Presbyterian University Hospital

National Labor Relations Board - Board DecisionsJul 31, 1989

295 N.L.R.B. 1139 (N.L.R.B. 1989)

PRESBYTERIAN UNIVERSITY HOSPITAL 1139 Presbyterian University Hospital and Ralph M. Malay . Case 6-CA-20953 July 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS HIGGINS AND DEVANEY On March 28, 1989, Administrative Law Judge Marvin Roth issued the attached decision . The Re- spondent filed exceptions and a supporting brief. The General Counsel filed an answering brief in opposition to the Respondent 's exceptions and brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge 's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Presbyterian University Hospital, Pittsburgh, Pennsylvania, its officers, agents, successors , and assigns , shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge 's credibility find- ings. The Board 's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir . 1951). We have carefully examined the record and find no basis for reversing the findings. Janice Anne Sauchin, Esq., for the General Counsel. Jonathan L. Alder, Esq., of Pittsburgh, Pennsylvania, for the Respondent. DECISION STATEMENT OF THE CASE MARVIN ROTH , Administrative Law Judge. This case was heard at Pittsburgh , Pennsylvania, on January 25, 1989. The charge was filed on May 5, 1988 , 1 by Ralph M. Malay, an individual . The amended complaint, which issued on December 13, alleges that Presbyterian Univer- sity Hospital (the Company or Respondent) violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act. The gravamen of the complaint is that the Company al- legedly interrogated an employee concerning union atti- tudes, eliminated Malay from consideration for employ- ment, and subsequently failed and refused to hire him be- cause of his membership in and support of United Broth- erhood of Carpenters ' District Council of Western Penn- sylvania, Local 165, AFL-CIO (the Union), and of unions in general . The Company's answer denies the commission of the alleged unfair labor practices . All par- ties were afforded full opportunity to participate, to present relevant evidence , to argue orally , and to file briefs . Only General Counsel filed a brief. On the entire record in this case2 and from my obser- vation of the demeanor of the witnesses , and having con- sidered the arguments of counsel and the brief submitted by General Counsel , I make the following FINDINGS OF FACT The Company, a Pennsylvania corporation with an office and place of business in Pittsburgh , Pennsylvania, is engaged as a health -care institution in the operation of a hospital providing medical and professional care serv- ices . In the conduct of its operations the Company annu- ally derives gross revenues in excess of $250,000, and an- nually purchases and receives at its hospital goods and materials valued in excess of $50,000 directly from points outside Pennsylvania . The Company is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health-care institution within the meaning of Section 2(14) of the Act. 1. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Company has a plant maintenance department with about 50 employees in various categories , including carpenter. The employees are covered by a collective- bargaining contract with the Operating Engineers Union, which includes a union-security clause. James Yourison, as director of plant maintenance , is head of the depart- ment. He is assisted by Assistant Director Dale Falce and Construction Supervisor Ed Weimer . Ralph Malay is a qualified and experienced journeyman carpenter and Member of the Union . For about 7 weeks, from Decem- ber 1987 to mid-February 1988, Malay worked at the Company's hospital while on loan from his then employ- er. Malay enjoyed working there , and Supervisor Weimer was impressed with his work. Malay asked Weimer to let him know if there was an opening for a permanent position. Shortly thereafter Weimer notified Malay through a friend that Malay should file an appli- cation . The Company was interviewing applicants in var- ious categories , and anticipated hiring two carpenters. Malay filed an application , and then, in accordance with usual company practice , was interviewed first by the per- sonnel office and then within the maintenance depart- ment by Weimer (Weimer and/or Falce conducted the departmental interviews). It is undisputed that Malay met the listed qualifications for the job , including completion All dates herein are for 1988 unless otherwise indicated 295 NLRB No. 138 2 General Counsel's motion to correct transcript is granted , and the of- ficial transcript of proceedings is noted and corrected. 1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of a 3-year industry recognized apprenticeship program in carpentry, or equal on -the-job training , plus 2 addi- tional years' experience as a journeyman . Weimer indi- cated to Malay that he had a good chance, and probably would be hired . Weimer and Falce interviewed 11 appli- cants for the two carpenter openings , and on April 5 sent their recommendations to Director Yourison. They rec- ommended Malay as their first choice , and listed the re- maining applicants in descending order of preference, in- cluding Larry Bergless as second choice and Ted Weir as third . Weir, like Malay, was a member of the Carpen- ters Union , and so indicated on his application. Malay's application did not expressly state that he was a member of the Union . However, by indicating his participation in the Union 's apprenticeship program and his work experi- ence, he identified himself as a union carpenter . Bergless' application , including his qualifications and experience (which failed to indicate participation in an apprentice- ship program , and reflected wages below union scale), identified him as a nonunion carpenter . None of the three applicants indicated any problem with working hours on their applications . Weimer and Falce told all applicants that they could anticipate being asked to work shifts, i.e., that they might be called on to work from 4 p .m. to mid- night or midnight to 8 a .m., rather than only daytime hours . Director Yourison made a practice of interview- ing the top two or three recommendations (depending on whether there were one or two openings) in each job category . He had the final decision on hiring . On April 8 Yourison interviewed three carpenter applicants (Malay, Bergless, and Weir) and three painter applicants. Youri- son testified that he was not primarily concerned with the applicants ' technical ability (which he left to Weimer and Falce but wanted "to get a feel for how they would fit into the department as an individual." Malay testified in sum as follows concerning his inter- view with Yourison: After they were seated Yourison examined a file and remained silent for a few minutes. He then proceeded to question Malay about the number of carpenters on the out-of-work list. Malay tried to ex- plain that he was not seeking the job because he was out of work . Yourison brushed aside the explanation and continued talking about layoffs. He asserted that he knew all about "layoffs in construction unions ." Yourison ex- plained that he worked with a firm and was project man- ager at a chemical plant in Delaware, and was having problems with job slowdowns . He believed that a car- penter steward was responsible. Yourison summoned the business agent to resolve the problem . The business agent told him "You are going to have to do what you have to do." Yourison laid off the steward and five other carpen- ters . The next day his firm was confronted by 150 pick- ets, led by the Carpenters ' business agent . Yourison con- tinued his diatribe against the Carpenters Union. He as- serted that Delaware was once 100-percent union in commercial work , but was now only 25 percent, and that the worst trades were the Pipefitters and Carpenters. Malay tried to change the subject by discussing his quali- fications , but Yourison again brushed him aside, asserting that : "The only reason you are here is because the man in the next office [meaning Weimer] wants you to be here ." Yourison then asked Malay whether he "ever had experience working union contractors and non-union contractors." Malay answered that he did, and told about a job where the electrical work was rejected on inspec- tion because the nonunion electrical contractor used cheap wiring . Malay suggested that a union contractor would have used the proper wire . Yourison argued that, "I find out that a lot of non-union contractors are better than union ones ." Malay again tried to change the sub- ject, commenting that there appeared to be a lot of con- struction work at the hospital . Yourison replied that the hospital might run short of money, that he was a thrifty person who believed in a "cuts, cuts , cuts," and did not want work done on overtime , but wanted shift work. Malay responded that this would not be a problem. Yourison told Malay that he would hear either way by the following Wednesday (April 13) and cocluded the interview. April 13 passed , and Malay heard nothing . On April 15 Malay telephoned Construction Supervisor Weimer, who told him that Yourison picked the other two car- penters because Malay told Yourison that he did not want to work shift work . Malay said he couldn't under- stand this. Weimer suggested he call Yourison, and gave him Yourison's number . Malay immediately called Youri- son. Malay testified in sum as follows concerning their conversation : Malay told Yourison what Weimer told him, and explained that Yourison must have made a mis- take . Yourison answered that "you sounded kind of vague,"' and "I thought you might be a problem down the road ." Malay asked if there was anything Yourison could do, because Malay told him he was willing to work shifts . Yourison answered that he could do noth- ing, because the other two candidates were notified and were scheduled for physicals . At this point Malay said: "I hope someday when you are interviewed-if you are ever interviewing for a job, you get the same treatment that you have given me." Yourison answered that "I am glad I didn 't hire you. You sound like a disgruntled em- ployee." Yourison added that "you would probably be a problem to me," and ended the conservation . Malay tes- tified in sum that he did not use profanity toward Youri- son or threaten to cause him to lose his job. On April 18 Malay sent a letter to the hospital's direc- tor. Malay explained the events leading to his rejection, protested the manner in which Yourison treated him, ex- plained why he wanted to work for the Company, and indicated that he was considering filing a charge with the Board . The Company did not respond to Malay's letter . By letter dated July 12, the Company informed Malay that the carpenter position "was filled by a more suitable candidate" but that the Company would "keep your application active should another vacancy devel- op-,, Yourison was presented as an adverse witness for Gen- eral Counsel and witness for the Company . Yourison was visibly nervous on the witness stand, particularly when testifying about his interview and decision not to hire Malay. Yourison initially testified that he could not recall what he said to Malay. He testified that he did not ques- tion any of the six applicants about their union back- ground or sympathy . However, he did not deny ques- PRESBYTERIAN UNIVERSITY HOSPITAL 1141 tioning applicants about layoffs or union and nonunion employees working on the same job . As Yourison pro- gressed in his testimony , he gradually came around to corroborate key points of Malay's testimony . Yourison testified that he worked as assistant project manager at an oil refinery in Delaware , where building trades unions, including carpenters , represented the employees, and that he was involved in dealing with business agents on labor disputes . He testified that he was also employed on projects at chemical plants in New Jersey , Michigan, and Ohio . However he testified that he did not experi- ence any carpenters ' strike, and although he laid off em- ployees, he never laid off a carpenters ' steward . Youri- son was very clear in his recollection that he could not lay off any steward, because the stewards had supersen- iority . Yourison testified that during the interviews he probably talked about the fact that he worked in Dela- ware at an oil refinery , and that Malay must have learned the fact from him . However, Yourison failed to explain how or why the subject came up. Yourison testi- fied that in an interview the applicant said that nonunion labor was inferior to union labor , and he responded that his experience was otherwise . Again Yourison did not explain how the subject came up and he did not deny that the applicant was Malay. I credit Malay . It is evi- dent that Yourison learned the hard way that he could not lay off a steward , and never forgot that lesson. Yourison was bitter toward the Carpenters Union, and vented his anger at Malay . Yourison also questioned Malay enough to learn that he was not only a union car- penter (which he already knew ) but also a strong-minded unionist. Yourison testified that during his interview of Weir (the other union carpenter), he learned that Weir would have difficulty doing shift work . In Yourison 's words, Weir "eliminated himself." At the close of the inter- views, he made the following entries at the top of each job application : On Malay's "Good-Hire" on Burgless', "Good man-Hire," and on Weir's "has trouble with the second shift." However, the next morning Yourison made notes of the interviews in the form of instructions to his subordinates . He attached the application papers to the one-page sheet of instructions. Yourison described all the applicants as "real good ." With respect to the car- penters, Yourison said "let's hire" Bergless and Weir, adding that : "Malay was surprised about 2nd shift poten- tial. Says it might cause him problems." He directed his secretary to initiate the paperwork. Yourison testified that he made a mistake, and confused Malay with Weir. With regard to Malay's followup call, Yourison testi- fied that Malay asked him why he was not selected. Yourison answered that he got the impression that Malay would have trouble on shift work . Malay said he was able to do shift work. Yourison testified that he thought Malay was simply engaging in self-serving talk. Yourison testified that at this point Malay became abusive , called Yourison "a son-of-a-bitch," and threatened to see that Yourison went "down the road" (a construction industry term for discharge). Yourison testified that he eventually ended the conversation , and that because of Malay's lan- guage, he would not consider him for employment. Yourison further testified that he did not realize he made a mistake until after the Company received Malay's April 18 letter, and that he could have changed his deci- sion at the time Malay called him. Yourison testified that because of budgetary constraints , the Company hired only one carpenter . The Company hired Burgless, the nonunion carpenter , and he began working in August. However, the Company anticipated hiring another car- penter. I do not credit Yourison 's explanation that he confused Malay with Weir . Yourison impressed me as a meticu- lous manager who would not likely have made such a major error . It is also unlikely that Yourison would have forgotten his interview with Malay . Yourison knew ex- actly what he was doing . He wanted to avoid hiring a union carpenter , particularly one who was a strong unionist . When Weir indicated that he might not be able to work shifts , Yourison saw an opportunity to kill two birds with one stone . He "confused" (on paper) Malay and Weir, thereby causing Malay's rejection, knowing that Weir, who really had a problem working shifts, could not in any event take the job . This left only the nonunion applicant. When Malay telephoned Yourison, he refused to accept Malay's explanation, suggested he was lying, thereby provoking Malay to justifiable anger, and then used Malay's anger as a further excuse to refuse to consider him for employment . I credit Malay's version of their telephone conversation . As indicated, Malay was demonstrably a more credible witness than Yourison. Moreover, Yourison's version of the conversation was inherently improbable . Even if Malay were disposed to use profanity and threaten Yourison , it is unlikely that he would do so unless and until Yourison flatly turned him down . However, Yourison 's version of the conversation fails to indicate that Yourison did S0.3 B. Concluding Findings I find that the Company eliminated Malay from con- sideration for employment , and in August failed and re- fused to hire him, because of his membership in the Union and outspoken support for unions, particularly building trades unions . The Company thereby violated Section 8(a)(1) and (3) of the Act. I am not persuaded by the Company 's argument that the record fails to show union animus , because the maintenance department has hired employees whose applications indicated that they had been or were members of unions other than Carpen- ters . Yourison's animus was directed principally at the Carpenters Union.4 I further find that Yourison violated 3 Malay's wife, who was presented as a General Counsel witness, cor- roborated Malay 's testimony concerning his telephone conversations with Weimer and Yourison Debra Malay testified that she was present and home about 7.45 a in . when Malay spoke to Weimer and Yourison, and that she left for work about 8 a .m. However, Weimer testified that the conversations took place between 9 and 9:30 a .m., and that he arrived at work at 8:30 a.m . In crediting Malay , I have not relied on the testimony of his wife 4 In light of Malay's credited testimony concerning his job interview with Yourison , and the fact that the Company refused to consider or hire Malay notwithstanding that the Company regarded him as the best quali- fied applicant , General Counsel presented a prima facie case that the Company discriminated against Malay because of his membership in and support for the Carpenters Union. As I have not credited Yourison's Continued 1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) of the Act by interrogating Malay con- cerning his experiences with union and nonunion con- tracting on the same job. As Yourison admitted in his testimony, he had no legitimate reason for asking such questions (all maintenance department employees were represented by one union shop agreement.) Yourison questioned Malay in an atmosphere of official formality. Yourison was the highest department official, he had final authority to hire employees, and this was a job interview. Yourison gave no assurance against reprisal. Rather he questioned Malay in the context of his outspo- ken hostility toward building trades unions and the Car- penters Union in particular. Most important, Yourison questioned Malay for the purpose of taking discriminato- ry action, i.e., to determine the extent of his support for unions. Therefore the questioning was coercive and un- lawful. "The Board has long recognized that questions involving union membership and union sympathies in the context of a job interview are inherently coercive and thus interfere with Section 7 rights." Service Master, 267 NLRB 875 (1983), and cases cited therein. Company's offer of employment. See Young Hinkle Corp., 244 NLRB 264, 267 (1979). I shall also recom- mend that the Company be ordered to expunge from its records any reference to the failure and refusal to hire or consider Malay for employment, to give written notice of such expunction to him, and to inform him that its un- lawful conduct will not be used as a basis for further per- sonnel actions against him. See Sterling Sugars, 261 NLRB 472 (1982). Backpay shall be computed in accord- ance with the formula approved in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).5 It will also be recommended that the Company be required to preserve and make available to the Board, or its agents, on request, payroll and other records to facilitate the computation of backpay due. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER CONCLUSIONS OF LAW 1. The Company 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 discriminatorily eliminating Ralph Malay from consideration for employment, and failing and refusing to hire him, thereby discouraging membership in the Union, the Company has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, the Company has engaged , and is en- gaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) and (3) of the Act, I shall recom- mend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company discriminatorily elimi- nated Ralph Malay from consideration and subsequently failed and refused to hire him, I am recommending that the Company be ordered to offer him employment to the carpenter position for which he applied, and make him whole for any loss of earnings and benefits that he may have suffered from the date in August 1988 when the Company hired Lawrence Bergless, until the date of the claim that he confused Malay and Weir , or his testimony concerning his telephone conversation with Malay, it follows that the Company failed to meet its burden of establishing that it would have eliminated Malay from consideration or refused to hire him in the absence of such membership support. The Respondent, Presbyterian University Hospital, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in United Brotherhood of Carpenters and Joiners of America, Carpenters' Dis- trict Council of Western Pennsylvania, Local 165, AFL- CIO or any other labor organization, by discriminatorily refusing to consider for employment or refusing to hire job applicants, or in any other manner discriminating against employees with regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating job applicants or employees concern- ing their union sentiments or sympathies. (c) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Ralph Malay immediate and full employment to the carpenter job for which he applied or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for losses he suffered by reason of the discrimination against him as set forth in the remedy section of this decision. (b) Expunge from its files any reference to the failure and refusal to hire or consider Malay for employment, and notify him in writing that this has been done and that evidence of the unlawful conduct will not be used as a basis for future personnel actions against him. 5 Under New Horizons, interest on and after January 1, 1987, is comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C. § 6621. 9 If no exceptions are filed 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 PRESBYTERIAN UNIVERSITY HOSPITAL 1143 (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, time- cards, personnel records and reports , and all other records necessary to analyze the amount of backpay due. (d) Post at its Pittsburgh , Pennsylvania office and place of business copies of the attached notice marked "Appendix."7 Copies of said notice on forms provided by the Regional Director for Region 6, after being duly signed by Respondent 's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to job applicants 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 in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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." APPENDIX WE WILL NOT discourage membership in United Brotherhood of Carpenters and Joiners of America, Car- penters' District Council of Western Pennsylvania, Local 165, AFL-CIO, or any other labor organization , by dis- criminatorily refusing to consider for employment or re- fusing to hire job applicants or, in any other manner, dis- criminating against employees with regard to their hire or tenure of employment or any term of condition of em- ployment. WE WILL NOT interrogate job applicants or employees about their union sentiments or sympathies. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your right to engage in union or concerted activities , or to refrain therefrom. WE WILL offer Ralph Malay immediate and full em- ployment to the carpenter position for which he applied, or if such job no longer exists , to a substantially equiva- lent position , without prejudice to his seniority or other rights and privileges , and make him whole for losses he suffered by reason of the discrimination against him. WE WILL expunge from our files any references to the failure and refusal to hire or consider Ralph Malay for employment , and notify him in writing that this has been done and that evidence of the unlawful conduct will not be used as a basis for future personnel actions against him. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government PRESBYTERIAN UNIVERSITY HOSPITAL The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice.