Lauderdale Lakes General Hospital

National Labor Relations Board - Board Decisions

Dec 19, 1978

239 N.L.R.B. 895 (N.L.R.B. 1978)

LAUDERDALE LAKES GENERAL HOSPITAL
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
December 19, 1978
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENElLO
AN[) MURPIl'Y
On January 24, 1977, the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding.' finding that Respondent,
Florida Medical Center, Inc. d/b/a Lauderdale
Lakes General Hospital had violated, inter a/ia, Sec-
tion 8(a)(3) and (1) of the Act by discriminatorily
discharging certain employees and ordering that Re-
spondent cease and desist from committing unfair
labor practices and take certain affirmative action.
Thereafter, the Board filed a petition for enforce-
ment of its Order with the United States Court of
Appeals for the Fifth Circuit. On July 17, 1978, the
court issued its decision 2 in which it enforced the
Board's Order in part 3 and remanded the case to the
Board for consideration of the issue of whether Re-
spondent's remedial obligation to offer backpay to
discriminatee Bridget Kelly survived her death.
Thereafter, on August 29, 1978, the Board notified all
parties to this case that the Board had accepted the
court's remand.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The facts which present the issue remanded by the
court are not complicated. The Board, in its original
Decision in this proceeding, found that Respondent
had, inter alia, unlawfully discharged Bridget Kelly
and ordered that it offer Kelly immediate and full
reinstatement and make her whole for any loss of
earnings she may have suffered by reason of Respon-
dent's unlawful conduct. As the court noted, Kelly
died between the issuance of the Board's Decision
and the filing of the petition for enforcement, and the
"227 NLRB 1412.
2 N.L.R.B. v Florida Medical Center. Inc. 576 F. 2d 666.
'The court found that substantial evidence did not support the Board's
finding that Respondent unlawfully discharged employee Carolyn Stern
Accordingly. the court denied that part of the Board's Order granting Stern
reinstatement and backpay. Consequently. in modifying the Order and in
providing a revised notice. we have deleted therefrom all references to reins-
tating Stern ant making her whole for any losses she sustained as a result of
her discharge
Board did not, therefore. seek reinstatement. How-
ever, since "neither of the parties addressed the ques-
tion of whether Bridget Kelly's [backpay] remedy
survived her death." the court, stating that the Board
is "entitled to resolve this issue in the first instance,"
remanded that issue to the Board for determination.4
As the Board has stated in various occasions,
backpay is based not on a private right but rather on
a public right established to vindicate the policies of
the Act.' The death of a discriminatee does not.
therefore, obviate the need for the backpay remedy
which is intended, along with other remedial provi-
sions, to reestablish the situation as it would have
existed absent the unfair labor practices, thereby dis-
sipating, removing, or avoiding the consequences of
the illegal conduct.' And, indeed, where a discrimi-
natee has died, the Board has specifically ordered his
estate made whole for any financial loss suffered as a
result of the unlawful conduct against him.'
In view of the above considerations we find that
the make-whole remedy with respect to Kelly sur-
vived her death. Accordingly, we reaffirm that por-
tion of our original Order requiring Respondent to
make Kelly whole, and we shall modify our Order to
require that Respondent pay to Bridget Kelly's estate
any loss of earnings Kelly may have suffered by rea-
son of the discrimination against her. However, since
Respondent's obligations to offer Kelly reinstate-
ment ended with her death, we shall limit the back-
pay period from the date of her discharge to the date
of her death.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby reaffirms its Order previously
issued herein, as modified below, and hereby orders
that the Respondent, Florida Medical Center, Inc.
d/b/a Lauderdale Lakes General Hospital, Lau-
derdale Lakes, Florida, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order previously issued, as so modified:
1. Substitute the following for paragraph 2(a) of
the Order as modified in our original Decision and
Order in this proceeding:
"(a) Make whole Bridget Kelly's estate for any
loss of earnings Kelly may have suffered from the
date of her discharge until the date of her death by
4576 F.2d at 673 674.
See Federated Publicattons, Inc. d h a The Stale Journal. 238 NL RB No.
69 (1978)
See Prestige Bedding Company. Inc. 212 NLRB 690 (11974)
Ibid. See also J H. Rutter Rer Manufacturing Company. 158 NLRB
1414. 1464-65 (1966) enfd and modified in part 399 F.2d 356 (5th Cir
1968). revised and remanded 396 U.S. 258 (1969), supplemental judgment
enfg issued April 6, 1970.
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason of the discrimination against her in the man-
ner set forth in the section of this Decision entitled
'The Remedy.'"
2. Substitute the attached notice for that provided
for in our original Decision and Order in this pro-
ceeding.
APPENDIX
No-ric 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
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 represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all of these things.
WE WILL NOT do anything that interferes with
these rights.
WE WILL Nor discharge any of our employees
because they have exercised one or more of
these rights.
WI WIL[. NOT promulgate, maintain, or enforce
no-solicitation rules which prohibit our employ-
ees from engaging in union or other protected
concerted activities on nonworking time on our
property.
WE WILL NOri threaten our employees with dis-
charge, unwarranted arrest, or other reprisals for
violating our invalid no-solicitation rules or for
engaging in other union activities or other pro-
tected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act, to join or assist Transportation
Employees Association, affiliated with District
2, MEBA-AMO, AFL-CIO, or Seafarers Inter-
national Union, or any other labor organization.
WE WilL make whole Bridget Kelly's estate
for any loss of earnings Kelly may have suffered
by reason of the discrimination against her.
WF WIL L revoke our invalid no-solicitation
rules.
FLORIDA MEDICAL CENTER. INC. d/b/a
LAL DERDALE LAKES GENERAL HOSPITAL
896