Physicians Memorial Hospital

National Labor Relations Board - Board Decisions

Jan 8, 1985

273 N.L.R.B. 1332 (N.L.R.B. 1985)

1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Physicians Memorial Hospital and Physicians Me-
morial Hospital Staff Nurses' Association and
Elaine Johns. Case 5-CA-13846(E) and 5-CA-
13899(E)
8 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 16 July 1984 Administrative Law Judge
Richard A. Scully issued the attached supplemental
decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings,' and conclusions and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent's application
for an award of attorneys fees and expenses is dis-
missed.
' In recommending that the Respondent's application for an award
under the Equal Access to Justice Act, 5 U S C § 504 (1982), be dis-
missed, the judge found It unnecessary to examine the adequacy of the
General Counsel's investigation While we emphasize that the General
Counsel's investigation normally should include interviews with all im-
portant available witnesses, we agree with the judge's findings in the par-
ticular circumstances of this case Thus, even assuming as true the Re-
spondent's assertion that the General Counsel failed to interview Supervi-
sors Blair and Stallman during the investigation, such circumstances
would not affect the result here In this regard, we conclude that, wheth-
er or not the General Counsel obtained during the investigation the testi-
mony the supervisors later gave at the heanng, he would have been sub-
stantially justified in issuing the complaint
SUPPLEMENTAL DECISION
[Equal Access To Justice Act]
RICHARD A. SCULLY, Administrative Law Judge.
Counsel for the Respondent Physicians Memorial Hospi-
tal filed an application for attorneys fees and expenses
pursuant to the Equal Access to Justice Act (EAJA)1
following the entry of an Order by the National Labor
Relations Board on May 24, 1983, adopting the findings,
conclusions, and recommended Order of the administra-
tive law judge in the underlying unfair labor practice
proceeding. The consolidated complaint alleged that the
Respondent had violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act), by requiring
certain day-shift nurses to work night shifts on certain
dates (in retaliation for union activities on the part of
' 5 U S C § 504 (1982)
two of these nurses) and by the alleged resulting con-
tructive discharge of one of the nurses who refused to
work these night shifts for health reasons. It was also al-
leged that the Respondent violated Section 8(a)(5) of the
Act by implementing a wage increase to newly em-
ployed nurses without bargaining with the Physicians
Memorial Hospital Staff Nurses' Association (the Union),
the exclusive bargaining representative of the nurses em-
ployed by it. The decision of the administrative law
judge found that the Respondent had violated Section
8(a)(5) of the Act, as alleged, but recommended dismissal
of all allegations concerning violations of Section 8(a)(3).
No exceptions to the decision or recommended Order
were filed by any party.
Having prevailed on significant, discrete portions of an
adversary adjudication, the Respondent may be entitled
to an award of compensation for certain fees and ex-
penses pursuant to EAJA unless the General Counsel es-
tablishes that the Government's position in the underly-
ing litigation was substantially justified, "by showing that
its position in the proceeding was reasonable in law and
fact," or unless "special circumstances make the award
sought unjust." 2
The General Counsel has filed a motion to dismiss the
Respondent's application on the grounds that the Gov-
ernment's position in the litigation was substantially justi-
fied and that the application is otherwise defective. In its
opposition to the General Counsel's motion to dismiss,
the Respondent argues that the motion should be granted
only if it could prove no set of facts which would entitle
it to relief and that the motion should be denied and an
answer to the application filed. The General Counsel's
argument in support of its contention that its position in
the underlying litigation was substantially justified is
fully stated in the motion to dismiss and I find nothing
would be served by requiring the filing of an answer re-
stating that argument. The Board's Rules and Regula-
tions contemplate that the determination on an applica-
tion for an award of expenses under EAJA will ordinari-
ly be made on the basis of the record in the underlying
proceedmg. 3 I find that no further proceedings are nec-
essary in order to make a determination in this case, not-
withstanding the Respondent's allegations that the
Board's investigation which led to the filing of the con-
solidated complaint was deficient. I find that the record
in the underlying case is sufficient to make the determi-
nation as to whether there was substantial justification
for the position taken therein by the General Counse1.4
2 29 CFR § 102 144
3 29 CFR § 102 144(a)
4 In its application the Respondent alleges that the Board's investiga-
tion in this matter was deficient because of the failure to interview Super-
visors Virginia Blair and Lois Stallman concerning the decision to re-
quire the day-shift nurses to work nights The General Counsel responds
that "the Region interviewed all witnesses presented by Respondent
during the course of the investigation, and that it is Respondent's obliga-
tion to present all relevant evidence in response to the charge" At the
trial, the General Counsel called both Blair and Stallman as witnesses and
questioned them extensively about the decision to rotate the day-shift
nurses to nights Under the circumstances, the trial record is complete
and provides the basis for determining whether there was substantial jus-
tification for the General Counsel's position An inquiry Into the mechan-
Continued
273 NLRB No. 163
PHYSICIANS HOSPITAL 1333
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The determination of whether or not the General
Counsel's position is substantially justified is to be made
on a case-by-case basis. 5 The fact that the General Coun-
sel did not prevail in this litigation does not raise a pre-
sumption that its position was not substantially justified,
nor must it be established that the decision to litigate was
based on a substantial probability of prevailing.° Like-
wise, the fact that the General Counsel failed to establish
a prima facie case is not determinative for purposes of an
award pursuant to EAJA.7
After examining the record of the underlying case in
its entirety, I conclude that the position of the General
Counsel was reasonable in law arid in fact. The record
clearly established that Hospital Administrator William
Meyer harbored animus toward the Union and towards
its President Teresa Boone because of her union activi-
ties and that Meyer had disparaged and sought to under-
mine the Union's leadership through comments made at
employee meetings and published in a series of memos,
entitled "Arbitration Update," directed to the hospital
staff. The declaration of the "staffing emergency" on Oc-
tober 14, 1981, which resulted in Mrs. Boone and two
other day-shift nurses being required to work nights,
came within five days of a particularly acrimonious con-
frontation concerning arbitration of unresolved collec-
tive-bargaining issues in which Meyer accused Boone of
"lying," being "lazy," and delaying the arbitration proc-
ess. The timing of an adverse action can be persuasive
evidence of the employer's motivation. 8 Invocation of
extraordinary and rarely used "staffing emergency" pro-
eedure, which caused Boone, a permanent day-shift
nurse, to have to work some nights, coming as it did on
the heels of the Meyer-Boone confrontation on October
9, could reasonably support the inference that the rota-
tion of Boone and the other day-shift nurses was moti-
vated by antiunion considerations. This was particularly
true where one of the "staffing emergency" prerequisites,
no nurses on vacation during the period in question, had
not been met. My conclusion that the General Counsel
had not made a prima facie case was based, in part, on
the credited testimony of Supervisors Blair and Stallman
which convinced me that Meyer was not involved in the
decision to declare the "staffing emergency," that it was
Blair's decision alone, that antiunion considerations were
not involved, and that it was not a pretext Absent that
credited testimony, I would have necessarily found that
the General Counsel had met the burden prescribed in
Wright Line, 9 for establishing a prima facie case.1°
los of the investigation in this matter is neither warranted nor necessary
as there is no indication that the investigation could or should have de-
veloped any more information than is available in the trial record
5 Enerhaul, Inc , 263 NLRB 890 (1982), reversed 710 F 2d 748 (11th
Or 1983)
6 S Rep 96-253 at 7, HR Rep 96-1418 at 11, Westerman, The, 266
NLRB 799 (1983)
7 Wolf Street Supermarkets, 266 NLRB 665 (1983)
8 Limestone Apparel Corp, 255 NLRB 922, 936 (1981)
9 251 NLRB 1083 (1980)
'° While I do not agree with the Genezal Counsel's argument that in
determining whether a prima facie case had been established I should not
have considered the testimony of Blair and Stallman, presented as a part
I do not find the General Counsel's refusal to accept
the Respondent's self-serving denials of unlawful motiva-
tion in declaring the "staffing emergency" to be unrea-
sonable in law or in fact. Few principles are more estab-
lished than, as stated in Shattuck Denn Mining Corp. v.
NLRB," that:
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be avail-
able that is not also self-serving. In such cases, the
self-serving declaration is not conclusive; the trier
of fact may infer motive from the total circum-
stances proved. Otherwise no person accused of un-
lawful motive who took the stand and testified to a
lawful motive could be brought to book.
The fact that I found the testimony of Blair and Stallman
to be convincing and, based on their demeanor and the
totality of the evidence, accepted it as establishing that
the Respondent's motivation was not unlawful does not
mean that the General Counsel must agree or that not to
have done so was unreasonable. Nor was it unreasonable
to have inferred that union animus, as demonstrated by
Meyer, was involved. Meyer's duties at the hospital were
such that he could have had a role in the decision to de-
clare the "staffing emergency," as evidenced by Blair's
testimony that she informed Meyer that she was consid-
ering such action and he told her that she should make
the decision. Also, the fact that Blair was present at the
employee meetings at which Meyer disparaged the union
leadership and at his confrontation with Boone on Octo-
ber 9 could reasonably support the inference that Blair
was acting consistent with and m furtherance of her su-
pervisor's antiunion posture and at his explicit or implicit
direction. I find that the General Counsel's position that
the rotation of the day-shift nurses to the night shift was
discriminatory and a violation of Section 8(a)(3) had a
reasonable basis in law and fact.
Insofar as this litigation also involved the allegation
that Nurse Elaine Johns was constructively discharged in
violation of Section 8(a)(3), I also find that the General
Counsel's position was substantially justified. Johns re-
signed rather than work the night shifts she was assigned
when the "staffing emergency" was declared because she
felt it would be injunous to her health to work nights.
Johns had served as an officer of the Union and her posi-
tion was listed on notices displayed on a bulletin board at
the hospital. Inasmuch as Johns was rotated to the night
shift in the course of the same "staffing emergency" dis-
cussed above, the justification for the General Counsel's
position with respect to Johns was the same whether she
be considered an innocent victim of the alleged discrimi-
natory action directed against Union President Boone or
as a target of discrimination herself. Johns' case might
even be considered stronger since the Respondent failed
to offer a compelling reason why it rejected Johns' re-
quest to be excused from night-shift duty which she
claimed would be harmful to her health. As I noted in
of the General Counsel's case-in-chief, to the extent that It supported Re-
spondent's defense, it is a moot point
" 362 F 2d 466, 470 (9th Cy 1966)
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the underlying decision, Blair took what appeared to be
a rather hard-line approach in refusing Johns' request.
There was a substantial amount of conflicting testimony
by Johns, her physician Dr. Burke, Stallman, and Blair
as to what transpired after Johns was informed of the
schedule changes occasioned by the "staffing emergen-
cy." Had the testimony of Johns and Burke been cred-
ited over that of Blair and Stallman, the result in this
case may well have been different. In any event, it
cannot be said that the General Counsel's position in at-
tributing the Respondent's actions in this matter to union
animus was unreasonable.
Considering all of the circumstances, I find that the
General Counsel's position with respect to each of the
8(a)(3) allegations was substantially justified and that the
Respondent's application pursuant to EAJA should be
denied.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
ORDER
The Respondent's application for an award of attor-
neys fees and expenses is dismissed.
12 If no exceptions are riled as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses