his remark, and he told her:
I can have narcotics placed in your car or in your
pockets or your purse. Denying it won't help you any
because I have the full cooperation of the Lauderdale
Lakes Police Department.
She replied that she had been working there for 10 months
and no one had ever tried anything like that. Dr. Dauer
stated, "There's always a first time and you watch your
step." As Kelly left Dr. Dauer, she met Ralick and told him,
"That son-of-a-bitch dust threatened to place narcotics in
my car."6
On Friday, October 18, Carolyn Stem was brought into
the office of Lowell Johnson, chief technologist, where
David Farkas, Respondent's associate administrator, spoke
with her. Also present was Pauline Gartner. According to
Stern:
6 The foregoing is a compilation of the credibly offered testimony of
Kelly. Meyer, and Ralick which, on virtually all essential points, corrobo-
rates one another To the extent that inconsistencies exist in such matters as
whether Dauer told them about moving the materials from the 'tarmacy
(recalled by Meyer and Rahck but not by Kelly), whether Dauer referred to
Kelly as "Miss Kelly," "Bridget," or not by her name at all, and whether
Meyer placed the order for sandwiches before or after Dauer appeared, I find
that these are minor and relatively insignificant points about which otherwise
credible witnesses will frequently disagree The conflict between Ralick's
testimony, to the effect that Kelly followed Dauer out of the switchboard
room (which is corroborated by the testimony of Kelly, which Rahck did not
hear, and Meyer, who followed him as a witness) and his preheanng
affidavit, which stated that Kelly and Dauer walked off in different
directions, is more significant However, I am constrained to believe that his
testimony is the more accurate, noting, in addition to the corroboration, that
neither Ralick nor Meyer are any longer employed by Respondent, the
record contained no evidence that they left Respondent's employ under
circumstances from which one could infer a bias against Respondent, and
thus, with little or nothing at stake in the litigation, their testimony possesses
an additional attribute of credibility Dauer's denial, on the other hand, that
[Farkas ] was visibly angry. He was trembling with rage,
and he accused me of soliciting for the union, and I
don't recall whether he said anything about union cards
or not, but he said if there were anymore incidents of
my soliciting I would be terminated.
Stern was shown a dictionary definition of solicitation and
she denied that she had been doing any of the things set
forth in the definition. She was then shown an employees'
manual which had been issued as of October 11, which she
had not previously seen and which differed from that which
she had received upon becoming employed. Stern was
referred to section C(7):
7. SOLICITATION
Employee solicitation [sic ] of any kind, the collection of
funds, group congregating or participating in activity of
other than Hospital business shall not be carved out on
Hospital time or property without special permission of
the Hospital Administrator. Hospital time is define [sic]
to mean those hours when an employee is paid to work.
EXAMPLE: An off-duty employee can only solicit anoth-
er off-duty employee.
Stern was also given a counseling form which she was told
to sign. She refused. The counseling form related the
following:
Explanation of Situation:
She talked with people while they were on duty and
while she was on duty giving them her home telephone
number and telling them to call her at home regarding
union activity.
Corrective Action taken by Supervisor:
To cease this activity (while on duty) or be terminated.
[Parenthetical phrase shown as insertion in original.]
Farkas repeated several times that she would be discharged
if there was another incident of solicitation.
Farkas' version of this conversation differed more in
emphasis than content. He stated:
he told Kelly that she was "playing with dynamite," and his explanation on
cross-examination that he only said, "We have a dangerous situation here,"
which he claimed was "interpolated" by persons taking "poetic license" as a
reference to "playing with dynamite," together with references to this
allegation as "almost getting very comical" was unpersuasive and appeared
less than fully candid I note, in this regard , that when he described the
conversation in the switchboard room on direct examination he made no
mention of having used the expression "a dangerous situation "
Similarly, I find Kelly's testimony of Dauer's threat more credible than his
absolute denial thereof. In addition to my conclusion that Kelly was the
more credible of the two, based upon my careful observation of the
demeanor of these witnesses , I also conclude that Kelly's postthreat
statement to Ralick corroborates her testimony. In so concluding, I reverse
my ruling at the hearing limiting the admissibility of this statement and find
that it was a spontaneous utterance which was the result of an exciting or
shocking outward occurrence and was made before enough time had elapsed
for Kelly to have devised anything in her own interest It was, as General
Counsel argued at the hearing, admissible as part of the resgestae Federal
Rules of Evidence § 803(2); 6 Wigmore on Evidence, §§ 1747-50, (3d ed.,
1940); 2 Jones, on Evidence, §§ 10.1-10 5, 10.17 (6th ed , 1972)
LAUDERDALE LAKES GENERAL HOSPITAL 1419
I told Carolyn that it was brought to my attention that
she was bothering people on the floors while doing her
phlebotomy work, with asking them to call her regard-
ing the union, and I told her that this was not the place
for that activity and that she should draw attention to
the personnel policies and I pointed out to her where it
stated that that was soliciting, and I wrote her up and
told her that if it would continue that we would
terminate her employment.
She said she was not soliciting and that brought out the
dictionary . . . and we looked up the word soliciting,
and Carolyn said that she . . . was not soliciting, and I
don't recall whether she said she would continue to
work for the union or not. I said this is the position of
the hospital, that the workers who work on the floor it
was work time, and you do phlebotomy work.
Farkas did not deny Stern's description of him as "visibly
angry." Johnson was not called to testify and Gartner was
not questioned about this incident. To the extent that there
are contradictions between Stern and Farkas, I credit Stern,
who, as previously noted, appeared to me to be a more
candid witness throughout.
Stern testified that prior to the confrontation of October
18, and the promulgation of the no-solicitation rule in
Respondent's employee manual, there were collections of
money for presents for laboratory employees who were
leaving or in financial straits and for blood donations for
the husband of an employee, all of which had been
conducted in the hospital on worktime. She also testified
that on December 18 Landis took up a collection during
working hours and in the hospital for a Christmas present
for Dr. O'Hara, who, as pathologist, was in charge of the
laboratory.
On the morning of October 23, as she finished her shift,
Bridget Kelly was called into a counseling session with
Diane Barnes, clinical floor supervisor, and Phyllis Ballou.
A counseling form, prescribing a 15-day probationary
period within which she would be required to improve or be
terminated, was already prepared. The probationary peri-
od, the form stated, was imposed because of her "attitude
displayed during her tour of duty:
e.g. (1) displays biased and calloused attitude toward
new personnel by prejudging their worth. (I see LPN I
on schedule can she give meds, ans. no - then what
good is she)
(2) verbalizes her criticism of other personnel in her's
and previous tours of duty during am report and in
presence of all levels of personnel. (a) above statement
made in presence of am staff. (b) when questioned
regarding mess on unit stated that it was left by
evenings like always.
(3) Does not seem to comprehend her role as the
professional nurse in a team concept. Feels abused
when does not have an LPN to assist in meds and RX's
and must do her own. Unable to delegate or perform to
charge nurse level.
Kelly read the form and protested that it was ridiculous.
She refused to sign it and asked who had made the
statements. When told, she said that they had lied. Kelly
was told that she was responsible for excessive overtime
being worked by evening shift (the shift prior to hers). She
protested that she had nothing to do with that shift and was
told that some employees from that shift had stated that she
insisted that they remain to finish their work.
Kelly testified that Ballou asked what was wrong with
her, why she had changed in the past 2 weeks (which is
consistent with Ballou's testimony that she perceived a
change in Kelly since returning from her vacation on
September 23) and asked her if it was the Union. Kelly
stated, according to her own testimony, that what was
needed to prevent occurrences such as they were going
through was "a damn good union." This was denied by
Ballou and Barnes. Kelly was referred to the Respondent's
grievance committee but protested that it would be biased
in favor of the hospital. She also claimed that they referred
her to various nurses' associations, which they denied.
According to Barnes and Ballou Kelly told them that
they were counseling her on Dauer's orders and that she
was being counseled because of the threat Dauer had made
to her the previous week. When asked what she was
referring to, she told them about the threat to place
narcotics on her person or in her car. Kelly stated that no
one was going to take her nursing license away and that, if
Dr. Dauer thought that he could, "he would have to suffer
the consequences." She then stated, "We have a Mafia
leader," and, when asked what was she referring to, she
said, "Dr. Dauer was a Mafia director."
Kelly denied referring to Dauer's threat or making the
"Mafia leader" and "Mafia director" statements. However,
notwithstanding that I have accepted as credible other
portions of Kelly's testimony, I cannot credit her in this
regard as against the testimony of Barnes and Ballou. All
three testified with credible demeanor as to this incident.
However, Kelly was admittedly distraught during the
counseling session and this could have affected both what
she said at the time and her recollection thereof. Moreover,
it would only have been from Kelly that Barnes and Ballou
would have learned of the threat by Dr. Dauer 7 and the
"Mafia director" statement would not be an illogical
outgrowth of such a threat.
The counseling session had been initiated by Barnes who,
although the clinical floor supervisor for the floor on which
Kelly worked, had little or no opportunity to personally
observe Kelly's work. Miss Neal, Kelly's immediate super-
visor during her shift was not present; neither had she
requested that such a counseling session be held or
complained about Kelly, as far as the record herein
establishes. According to Barnes, Kelly was counseled
because of observations of Kelly's performance made by
Barnes when she came to work; work left undone, com-
plaints from day personnel, and an increase of overtime on
7 It would have been improbable for Dauer to tell them of it in light of his alleged supervisor, of the threat, the record does not reflect that Miller told
denial thereof, and, while Kelly testified that she told Louise Miller, an anyone else
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the shift preceding Kelly's. Ballou stated that Kelly's
counseling was occasioned by a personality change in Kelly
in the time since Ballou 's vacation, which ended September
23. As indicated in the counseling form, Barnes testified
that she was disturbed that Kelly had, in front of new
employees, questioned the utility of an LPN-I who could
not give medications. She also expressed concern that Kelly
had complained of being understaffed. As to the overtime,
the record establishes that Kelly had no authority to assign
overtime. That authority resided in Neal, Kelly's immediate
supervisor on the third shift. The record does not reflect any
instructions or orders given to Neal regarding excessive
overtime. Neal was not present at either the counseling
session or the hearing herein.
At the conclusion of the counseling session, Barnes
prepared a four-page memorandum detailing the events of
that session. Included therein were Kelly's remarks con-
cerning Dr. Dauer. The memorandum was given to
Gartner, who had not been present and who, claiming to be
"a little distressed with the contents of it," took it to Farkas.
She pointed out Kelly's remarks.
As soon as he could, Farkas took the memorandum to
Dr. Dauer.
I [Farkas] showed it to Dr. Dauer and asked him if he
knew what the Mafia was and if he was a member of the
Mafia, and he denied it to me, and he said we just can't
have people saying this about me, and let's have Bridget
come down.
Farkas stated that he asked Dr. Dauer if he was a Mafia
member because he "wanted to know if that was a truthful
statement ." He "wanted to hear from Dr. Dauer's own
mouth that he was not." He stated that "If Bridget Kelly
had any validity to that statement . . . then there was no
point in going any further."
On direct examination, Dr. Dauer acknowledged that
Farkas had asked him "very kindly" whether he was with
the Mafia. Dr. Dauer told him, "[i]f I am with the Mafia, I
would like to know about it . . . I think if I am a member of
the Mafia and a Mafia Director, I'm sure this should be
reported to the police ...." s Dr. Dauer further stated that
Farkas told him, "We have a file on Mrs. Kelly . . . . We're
looking into the reports that we received from the supervi-
sors, but I thought you would be interested in the remarks
about your personal character."
Dr. Dauer testified that he wanted to hear directly from
Bridget about this, to determine whether she was lying or
telling the truth or whether Barnes and Ballou were lying,
and asked Farkas to bring her to his office. No other
investigation of the matter was made. On his own initiative,
he stated, Farkas prepared final checks for Kelly.
Kelly was brought to Dr. Dauer's office on October 25
just before she completed her shift and while she still had
services to perform with a patient. She was also not allowed
to complete her narcotics entries, before she was taken to
Dr. Dauer's office. Present were Dr. Dauer, Farkas, and
Rosayn. Dr. Dauer stated, "Mrs. Kelly, I have a report here
... in which you have called me a Mafia leader and a
Mafia Director . . . Is it true? . . . what is the source of
your information?" Kelly denied making the statement. Dr.
Dauer stated, "I think the words are right here. Now you
say you didn't say it . . . . You're terminated."
Farkas gave Kelly her final paycheck and Dr. Dauer took
the pin which identified her as a registered nurse employed
by Respondent. Rosayn escorted her to the patient floor to
collect her belongings and then out of the building. Because
she had not been able to complete her narcotics entries
prior to being brought to Dauer's office, she waited in the
parking lot for another nurse to come out so that she could
have someone make those entries. As she sat there, Farkas
and Rosayn told her, two or three times, to leave. She
insisted that it was important that she remain and protested
that she was not disturbing anyone. Shortly thereafter, the
police arrived. When she again stated that it was urgent that
she remain , Farkas demanded that she be arrested. The
police took her license, left on other police matters, and
arrested her when they returned. She was taken to the
police station, charged with illegal entry and trespassing,
fingerprinted, and photographed. Subsequently, those
charges were dismissed.
On or about December 9, Farkas conducted a meeting
with about 50 employeses. He stated, according to the
uncontradicted and credible testimony of Carolyn Stern,
that he had been holding such meetings all day. He said
that he "didn't really like to use strongarm methods, but he
wanted to make sure that the employees knew what they
were doing before they signed a union card." He held up a
flyer which referred to Bridget Kelly and he said that she
"was a nurse that worked in the hospital who was fired for
other reasons. After she was fired . . . we found out that
she was involved in trying to organize for a union." He told
the employees to be careful what they signed, that:
Signing a union card is like cosigning a note, and make
sure that you read the revocation clause because you
may have to go all the way to New York in person to
revoke your signature on this card. I don't know that
there's a union in Florida.
The flyer, in the format of a theater program, stated, inter
alia:
ACT I.
(Actually, we slept through this one . Bridget Kelly and
her Seafarers Union didn't get launched.)
ACT II.
SCENE 1. Seafarers Union set sail.
SCENE 2. Bridget Kelly left on shore, but rescued by
Trolley Workers.
SCENE 3. Trolley Workers ask employees to sign
"authorization" to "continue in full force and
effect until ... written revocation" is delivered to
New York.
a On cross-examination , Dr Dauer stated that Farkas did not ask him if Farkas had asked him the question in a joking manner and that he had
he was a member of the Mafia He then testified that he had paid no
attention to whether Farkas had asked him that question and recollected that
replied, "[O If course not."
LAUDERDALE LAKES GENERAL HOSPITAL 1421
Stem's union activity continued after Kelly's discharge
and even after her own, on February 5, 1975. She continued
to discuss the Union with other employees in the hospital
and, on several occasions , passed out union cards and
literature outside the hospital, in the entrance road.
On February 4, 1975, Stem went to draw blood from a
patient. She had previously performed this task with this
patient with less difficulty than might have been anticipated
from his obesity and reluctance to cooperate. However, on
this occasion she found it necessary to wake him. He awoke
disgruntled and objected to being bothered. Stem con-
vinced him that it was for his own good and he acceded to
her request. On her first attempt, she failed to draw any
blood, a not unusual occurrence with such a patient. She
walked around to his other side and made another
unsuccessful attempt. She withdrew the needle and told the
patient that she would send someone else up to try. The
patient became verbally abusive and, as Stem was leaving
the room, she told him, "You know, Mr. Goodman, if you
lost about 70 pounds, all your medical treatment would be
easier." 9 Stern told Landis, her supervisor, about the
incident (I do not credit Landis' denial of this.) Stern also
told Thelma Anthony, the head nurse on the surgical floor,
of her difficulties with the patient. Anthony spoke with
Larkin, the nurses aide who overheard the exchange and,
allegedly, with the patients in the room at the time of the
incident. She submitted a report to Dr. O'Hara, the
pathologist, through Gartner. This report, although alleged-
ly written after Anthony spoke with the patients, referred
only to what Stern and Larkin told her:
Today, Ms. Stern came to us at the desk on 5E and
stated that Mr. Goodman in 509B had told her to leave
the room, because she had been unable to get his blood.
She stated that she had told him that if he would lose 75
lbs. she might be able to find a vein. She further stated
to me that he could sit and rot and she would never go
in that room again.
A nursing assistant, Wendy Larkin, overheard the
above exchange. She told me that Ms. Stern had
repeatedly stuck Mr. Goodman and that he had
tolerated repeated sticking before asking her to leave.
She then turned to him and told him that he needed to
lose 75 lbs., and she would be able to find a vein.
The report from Anthony was given to Landis on
February 5, 1975, and Landis spoke with the patient.
According to Landis' testimony, the patient told her that
Stern had stuck him several times, unsuccessfully, and he
told her to take the needle out of his arm, get out of his
room, and get someone who could get the blood. He said
that he was upset that she had told him that if he lost 75
pounds she wouldn't have trouble drawing his blood.
Landis stated that she apologized to Goodman and told
him that she was considering discharging Stern, to which he
allegedly replied that "I had to do myjob, that was my job
to make the decision, but he didn't feel that patients should
9 The foregoing is from credited testimony of Stem The testimony of
nurses aide Larkin who overheard a portion of this incident, but did not
observe it, was not in substantial conflict No other direct evidence was
adduced.
be brought into the hospital to be treated this way." Landis
made a written report of the incident to Dr. O'Hara and
recommended that Stem be discharged. The report made
no mention of her discussion with the patient concerning
the possible discharge of Stem. The report acknowledged
that it was not rare for a technologist or phlebotomist to be
unable to obtain a blood specimen from some patients but
stated: "It is an intolerable act to directly insult and thereby
unduly further distress any patient in this hospital."
Landis stated that in recommending Stem's discharge,
she considered complaints by two clerical employees about
Stem 10 and a clerical problem which had occurred while
Stem and another phlebotomist were working, involving
the failure to chart certain procedures. As to the last
complaint, Landis was unable to state whether the failure
was Stem's or the other employee's. Both employees were
counseled at that time.
Apparently not considered by Landis in making this
recommendation were the facts that Stem had received an
award of a bond from Respondent for a suggestion she had
made in regard to equipment; had received a recommenda-
tion to Broward Community College from Dr. O'Hara, in
May 1974, which stated, inter alia, "We have found her to
be a very dependable and responsible person in performing
duties related to Phlebotomy, Lab Assistant and the
Laboratory Clerical Area. Her relationships with hospital
patients have been very good"; and, had received a merit
wage increase in December 1974.
Dr. O'Hara accepted Landis' recommendation to ter-
minate Stem. In mid-afternoon on February 5, during her
day off, Landis called Stern. She asked Stern, "You had a
problem with Sol Goodman yesterday?" Stern replied
affirmatively and Landis said, "Well, Mr. Goodman
reported you for insulting him. You are terminated. Come
in tomorrow at 10:00 o'clock and pick up your check."
When she came in, she met with Landis and the personnel
director. Landis stated again that Stem had mistreated
Goodman and that he had reported her. Stern denied
mistreating him.
B. Analysis and Conclusions
1. The no-solicitation rules and their enforcement
The record herein is less than entirely clear as to the
precise no-solicitation rules promulgated, maintained, and
enforced by Respondent at any given point in time. Thus,
Kelly was permitted to solicit signatures on her petition in
the cafeteria on her breaktime, but was prohibited from
soliciting employees who were clocking in and out, in the
timeclock area, while she was off duty and in street clothes.
She was told that "it was against hospital policy to be
inside, off duty, requesting anything of this nature." She
was shown a sign prohibiting "solicitation without the
written approval of administration." Stern was told by
Landis that she was putting her job in jeopardy by passing
out union cards at work, but could do what she wanted
when she was not working. Thereafter, Stern did not pass
10 Hearsay testimony by Landis as to these complaints admitted only as a
matter reported to management and not as probative of any alleged
problems other employees were having with Stern
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out union cards but asked employees to call her at home to
discuss the Union. This activity provoked Respondent to
call Stern in for a counseling session , wherein she was
threatened with discharge if she continued to so talk to
people while she and they were "on duty." She was shown a
newly promulgated rule which prohibited solicitation "on
Hospital time and property without special permission of
the Hospital Administrator." That rule defined hospital
time as "those hours when an employee is paid to work." It
gave as an example: "An off-duty employee can only solicit
another off-duty employee." Based upon Gartner' s testimo-
ny, Respondent considered employees to be on duty until
they punched out because Respondent had to pay them
until then.
Based upon the foregoing, I conclude that Respondent's
no-solicitation rules, both oral and written, were unduly
broad. It has long been held that a no-solicitation rule
banning protected concerted or union activity on all
company property, is presumptively invalid. Republic
Aviation Corporation v. N.LR.B., 324 U.S. 793 (1945);
N.L.R.B. v. Daylin, Inc, Discount Division, d/b/a Miller's
Discount Dept. Stores 496 F.2d 484 (C.A. 6, 1974), enfg. 198
NLRB 281 (1972). Highland Avenue Convalescent Home,
Inc., 220 NLRB 998 (1975). Gartner's statement to Kelly at
the timeclock, the rule posted upon the door and shown
Kelly, the newly adopted rule so forcibly shown Stern by
Farkas, and his statement to Stern that "this was not the
place for such activity" all constituted such a broad ban on
solicitation on Respondent's premises.
Additionally, I conclude that Landis' orders to Stern to
cease solicitations "at work," and the October 11 rule
prohibiting solicitation on "Hospital time," defined as
"those hours when an employee is paid to work" are unduly
broad restrictions on statutorily protected activity. Terms
such as "at work," "Hospital time," and "hours when an
employee is paid to work" are, I believe, more akin to
"working hours" rather than "working time," particularly
when considered in light of Gartner's definition of an off-
duty employee as one who has punched out. In regard to
the distinction between "working hours" and "working
time," the Board, in Essex International, Inc., 211 NLRB
749 (1974), stated:
In our view, there is a clear distinction to be drawn
between the terms "working hours" and "working
time." The term "working hours" connotes the period of
time from the beginning to the end of a workshift. Thus,
the use of that term in a no-solicitation or no-distribu-
tion rule is reasonably calculated to mean that employ-
ees are prohibited from engaging in any form of union
solicitation or distribution of union literature from the
time they "clock in," or begin their workshift, until they
"clock out," or end their workshift. By contrast, the
term "working time" or "work time" connotes the
period of time that is spent in the performance of actual
job duties, which would not include time alloted for
lunch and break periods. Thus, the use of that term in a
no-solicitation or no-distribution rule would clearly
11 In addition to my concluding that Dr Dauer actually knew of this
activity, I note that as a matter of law he would be charged with such
knowledge Kelly's activities were known and criticized by various members
convey the meaning to employees that they were free to
engage in solicitation or distribution during lunch and
break periods which occur during their "working
hours."
[T ]hose rules which prohibit solicitation or distribution
during "working hours," unless their impact on lunch
and breaktime is clarified, unduly restrict employees'
rights under Section 7 of the Act to engage in union
solicitation or distribution during their nonworking time.
[Emphasis in original.]
Finally, in this regard, I conclude that, even to the extent
that Landis' and Farkas' admonition and threats to
discharge Stern might be construed to be concerned solely
with her solicitations while working, they are unduly broad.
As the Board stated in Daylin, Inc., supra:
The Act establishes and protects their [the employees']
right to so engage, even during working time, so long as
there is no interference with production. Only a
substantial business justification, such as a genuine
interference with the progress of the work, justifies any
restnction on this right ... .
No such justification was offered and I will not presume
that such a justification existed, merely because Respon-
dent is a hospital. Even in a hospital employees may be
engaging in such routine matters, that conversation about
unions or any other subject would not necessarily interfere
with the rendering of service.
Moreover, while the existence of a valid no-solicitation
rule would itself supply the necessary justification for such
a prohibition, the rule herein was not valid. As noted, it
went beyond permissible limits by prohibiting solicitations
on hospital property. Additionally, as testified to by Stem,
without contradiction, Respondent's no-solicitation rules,
both before and after the promulgation of the new rule,
were disparately enforced. Solicitations for the benefit of
other employees, including for holiday gifts for supervisors,
were permitted and participated in by supervisors. Thus,
Respondent cannot rely upon its no-solicitation rules to
supply the justification for its threat to discharge Stern for
her solicitations, even though those threats arguably relate
only to worktime solicitations. Daylin, Inc., supra.
Accordingly, I find that Respondent has violated Section
8(a)(1) of the Act by maintaining and enforcing no-solicita-
tion rules which were unduly restrictive of Section 7 rights
and by threatening to discharge employees who engaged in
union solicitations.
2. The 8(a)(1) threat to Budget Kelly
As previously discussed, I have found that Dr. Dauer was
aware of Bridget Kelly's protected activity." While the
matter is less clear, I would also conclude that management
and, by imputation, Dr. Dauer were aware of Kelly's
activities on behalf of the Union. In so finding, I note the
rapidity with which Stern's union activity came to Respon-
of the supervisory hierarchy. Knowledge is imputable from them to Dr
Dauer See, a g., Montgomery Ward & Co, 115 NLRB 645,647 (1956), affd
242 F.2d 497 (C A 2, 1957)
LAUDERDALE LAKES GENERAL HOSPITAL 1423
dent's attention , which, taken together with the actions
taken toward Stern and the promulgation of a new no-
solicitation rule, indicate an awareness on the part of
management of the activities being engaged in by the
employees. Further, Kelly's other protected activities would
logically have lead Respondent to suspect that she was
involved in the union activities . I note also Farkas' speech
and Respondent's flyer of early December which, despite
Farkas' disclaimer , indicate that Respondent was aware of
each step in the organizational activity and the key
participants therein . Finally, I note the affidavit of Phyllis
Ballou , in evidence as a General Counsel's exhibit, wherein
Ballou stated:
I had heard from some of the nurses that Bridget was
passing out cards. I don 't know if the word "union" was
brought up, but they, the nurses , asked me if I had seen
the cards Bridget was passing out . In my own head, I
imagine I assumed they were talking about union cards.
Bridget never asked me to sign a card, nor did any of
the nurses.
I have further found that on October 15, Dr. Dauer told
Kelly that she was "playing with dynamite" and threatened
her with unwarranted arrest on narcotics charges. While he
made no mention of either her protected or her union
activity , the timing of this threat and the absence of
evidence that she was involved in anything else which might
be called "playing with dynamite " leads me to conclude
that the threats related to her exercise of Section 7 rights
and were an attempt to interfere with , restrain , or coerce
her in the exercise of those rights. Accordingly, I find that
by these threats Respondent has violated Section 8 (a)(1) of
the Act.
3. Bridget Kelly's discharge
Within a period of approximately I month, Kelly
engaged in protected concerted activity affecting nearly
one-third of the hospital 's staff, instituted and participated
in union activity among Respondent's employees , attracted
management's attention by her activities, and incited by
those activities Respondent to engage in several acts lawful
and unlawful , indicating both hostility toward unionization
or other concerted activities and a proclivity to violate the
National Labor Relations Act. Kelly was then discharged.
Her discharge , however , followed an incident wherein she
referred to Respondent's chief administrator in insulting,
possibly even slanderous, terms.
All of the elements of a discharge unlawful under Section
8(a)(1) and (3) of the Act being present , i.e., umon and
protected activities, knowledge , animus, and timing, what
remains is an issue of fact : Was Kelly discharged for her
activities or because of her remarks about Dr. Dauer? See
Jeffery P. Jenks, d/b/a Jenks Cartage Company, 219 NLRB
368 (1975); N.L.R.B . v. Jones Sausage Co. and James
Abattoir, 257 F.2d 878 , 882 (C .A. 4, 1958). If for her
remarks, there is a further question : In the circumstances
herein , did those remarks provide a valid basis for dis-
charge? On balance , I am persuaded that General Counsel
has sustained his burden of proving that Respondent
discharged Kelly because of her statutorily protected
activities and that her remarks were hastily seized upon as a
pretext for that discharge . In so concluding , I note that the
remarks were made while in a situation of substantial stress
yet Respondent, a hospital presumably more aware of the
nature of stress and human emotions than the average
employer , accorded no consideration to that stress. The
statements were so farfetched that no reasonable person
would have given them serious consideration and the
reactions of both Farkas and Dr . Dauer to those state-
ments, treating them as serious and real allegations of
criminal affiliations , appeared less than candid and sincere.
The statements were made "in-house" and were not
published to the public served by Respondent or to other
rank-and-file employees and thus presented minimal poten-
tiality for embarrassment or harm to Dr. Dauer or
Respondent . I note , also, that , when he called Kelly into his
office for the discharge interview , Dr. Dauer did not appear
to be interested in hearing Kelly's explanation or denial; he
was intent on discharging her without regard to what she
might say. Respondent's attitude toward Kelly was further
reflected by her treatment immediately before and after the
discharge. Attempting to deny her the opportumty to
complete the service she was performing on a patient, not
permitting her to properly record narcotics dispensed
during her shift , and causing her to be arrested when she
remained on the parking lot seeking another employee to
complete those entries displayed a haste to be rid of Kelly,
somewhat more consistent with its antiunion motivations
than with its expressed reasons for discharge. Also relevant
in establishing Respondent 's attitude toward Kelly and her
union activity prior to her discharge were Farkas ' remarks
about her, subsequent to the discharge . See Jenks Cartage
Company, 219 NLRB 368 (1975); Angwell Curtain Company,
Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7, 1951).
Moreover , I would find the discharge of Kelly to be
violative even if for the reason expressed by Respondent.
Kelly's remarks as unwise and as unsupported as they were,
were a logical outgrowth of the threat made by Dr. Dauer
and occurred in the context of a counseling session which,
although I do not find it to be independently violative of the
Act, at least appeared to Kelly to be based upon erroneous
or picayune matters . Having caused her remarks by Dr.
Dauer's threat, Respondent cannot now rely upon those
remarks as a basis for discharging her.
Accordingly, I find that Respondent violated Section
8(a)(1) and (3) of the Act by discharging Bridget Kelly on
October 25, 1974.
4. The discharge of Carolyn Stem
As in the case of Kelly, the question here is one of fact -
what really motivated Respondent , Stem's statement to
Goodman or her union activity. As motivation, at least
when unlawful , is seldom revealed directly, it must be
determined from the circumstances . In reaching my conclu-
sion that the General Counsel has failed to establish, by a
preponderance of the evidence , that Carolyn Stern was
discharged because of her union activities, I have consid-
ered and balanced the following factors.
A number of similarities exist between the discharge of
Kelly and Stern. Like Kelly, Stem was engaged in union
activity, that activity came to Respondent's attention, and
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent reacted with anger and illegal conduct. Like
Kelly, Stern was discharged for something she said. And,
like Kelly, Stern's discharge was affected without seeking
Stern's version of the events. Unlike Kelly, however, Stern's
discharge occurred well after the commencement of the
union activity, after the activity within the hospital seemed
to have passed the active stage, at a point in time separated
by over 3 months from the last unlawful activity engaged in
by Respondent (Kelly's discharge), and nearly 2 months
after Farkas' antiunion remarks in December. A further
dissimilarity, and one I find to be substantial, is that Stern's
statement was made to, and apparently distressed, a patient
rather than to a supervisor. Supervisors may be expected to
evaluate and tolerate some words they do not necessarily
like; a patient in a hospital, however, is in a more "delicate"
position and should be treated accordingly. It would not be
unreasonable for a hospital administration to view with
disfavor remarks upsetting to a patient.12 See Highland
Avenue Convalescent Home, Inc., 220 NLRB 998 (1975)
(employee Newola).
In recommending Stern's discharge, Landis, whose dis-
like for Stern antedated the union activity and was
acknowledged by Respondent, relied upon information
which reinforced her own opinion of Stern as "pushy." She
disregarded or did not consider that Dr. O'Hara had given
Stern a fine recommendation (which specifically made
reference to her good relations with patients), that she had
received an award from the hospital, and had received a
merit increase in December. As to the recommendation,
while entitled to some consideration, I consider it remote. I
note , also, that the recommendation conflicted with Stem's
conduct, at least as to this patient. The award, as Respon-
dent pointed out in its brief, was for an idea, not for work
performance or attitude toward patients. Willowbrook, Inc.,
218 NLRB 379, fn. 3 (1975). The merit increase presented a
double-edged sword. On the one hand, it was indicative of
an employee worth retaining. On the other hand, coming as
it did after Respondent acquired knowledge of Stem's
union activity and had even engaged in unlawful conduct in
regard thereto, the merit increase was some evidence that
Respondent no longer harbored animus against Stem for
her union activity.
Considering all of the above factors, I am constrained to
conclude that a preponderance of the evidence fails to
establish that Carolyn Stern was discharged because of her
union activities.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section II, above, occurring in connection with its opera-
tions set forth in section I, above, have a close, intimate,
and substantial relation to trade , traffic , and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
IV. THE REMEDY
As I have found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take the following affirmative
actions which are necessary to effectuate the policies of the
Act.
Having found that the Respondent discriminatorily
terminated Bridget Kelly, I shall recommend that the
Respondent offer her immediate and full reinstatement to
her former or substantially equivalent position without
prejudice to any seniority rights or other privileges she may
enjoy. Respondent shall make her whole for any loss of pay
she may have suffered by reason of the discrimination
against her by payment to her of a sum equal to that which
she would have received as earnings from the date of her
discharge until she is fully reinstated or receives a valid
offer of reinstatement, less any net interim earnings.
Backpay is to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest thereon at the
rate of 6 percent per annum to be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
On the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Seafarers is a labor organization within the
meaning of Section 2(5) of the Act.
3. By promulgating, maintaining, and enforcing no-
solicitation rules prohibiting union or other protected
concerted activities on nonworking time on Respondent's
property; by threatening employees with discharge for
violation of such rules; and by threatening an employee
with unwarranted arrest and other reprisals in order to
discourage union or other protected concerted activities,
Respondent has interfered with, restrained, and coerced its
employees in violation of Section 8(axl) of the Act.
4. By discriminatorily discharging and refusing to
reinstate Bridget Kelly because of her union and other
protected concerted activities, Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act.
5. Respondent has not violated the Act in any manner
not specifically found herein.
6. The unfair labor practices found herein 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:
12 In this regard , I find some inconsistency in Landis' recommendation was not likely to assist him to rest more easily . However , I note that Landis'
that Stern be terminated . Landis, herself, engaged in conduct potentially report to Dr. O'Hara did not mention that portion of her conversation with
distressing to the patient when she discussed with him her intentions the patient In approving her recommendation , he may well have been
regarding the discharge of Stern. Involving the patient in that determination unaware of that aspect of Landis ' conversation with the patient
LAUDERDALE LAKES GENERAL HOSPITAL 1425
ORDER 13
Respondent Florida Medical Center, Inc. d/b/a Lauder-
dale Lakes General Hospital, Fort Lauderdale, Florida, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees and refusing to reinstate them
in order to discourage employees from engaging in any
union or protected concerted activities.
(b) Promulgating, maintaining, or enforcing no-solicita-
tion rules which prohibit employees from engaging in union
or other protected concerted activities on nonworking time
on Respondent's property.
(c) Threatening employees with discharge, unwarranted
arrest, or other reprisals for violating an invalid no-solicita-
tion rule or for engaging in other union activities or other
protected concerted activities.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights, to self-organization, to form labor organizations, to
join or assist the Seafarers or any other labor organization,
to bargain collectively with representatives of their own
choosing, and 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.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Bridget Kelly immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
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 recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
seniority or other rights and privileges previously enjoyed,
and make her whole for any loss of earnings she may have
suffered by reason of the discrimination against her in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Revoke the no-solicitation rule promulgated by
Respondent on or about October 11, 1974, and any earlier
rules still posted or in effect, to the extent that such rules
prohibit union or other protected concerted activities on
Respondent's property on nonworking time.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records, social security payment records and reports, and
all other reports necessary to analyze the amount of
backpay due under this Order.
(d) Post at its facilities copies of the attached notice
marked "Appendix." 14 Copies of said notice, on forms
provided by the Regional Director for Region 12, after
being duly signed by Respondent's representative, shall be
posted by the Respondent 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 Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
14 In the event that the Board 's Order is enforced by a Judgment of a
Umted 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 "