Parker Hill Medical CenterDownload PDFNational Labor Relations Board - Board DecisionsJan 21, 1977227 N.L.R.B. 1289 (N.L.R.B. 1977) Copy Citation PARKER HILL MEDICAL CENTER The Massachusetts Women 's Hospital d/b/a Parker Hill Medical Center and District 1199, Mass., National Union of Hospital and Health Care Employees, RWDSU/AFL-CIO . Case 1-CA- 11298 January 21, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On September 8, 1976, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 and to adopt his recommended Order. 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 and hereby orders that the Respondent, The Massachu- setts Women's Hospital d/b/a Parker Hill Medical Center, Boston, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' 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 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his findings. We note that Dove testified that , in his conversation with Administrator Sabbag on December 11, 1975, Sabbag told Dove that he felt that Dove's support of Jules was doing a favor for the hospital (rather than for Jules, as reported in the Administrative Law Judge 's Decision) Our correction of the Decision does not detract from our affirmance of the Administrative Law Judge's findings respecting Dove's discriminatory discharge In rejecting Respondent 's economic defense , we do not rely on the Administrative Law Judge's statement as to the operating deficits in other hospitals Member Walther joins in affirming the Administrative Law Judge's Decision , insofar as it holds that Respondent discnminatonly discharged employee Dove for engaging in concerted activity He finds it unnecessary to decide whether Respondent also discharged Dove for his union activity 227 NLRB No. 187 DECISION STATEMENT OF THE CASE 1289 JULIUS COHN, Administrative Law Judge: This case was heard at Boston, Massachusetts, on April 26 and 27, 1976. Upon a charge filed December 17 and served December 18, 1975, and an amended charge filed and served on January 28, 1976, the Regional Director for Region 1 issued the complaint in this proceeding on January 29, 1976, alleging that the Massachusetts Women's Hospital d/b/a Parker Hill Medical Center, herein called the Respondent, violated Section 8(a)(1) and (3) of the Act by laying off and refusing to reinstate an employee because he had engaged in protected concerted activities and because he joined and assisted District 1199, Mass., National Union of Hospital and Health Care Employees, RWDSU/AFL-CIO, herein called the Union. Respondent filed an answer denying the commission of unfair labor practices. Issues The issues discussed herein are: 1. Whether Respondent laid off and refused to recall John Dove, an employee, because Dove assisted another employee in filing a complaint with the Massachusetts Commission Against Discrimination (MCAD) and submit- ted an affidavit in support of that complaint. 2. Whether Respondent laid off and refused to reinstate Dove because he joined and assisted the Union for purposes of collective bargaining. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. The General Counsel and Respondent submitted briefs which have been carefully considered. On the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a corporation of the Commonwealth of Massachusetts, is a nonprofit hospital located in Boston, Massachusetts. Respondent's gross annual revenue from the hospital and medical and related services it renders exceeds the sum of $250,000. In addition Respondent annually purchases goods and materials valued in excess of $50,000 from suppliers within the Commonwealth of Massachusetts who in turn received such goods directly from points located outside the Commonwealth. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 1290 III. THE ALLEGED UNFAIR LABOR PRACTICES DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Faces Respondent operates a nonprofit hospital which for the past 2 years has had a 120-bed capacity. The hospital is equipped to provide a full range of medical and surgical services, excluding obstetrics and pediatrics. Respondent employs approximately 190 employees including part-tim- ers, a nursing staff, clerical employees, housekeeping, maintenance, and finance employees, and laboratory and X-ray technicians. The maintenance department involved herein is under the overall direction of Carl Frutkoff, the hospital engineer. During 1975, the maintenance depart- ment consisted of, in addition to Frutkoff, Foreman Gerald Casey, two employees on the day shift, and three other employees who divided the afternoon and night shifts among them. As to the latter, one employee covered each shift during the afternoon and evening except on Thursday when two employees manned the afternoon shift. The department performed general maintenance work such as carpentry, painting, monitoring the boilers, and preventive maintenance work on all of the equipment. From time to time the employees in the department were also involved in what was called general projects such as construction of new rooms, remodeling, and the like. John Dove had been employed in the maintenance department from November 1974 until his layoff on December 11, 1975. He was a full-time employee on the day shift along with Edney Jules under the direction of Foreman Casey. Early in 1975, Jules decided to file a racial discrimination charge against Respondent at MCAD. Dove accompanied Jules to MCAD and assisted him in filing his charges, which alleged that Casey had discriminated against Jules, for racial reasons, with respect to his conditions of employment. In addition, Dove submitted an affidavit to MCAD in support of Jules' charge, reciting examples of Casey's prejudice towards minorities. Appar- ently this charge was not investigated by MCAD until the summer of 1975 and was disposed of early in December when Respondent received a letter advising it of the dismissal of the complaint. In the spring of 1975, the Union commenced organizing at the New England Baptist Hospital located adjacent to Respondent. At that time Dove and other employees had the opportunity to speak with Alneta Bond, the organizer for the Union. Thereafter others became interested in the Union and discussions followed until October when a meeting was called with a representative of the Union. Dove made up notices for that meeting and passed some of them out to other employees inviting them to attend a meeting at the nearby VFW hall to meet the union representative. He conducted this activity when he saw people during the breaks and lunchtime and also before and after work. The meeting was held on or about October 15 and was attended by approximately eight employees. At that time he and several others signed cards for the Union. After that there were meetings almost every week, most of which he attended. Dove continued to talk to employees and tried to get them to sign authorization cards. He did this during breaks or at lunch or would call them after work and continued in this manner from mid-October until he v as laid off. Dove had also been designated with four other employees as the organizational committee for the Union. Employees generally ate lunch in the cafeteria maintained by Respondent which was also frequented by supervisors. Dove related that on one occasion two employees of the New England Baptist Hospital who were involved in the organizational campaign at that institution came to lunch in the cafeteria of Respondent one day with Dove and others and became involved in a loud discussion concern- ing the Union. Shortly thereafter Respondent posted a notice on the door of the cafeteria which prohibited outsiders from eating there. All of Respondent's witnesses , of whom there were four, denied knowledge of Dove's activities on behalf of the Union, in almost identical fashion. They denied having any direct knowledge of his involvement or that of any other employee. However, all admitted being aware of a leaflet distribution in front of the hospital during the early summer of 1975, but that is all. None of them attempted, according to their testimony, to find out what the distribution was about or to obtain any of the literature or to endeavor to learn about its consequence. As to Dove's activities in submitting an affidavit in support of Jules' complaint, Respondent 's managers , including Frutkoff, Casey, and Executive Director George J. Sabbag, were aware of this since Respondent was so informed by MCAD during the course of its investigation in the summer of 1975. On December 2, 1975, Respondent was advised by MCAD of its dismissal of the charge of discrimination filed by Jules. On December 9, Frutkoff called a meeting of the day shift employees consisting of Dove, Jules, and Foreman Casey. According to Dove, Frutkoff said that there was animosity in the department resulting from the complaint that Jules had filed against Casey. Frutkoff also noted that Respondent had long been aware that Dove had made a statement in support of that complaint. He went on to say that the antagonism could not continue and if they could not get rid of it they would get rid of the antagonists. He stated that all the trouble was a reflection on him, and the administrator was considering action but Frutkoff had succeeded in holding off the administrator for a few days in order to attempt to clear things up. Frutkoff said he hoped that bygones could be bygones. When he asked if the employees wanted to get anything off their chest, Jules raised certain things which were disturbing him concerning treatment of him by Casey, and Dove, in turn, mentioned several things about Casey writing letters to the administra- tion or their personnel files. They also brought up the evaluations of Dove and Jules by Frutkoff which stated that the quality and quantity of their work was good and yet Casey, in his letters and statements, maintained that their work was not good. Finally, Frutkoff said that the meeting had not helped and the problems appeared to be continuing . Dove asked Frutkoff for a chance to talk to the administrator because of the letters Casey had written him which he, Dove, had not seen . He wanted to talk to Sabbag before any action was taken . Although Frutkoff testified at two points in the hearing, he did not substantially contra- dict the testimony of Dove concerning the December 9 meeting except to state that he did not recall using the word PARKER HILL MEDICAL CENTER 1291 "antagonism" but rather believed that he referred to "dissension." During the morning of December II Dove met Frutkoff and, after some discussion about tickets to the Christmas party, Dove asked if he had arranged a meeting with Sabbag. Frutkoff said he would look into it He returned in a half hour, told Dove to see him in his office, and then said he had to let him go. Frutkoff said he did not have any choice as he had to get rid of somebody in the department and Jules had been there longer. Dove testified that he asked Frutkoff about his son, Ben. Frutkoff admitted that his son had not been in the department as long as Dove but he had thought that Dove did not want his son's job.' Frutkoff then suggested that Dove discuss the matter with Mrs. Langevin, a personnel director. Dove did that and asked about a job he had seen on the board for housekeep- ing but was told that this was a job that had already been filled. He asked Langevin why he had been let go instead of Ben Frutkoff and she replied that it was because Ben had been in the hospital longer than he. Later that day Dove met with Sabbag and Langevin and again asked why he was being let go instead of Ben. Sabbag stated that he did not have to follow seniority if he did not wish to and, besides, Ben had been in the hospital longer than Dove. When Dove suggested that he was being let go because of his support for Jules, Sabbag said that actually they had known about it a long time ago, but he felt that Dove was doing Jules a favor because Jules was so shy. Sabbag also told him that Dove was to go immediately and would receive 2 weeks' pay in lieu of notice. Dove asked why they were giving him the pay instead of notice when he had been told there was a need to economize. Sabbag replied that employees under notice cause a morale problem. Sabbag testified that the layoff of Dove resulted from economic causes. Since early in 1975 it was apparent to him that it was essential for the hospital to practice economy in all areas. Thus, meetings of department heads were con- du,;ted throughout the year at which they were constantly instructed to conserve supplies, energy, and expenses. With respect to personnel, a policy was instituted to encourage employees to take voluntary leave without pay when feasible. In addition attrition was to be used as a method of cutting down positions. Nevertheless, the operation showed losses in most months of 1975 so that by the close of the fiscal year ending September 30, 1975, the deficit for that period was over $29,000 as against a profit of more than $46,000 in the preceding year. Sabbag said that he finally made the decision to reduce the maintenance department by one person because by December there was not enough work for the people there and he directed Frutkoff to let one person go from the day shift. Frutkoff decided that that person should be Dove and Sabbag agreed stating that Dove was the last man hired. In this connection it is noted that while Dove had the least amount of seniority, hospital- wide, of the employees in the maintenance department, he had worked in that department longer than Ben Frutkoff. The latter had been in the hospital a little longer as he had started in a summer job in the housekeeping department before Dove was employed. At the time of the layoff Respondent was nearing the completion of a special project involving the reconstruction of the X-ray room. Dove and other maintenance employees had been devoting a substantial portion of their time working on this special project. On December 11, the day of his layoff, Dove was engaged in strapping the walls of the new X-ray room and had completed one of the four walls when he was laid off. Respondent states that the work remaining in connection with this project was not very great and that certain electrical work had to be performed by licensed electricians employed by an outside contractor. Witnesses for Respondent testified at great length to the fact that Dove had been an unsatisfactory employee. Indeed on several occasions, both in writing and orally, Foreman Casey had recommended to Frutkoff that Dove be discharged. Each time Frutkoff refused to accede to this request. Casey maintained that Dove was a very poor employee, he was insubordinate and had "attitudinal" problems. He questioned assignments and the methods by which they were to be done. He constantly complained about cleaning boilers contending that it was too dirty a job and should be performed by two men rather than one. According to Casey, new equipment purchased by Respon- dent made the boiler job a one-man operation which could be performed by someone without getting dirty. Finally, Dove was accused of unauthorized use of the telephones. On June 12 Casey reported to Frutkoff in writing that he had sent Dove home for refusing to do assigned work. Again on June 17 Casey wrote to Frutkoff telling him that Dove had refused an assignment to clean a steam generator and he therefore recommended his immediate dismissal. On October 24 Casey informed Frutkoff by letter that he had been accosted by Dove who not only treated him discourte- ously but also berated him for having written a letter regarding Jules. Casey said that he had felt threatened by Dove and again requested his discharge. None of these recommendations for the termination of Dove were fol- lowed by Frutkoff. On October 28 Frutkoff rated Dove as "good" in all categories, noting, however, that he had refused to do certain projects claiming that correct safety equipment or additional personnel were required. Frutkoff also remarked that Dove had a strained relationship with the foreman because of the latter's written reports. But Frutkoff testified that this was not unique since almost all the employees in the maintenance department, including his son, Ben, complained about Casey who, it appears, was a tough foreman who rode his employees very hard.2 Frutkoff himself had given Dove two written warnings. On June 12 he warned Dove about his refusal to clean a steam generator on the ground that it was a two-man job and was very dirty. Frutkoff pointed out that the hospital had purchased new equipment in order to cut manpower and make the job a cleaner operation. Thereafter, on October 16, Frutkoff again warned Dove in writing with i During the summer Frutkoff had been considering letting his son, Ben, days on the third shift. Dove replied that he would think it over and the next go because of talk in the hospital concerning nepotism At that time Frutkoff day he told Frutkoff that he preferred not to work that shift The matter was asked Dove whether he would work Ben's shifts Ben was on the swing shift dropped and Ben was not laid off which consisted of working 3 days on the second or afternoon shift and 2 2 Foreman Casey is no longer employed by Respondent 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to the use of telephones in patients' rooms for personal business. Earlier in the year Frutkoff spoke to Dove about telephones, indicating that this was a practice frowned upon by Respondent but at the same time also noting that it was not a major offense. As to the October warning, Frutkoff stated that he, himself, had observed Dove on the telephone and said that he felt let down because Dove had not heeded his prior request concerning the use of telephones. Frutkoff testified that he did not discuss with Dove, when he was laid off, the possibility of his working on another shift because he had received Dove's reaction to this before. In any case , he said that his son had more hospital seniority than Dove. Finally, Frutkoff, as did all of Respondent's witnesses, asserted that he did not know whether union organization was going on, nor was he made aware of it by anyone else. Nor did Dove's assistance to Jules at MCAD play any part in the decision to lay him off. B. Discussion and Analysis Clearly, Dove was engaged in activity protected by the Act. Early in 1975 he accompanied Jules to MCAD where the latter lodged a complaint of racial discrimination against Respondent, and more particularly with respect to the treatment of Jules by Foreman Casey. Not only did Dove go along with Jules and assist him at MCAD, but, in addition, he submitted an affidavit on behalf of Jules to MCAD. The Board has found that employees who visit a state commission for the purposes of filing charges of discrimination against their employer are engaged in concerted activities protected by Section 8(a)(1) of the Act.3 It is equally clear that Dove, during 1975, was engaged in union activities. In that regard he met with union organiz- ers, attended meetings, and distributed notices of meetings and authorization cards. I find that Dove engaged m protected concerted activity when he visited MCAD, assisted Jules, and submitted a affidavit on his behalf; and further that he engaged in union activity by reason of his participation in the campaign of the Union to organize employees of Respondent. Respondent admits it was aware, since mid-summer of 1975, that Dove had supported Jules in connection with his MCAD complaint. However, it is contended by Respon- dent that it had no knowledge of the union activities of Dove or, for that matter, of any other employees. Respon- dent maintains that Dove's layoff was not due to these reasons but rather was caused by economic conditions and his selection was based upon seniority. While concededly there is no direct knowledge by Respondent of Dove's union activities, knowledge of such activity may be shown by circumstantial as well as direct evidence.4 Any circum- stances which make it logical to infer that Respondent knew about the protected activities must be considered. In a small plant or, as in this case, a hospital, where the supervision has close contact with the employees and the concerted activities are carried out in an open manner, an inference is warranted that the employer does obtain knowledge.5 There are a number of factors which give rise to the inference that Respondent possessed knowledge of the union activities of Dove. All the witnesses of Respondent, from Foreman Casey to the director of the hospital, Sabbag, testified uniformly to the effect that they were aware of a union distributing literature outside the hospital. All professed indifference to this occurrence and averred they took no steps to ascertain what was going on nor were they interested in the literature distributed and what it contained. Both the uniform nature of the testimony in this area, as well as the supposed complete lack of interest in the subject, strains credulity. As noted above, Dove and other employees often discussed the Union in the cafeteria, a small room used by both employees and supervisors. On one occasion, two visiting employees from New England Baptist Hospital, adjacent to Respondent and also a target of a union organizational campaign, engaged in loud discussions concerning a union. Significantly, a day or two later, Respondent posted a notice prohibiting outside employees from eating in its cafeteria. In another instance, Dove received on October 16 a second written warning with a reminder that further misconduct would result in his termination. The warning concerned the use of telephones in patients' rooms, a matter heretofore considered as relatively unimportant. The fact that this warning was issued the day after the union meeting may have some significance in this context. Finally, both Frutkoff and Casey pinpointed Dove as an employee who constantly complained, resisted orders, suggested changes in working conditions and directions, and, generally, as one who had an "attitudinal" problem. It is clear from their testimony that they would most certainly have viewed Dove as the most likely employee to have engaged in union activity.6 Lastly, but often considered a factor in these matters was the presence of Ben Frutkoff, the son of the head of the maintenance department who indeed was mentioned by his father as one of the employees who complained about Casey's treatment. If Ben was also a complainer, it is more than conceivable that he discussed the presence of the Union, and activity in connection therewith, with his father. On the basis of all the above circumstances I conclude the evidence is sufficient to infer that Respondent's administra- tors and supervisors were aware of the union activity and Dove's role therein. Having determined that Dove had engaged in concerted protected activity and union activity of which the Respon- dent was aware, the issue is then whether he was laid off because of it. Respondent relies primarily on its so-called economic defense to the effect that the hospital "has a continuing and increasing need to economize and control costs." It implemented this policy at meetings of depart- ment heads where the need to economize by cutting costs of materials, supplies, energy, and personnel were constantly emphasized. With respect to personnel, the program adopted was twofold. Employees were encouraged to take 3 Advance Carbon Products, Inc, 198 NLRB 741 (1972) matters concerning working conditions , to be protected activity. There is + Famet, Inc, 202 NLRB 409 (1973) evidence that many employees voiced complaints , particularly with reference 5 Long Island Airport Limousine Service Corp, 468 F 2d 292 (C A 2, to their treatment at the hands of Foreman Casey, but there is no evidence 1972). Wiese Plow Welding Co, Inc, 123 NLRB 616 (1959 ) that these complaints were made on a concerted basis rather than individual- 6 1 have not found Dove's constant complaining , despite its roots in ly PARKER HILL MEDICAL CENTER leave without pay when their absences did not adversely affect patient care and operations. The other method was to initiate a policy of attrition so that employees who left were not replaced unless absolutely required. Thus, during the year two employees departed from the maintenance depart- ment and only one was replaced. There is no evidence of any change in Respondent's policies affecting personnel until December 11, 1975, when Administrator Sabbag decided that the maintenance department was overstaffed by one man on the day shift, and directed Frutkoff to let one employee go. In the circumstances, I do not find Respondent's economic argument to be persuasive. Re- spondent urges that the situation had become urgent and critical by December 11, but there is nothing to indicate the particular significance of that date. It is clear that Respon- dent was aware since the beginning of 1975 that economy was essential and it so urged its department heads during the many meetings held that year. The fiscal year ended September 30 and the profit and loss statement submitted by its auditors showed a deficit of $29,000 against a profit of $46,000 in the fiscal year ending September 30, 1974. Sabbag testified that he was aware of this loss long before December as he was kept posted with the information by his comptroller and the monthly figures from the beginning of the year indicated a deficit would ensue from the 1975 operations. It is interesting to note that even in the profitable year ending September 1974, the figures showed a loss from hospital operations; the profit resulted from nonoperating revenue which exceeded the operating loss by $46,000. In fiscal 1975, however, the nonoperating revenue was more than $25,000 less than that in fiscal 1974. In 1975, all items on the profit and loss statement, including gross revenue from services to patients and operating expenses, rose from the prior year except the nonoperating revenue, which fell. If that item had only equalled that of 1974, the bottom line deficit for 1975 would have been minimal. In this context, it may be observed that operating deficits in nonprofit hospitals are more the rule than the exception. Despite the austerity program instituted early in 1975 and the policy of attrition adopted with respect to personnel, Respondent actually replaced one of two employees who left, an indication that at this point the maintenance department had been reduced to the minimum required for effective 24-hour coverage and performance of its duties. In mid-year when Frutkoff was thinking of laying off his own son, it was not for economic reasons but rather to offset the unpleasant rumors of nepotism. Although the economic situation was known since early in the year, Frutkoff stated that he had never laid off any employee for economic reasons nor did any of the other administrators testify that this was done in other departments. Sabbag and Frutkoff testified that the special project involving the rebuilding of the X-ray rooms was nearing completion by December 11. However, at that time Dove was working in the X-ray room strapping walls and he had completed only one of the four walls in the room. No explanation was offered for the sudden urgency requiring Dove to be laid off in the middle of this work. The testimony reveals that special projects such as these and others occupied perhaps 50 percent of the time of the maintenance department employees, the bal- 1293 ance being spent in responding to calls for work of an immediate or emergency nature. Assuming that there was indeed an economic necessity and urgency for the layoff of Dove on December 11, the question arises as to his selection as the employee to be terminated. Sabbag himself stated that he considered Dove to be the "last man hired" although he also said that he left it to Frutkoff to make the ultimate decision as to who should leave. It is undisputed that Dove had the least hospital seniority of the employees in the maintenance department although he had seniority in that department over Ben Frutkoff. Respondent's contention with regard to seniority falls short of its mark. It is clear that the hospital had no structured system of seniority. Indeed, the personnel director, Langevin, testified that she knew of no personnel decision that had been made on the basis of semority. Obviously, the length of time an employee had worked was considered as a factor but there is no indication that seniority had ever been determinative. In any case it is difficult to perceive how hospital semority rather than departmental seniority could govern in a situation where there was no interchange nor could there be any inter- change among the various departments of the hospital. Since the seniority issue, if any, lay between Dove and Ben Frutkoff, the senior Frutkoff was asked why he did not offer Dove a position on the second shift in place of his son Ben, whom he earlier was considering for layoff because of the nepotism issue . The shifting nature of Respondent's defense is revealed by the fact that Frutkoff even sought to answer this question, in view of the contention that the decision was based on Dove's lesser hospital seniority. Yet Frutkoff replied that he felt no need to ask this of Dove because he already had the answer from the previous summer when Dove told him he would rather not work the second or swing shift. Such response is evasive, as Frutkoff admits Dove was not offered the opportunity to decide between working the swing shift and not working at all. This was quite different from the previous occasion when he was merely asked whether he would be interested in working such a shift, and his job was not at stake. Respondent's seniority argument is not at all persuasive. I discount the testimony alleging Dove to be a poor employee in that his performance was bad, he refused to take orders, and he engaged in unauthorized use of telephones for personal business. These matters all oc- curred long before the layoff, and Foreman Casey had often recommended that Dove be discharged only to be consistently overruled by Frutkoff. Clearly, Dove's work habits had long been tolerated by Respondent. In any case, there was no immediate conduct or poor performance on the part of Dove which could have precipitated his discharge in December. However, as a result of the meeting conducted by Frutkoff with Casey, Jules , and Dove on December 9, Frutkoff was able to conclude that he could not overcome the dissension, as he called it, in the maintenance depart- ment. At this point, MCAD had already dismissed the discrimination charge against Respondent, and at the meeting, Jules and Dove, particularly the latter, continued to voice their complaints and grievances with respect to their working conditions. It is more likely that Dove's traits 1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a complainer, a grievant, an employee who questions orders, and one who participates in the filing of MCAD charges also pinpointed him as an union adherent and were the motivating factors behind his layoff. In this connection, it is noted that Respondent acted after each overt sign such as the banning of nonemployees from the cafeteria a day or two after a loud discussion about Union, the final warning to Dove regarding telephones the day after the union meeting , and finally his layoff 2 days after the December 9 meeting with Frutkoff, the MCAD charge having just been dismissed. Assuming that economic conditions warranted the layoff of an employee and further that Dove was somewhat short of a model worker, it is well settled that a discharge even partially motivated by unlawful reasons violates the Act despite the presence of valid reasons for the discharge.? On the basis of all of the foregoing, I find that Respondent laid off Dove because of his activity at MCAD and for his further activities on behalf of the Union rather than because of economic reasons or seniority reasons or his poor performance as an employee. Accordingly, I conclude that by this conduct Respondent violated Section 8(a)(1) and (3) of the Act. 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 the operations of Respondent described in section 1, 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 Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily laid off an employee as set forth above, I shall recommend that Respondent be ordered to offer John Dove immediate and full reinstatement to his former position, or, if thatjob is no longer available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges; and make him whole for any loss of earnings or other monetary loss he may have suffered as a result of the discrimination against him, less interim earnings, if any, plus interest at 6 percent per annum. Any backpay due is to be determined in accordance with the formulas set forth in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962). I Sweeney & Company, Inc v N L R B, 437 F 2d 1127, 1133 (C A 5, 1971) " 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 g8 of the Rules and Regulations , be adopted by the Board and become its fndin s, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes 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 Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By laying off John Dove because of his protected concerted activity, Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By discriminatorily laying off John Dove because of his union activities, Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The Respondent, The Massachusetts Women's Hospital d/b/a Parker Hill Medical Center, Boston, Massachusetts, its officers , agents , successors, and assigns, shall: 1. Cease and desist from: (a) Laying off or otherwise discriminating against any of its employees because of their concerted activities. (b) Discouraging membership in District 1199, Mass., National Union of Hospital and Health Care Employees, RWDSU/AFL-CIO, or any other labor organization, by laying off or otherwise discriminating against employees in respect to their hiring or tenure of employment or other terms of employment because of their union activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights are affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the purposes and policies of the Act: (a) Offer John Dove immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay caused by the discrimination against him in accordance with 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 all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Boston , Massachusetts, hospital copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by the Respondent's authorized representative, shall be posted by it immediately 9 In the event the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading"Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " PARKER HILL MEDICAL CENTER 1295 upon receipt thereof and be maintained by it for 60 consecutive days thereafter , in conspicuous places, includ- ing all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced , or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the opportunity to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and we have been ordered to post this notice. The Act give all employees the following rights: To engage in self-organization, to form, join, or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT lay off or discharge any employee because he has visited the Massachusetts Commission Against Discrimination , assisted another employee in the filing of such employee 's complaint , or cooperated in an investigation conducted by said Commission, or had otherwise engaged in concerted activities protected by the Act. WE WILL NOT lay off or discharge any employee for engaging in union activity on behalf of District 1199, Mass., National Union of Hospital and Health Care Employees, RWDSU/AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL OFFER John Dove immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without preju- dice to his seniority or other rights, and WE WILL make him whole for any loss of pay or any benefits he may have suffered by reason of our discrimination against him, with interest thereon at 6 percent per annum. THE MASSACHUSETTS WOMEN'S HOSPITAL D/B/A PARKER HILL MEDICAL CENTER Copy with citationCopy as parenthetical citation