Providence Hospital

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1071 (N.L.R.B. 1980)

PRO(VIDELNCF HOSPIT-AlI 11)71
Providence Hospital and 1199, Providence Hospital
Workers Organizing Committee, National
Union of Hospital and Health Care Employees,
RWI)SU/AF-CIO. Case 1-CA-8320
August 27, 1980
DECISION AND ORDER
B M NMH IERS JENKINS, PIEN II 0, ANI)
TRlI:SI)AI 1
On June 3, 1980, Administrative Law Judge
Thomas D. Johnston issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in answer to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) 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 Board has considered the record and the at-
tached Decision' in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Providence
Hospital, Columbia, South Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I The Admnnistrative l.aw Judge', Decision contains in;adverletil
errors which we hereby correct In sec II. F. par 14. the statement to
-Turner recelved these different calls" is inaccurate; the record reseals
that the Decision should read "l'urner rceised three different calls.
Respondenlt has excepted to certain credibilit findings made by the
Administrative L.aw Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
hility unless the clear preponderance of all of the relevant eidetce coin-
vinces us that the resolutions are incorrect Sandard Dry L'all Products.
Inc.. 91 N.RB 544 (1950). enfd 188 F 2d 362 (3d Cir 19511) We have
carefully examined the record and find no basis for reversing his Finding,
:' With respect to the backpaN insolved. Member Jenkins would com-
pute the interest in accordance with the formula set forth in his partial
dissent in Olympic Medical Corporation. 250 NLRHB 146 (1980)
DECISION
STATEMENT OI THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge:
This case was heard at Columbia, South Carolina, on
January 14 and 15, 1980. pursuant to an amended
charge' filed by 1199, Providence Hospital Workers Or-
' The original charge s, as filed on Ma5 2. 1979
251 NLRB No. 148
ganiilig Committee, National Union of Hospital and
Health Care [Employees, RDSU/AFL-CIO (herein
called the Union), on June 25. 1979,2 and an amended
complaint issued on December 31
1The amended complaint, which Hwas further amended
at Ihe hearing, alleges Providence Hospital (herein called
the Respondent), violated Section 8(a)(1) of the National
Labor Relations Act, as amended, by instructing its em-
ployees not to talk to a known union adherent in the pa-
tient area cf the hospital: engaging in surveillance of its
employees' union activity, informing its employees they
were not allowed to discuss the union in work areas; and
informing employees that a reason an employee had been
discharged was because of her union activity.:' It also al-
leges the Respondent violated Section 8(a)(3) and (1) of
the Act by issuing a written warning and 3-day suspen-
sion and a written reprimand to Herbert Turner and by
discharging and refusing to reinstate Turner all because
Turner joined or assisted the union or engaged in other
union activities.
The Respondent in its answer dated January 10, 1980,
which wvas amended at the hearing. denies having violat-
ed the Act ias alleged.
The issues involved are whether the Respondent x io-
lated Section 8(a)(1) and (3) of the Act as alleged b en-
gaging in unlawful surveillance; making unla\ wful state-
ments to employees regarding the union; and whether it
discriminatorily issued a written warning and 3-day sus-
pension and a written reprimand to Turner and dis-
charged and refused to reinstate Turner because of union
activities.
Upon the entire record4 in this case and from my ob-
servations of the witnesses and after due considerations
of the briefs filed by the General Counsel and the Re-
spondent, I hereby make the following: 6
FINDINGS OF FAC i
I. THE BUSINESS OF H E RSPONDEN
The Respondent, a South Carolina corporation, with a
facility located at Columbia, South Carolina, is engaged
in the business of operating a hospital. During 1979, a
representative period, the Respondent in the course of its
operations received gross revenues of $250,000 and it
purchased and received at its facility goods and materials
valued in excess of $50,000 from points located outside
the State of South Carolina.
The Respondent is an employer engaged in commerce
within the meaning of Section (2), (6), and (7) of the
Act.
All dales referred to are in 1979 unless otherwise stated
: Certain lother allegations of unlawful interrogation. surveillance. aind
threats were withdrawn at the hearing and 1an allegation of unlawful ur-
seillance was also dismissed
4 The (iGeneral Counsel's motion datlled April 24. Iit). Ito crrect the
Iranlscript to which the Resplondenl stailted iit u;s nol opposed is hereby
granted
: lhe Charging party did ot subhnit a hrief
" ess,, ih lhcrls lc dllclled Ihc Flldll gs ari r b.Lsed on the pleadings.
adisllsions), siplptl1aions .'il ainlispiletd Ce deilce intaeid in the record
whicLh I credit
PR( )\ I I)ENCE 1l( )SPItA I 0 71
1072 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
II. THE IABOR ORG(ANIZATION INVOI VII)
The Union, 1199, Providence Hospital Workers Orga-
nizing Committee, National Union of Hospital and
Health Care Employees, RWDSU/AFL-CIO, is an or-
ganizion comprised of members employed by the Re-
spondent who are engaged in organizing the employees
employed there. Its purpose is to act as the collective-
bargaining representative of the Respondent's employees
concerning their grievances, wages, hours, shifts, and
working conditions upon successfully organizing the em-
ployees. 1199, National Union of Hospital and Health
Care Employees of which it is a part has been in exist-
ence approximately 20 years and is affiliated with the
Retail, Wholesale, Department Store Union and the
AFL-CIO.
The findings are based on the undisputed testimony,
which I credit, of Authur Laudman, Jr., who is an orga-
nizer for 1199, National Union of Hospital and Health
Care Employees, RWDSU/AFL-CIO.
Based on the foregoing evidence, I find contrary to
the Respondent's denial that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.7
III. IHE U NFAIR I ABOR PRACTICES
A. Background
The Respondent operates a hospital located at Colum-
bia, South Carolina. It employs approximately 690 to 695
employees. Included among its supervisory personnel are
Assistant Director of Nursing Mary DeHihns, Head
Nurse of the Progressive Coronary Unit Noel Simmons,"
Head Nurse on Fourth Floor Theresa Brannigan, Direc-
tor of Personnel George Long, Jr., Assistant Administra-
tor Carl Allen, Assistsnt Director of Engineering Cecil
Commerlander, Sr., Associate Director of Nursing Freda
Harvey, and Director of Engineering Services Marion
Heise. 9
The Union began an organizing campaign among the
Respondent's employees the latter part of July 1978. It
distributed union leaflets at the gates of the facility and
held the first union meeting the latter part of September.
The Respondent as acknowledged by its supervisors,
Brannigan, Heise, Harvey, and DeHihns and as reflected
in antiunion campaign literature distributed by the Re-
spondent, was opposed to the Union's efforts to organize
its employees.
Herbert Turner, the discriminatee, was employed by
the Respondent as an orderly from August 1970 until his
discharge on March 7. He worked under the supervision
of Assistant Director DeHihns and Associate Director
Harvey. He was active in the Union's organizing cam-
paign and his activities included signing a union interest
card, passing out approximately 300 union interest cards
to other employees to sign, soliciting employees to sign
I Sec 2(5) of the Act defines "labor organization" as "any organization
or any kind. or any agency or employee representation committee or
plan, in which employees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment or conditions of
work."
8 Simmons' name was formerly Belford.
I These individuals are supervisors under the Act.
such cards, and attending union meetinqs. Additionally,
he accompanied Union Organizer Laudman to other em-
ployees' homes during the organizing campaign.
Former employee Walter Troutman testified about
several conversations he had with the Respondent's su-
pervisory personnel about the Union while employed
there. On the day the first union meeting was held he
was called into the office by Personnel Director Long
and in the presence cf Assistant Administrator Allen,to
Long requested him to attend the union meeting to be
held that night, to find out who attended the meeting,
who the spokesman was, and to bring him the literature
the union was passing out. He agreed but declined
Long's offer to buy gas for his vehicle.
Upon leaving the office, Assistant Director of Engi-
neering Commerlander also told him he wanted him to
go to the union meeting.
Troutman attended the union meeting held that night
which was attended by five or six other employees in-
cluding Turner and James Floyd. The next day he stated
he informed Long of the names of those employees in-
cluding Turner who attended the union meeting and
gave Long the union literature he had received.
A couple of days later Troutman testified he had two
other conversations with Long. who informed him he
thought this thing would die down if they would give it
enough time and that Turner had been very active in
union activities.
About a month later Troutman stated Commerlander
again asked him to attend the next union meeting.
Long acknowledged the day after the first union meet-
ing Troutman reported to him the names of those em-
ployees who had attended the union meeting. However,
his version was Troutman had come to him and offered
to attend the union meeting whereupon he had informed
Troutman he could not ask him to do that but said if he
chose to do that and wanted to tell him about those
things he would listen. He also acknowledged having
convervsations with Troutman in which he mentioned
Turner was active in the union and telling Troutman he
did not feel the union had a great hold on the hospital
and it would eventually go away.
Commerlander also acknowledged about the time of
the first union meeting Troutman informed him who had
attended the union meeting. However, he denied asking
Troutman to do so but stated Troutman had come to
him and told him he was planning to attend and would
let him know who was there whereupon he replied,
"fine." 1
Troutman also testified Director of Engineering Serv-
ices Heise told him he did not think they had to worry
about the Union ever coming to Providence and also
said he had someone else going to the union meetings.
Heise denied having such a conversation with Trout-
man and although he recalled having talked to Troutman
about the Union he could not recall specifically what
was said.
"' Allen did not testify
" Although Commerlander first testified Itroutman came to his office
after he had told Troutman he wanted to see him, he subsequently stated
Troutman came to his office and asked him if he could talk to him
PROVIDENCE HOSPITAL 1073
Although I credit the testimony of Troutman, which I
find more plausible than that of Long and Commerlander
regarding these conversations,12 such evidence. regard-
less of whose version is credited, establishes both the Re-
spondent's union animus and its knowledge of Turner's
union activities. Moreover, Turner's supervisor, Assistant
Director DeHihns and Head Nurse Brannigan both ac-
knowledged they had also heard about Turner's union
activity.
B. Surveillance
Herbert Turner, whose testimony was partially cor-
roborated by former orderly Clyde Gardner 1 3 testified
shortly after the Union organizing campaign began and
in November and December 1978 and February, he ob-
served his supervisors, Assistant Director DeHihns and
Associate Director Harvey, following him as he went
about his duties answering calls. 14 This would sometimes
occur four or five times a day. On those occasions upon
going to one of the floors he would observe either De-
Hihns or Harvey, follow him to that floor or they would
be there when he arrived to answer a call. Prior to that
time, this had not occurred and he had only observed
them on the various floors where he was working two to
four times a week.
Orderly Clifford Shirah, a nonunion supporter, denied
he ever observed any of the supervisors watching him.
Both Harvey and DeHihns acknowledged they began
watching the orderlies while they were performing their
work throughout the facility. According to DeHihns this
began the latter part of 1978 while Harvey stated it
began about August 1978 and lasted until November or
December 1978. Their explanation was they were doing
a jobstudy suggested by Executive Vice President Peter
Reibold to justify a request by the nursing staff for hiring
additional orderlies. They acknowledged, however, that
no documentation was made of this study. Harvey also
denied engaging in surveillance of Turner or anyone
else's union activities.
Reibold, who is also chairman of the Respondent's
budget committee, stated after receiving the written min-
utes of the head nurse's meeting held on December 4,
1978, which recommended additional orderlies be hired,
he requested Harvey to provide him with data to use in
making recommendations for additional orderlies and
suggested she do some sampling to determine what the
orderlies were doing and to see if they were being fully
utilized.
The evidence establishes and the Respondent's Super-
visors DeHihns and Harvey admit they began watching
the orderlies. However, their claim that it was for the
purpose of justifying the need for hiring additional order-
lies is contrary to the testimony of Turner, Gardner, and
Harvey herself that this began prior to December 4,
1978, when the request for additional orderlies was made
or any study suggested. Moreover, the absence of any
12 These conversations with Troutman were offered and received as
background evidence
3 Gardner worked for the Respondent until December 11, 1978
14 Turner slated while engaging in union activities, which he did
before and after work and during breaks and lunch, he tried to keep su-
pervisors from seeing himn
documentation being made to support such a study fur-
ther indicates no such study was conducted for the
reason asserted.
Under the circumstances, and in view of the fact the
Respondent was interested in learning of its employees'
union activities as evidenced by its solicitation of Walter
Troutman, to attend union meetings and report on the
union activities of other employees, I am persuaded and
find from November 2, 1978,15 through February, the
Respondent, through its supervisors, Assistant Director
DeHihns and Associate Director Harvey, engaged in sur-
veillance of its employees' union activities.
C. 4lleged Unlawful Statements
Three employees, including Debbie Gilliard, were dis-
charged in January by the Respondent. The following
day employees Barbara Thompson and Clara Morgan
questioned Head Nurse Brannigan about why they were
fired. Thompson testified Brannigan said they were fired
when they clocked in on each other's timecard and she
also knew Debbie had something to do with the Union.
She also mentioned Turner had something to do with the
union and was organizing and giving out information and
said they were not supposed to be talking about the
union on the floor and they could talk about it on their
lunch breaks or their breaktime but were not supposed to
say anything about it on the floor. Under cross-examina-
tion, however, Thompson admitted having stated in an
affidavit given to a Board agent that Brannigan had told
them the reasons why they were fired and then went on
and told them about how she thought Debbie was an or-
ganizer for the union.
Brannigan denied having made such statements attrib-
uted to her by Thompson. Morgan, called as a witness
by the Respondent, also corroborated Brannigan's testi-
mony by denying there was any discussion about the
Union or that the union was given as a reason for Deb-
bie's discharge.
I credit the testimony of Brannigan, corroborated by
Morgan, rather than Thompson who I discredit. Apart
from my observations of the witnesses in discrediting
Thompson her testimony was contradictory.
Barbara Thompson also testified about March when
some of the housekeeping personnel, including James
Floyd, were up on 4 main of the hospital where she was
assigned, Brannigan told her they were talking too much
and said she knew Floyd had something to do with the
Union and they were not supposed to talk to the house-
keeping personnel unless it was on their own time, or on
their breaks. Brannigan also said when they told the
housekeeping personnel about not coming up on the
floor and talking with them they were not supposed to
let them know she had said anything about it but to do it
in a roundabout way. Although Thompson stated there
was someone else with her at the time of the conversa-
tion she was unable to recall who it was.
i An surveillance occurring prior to November 2, 1978. would be
outside the l(bl period and therefore no iolation will be found
PROVIDENCE HOSPITAL 073
1074 DECISIONS ()F NATIONAl. LABOR REI.A'II()NS B()ARI)
Brannigan denied having made such statements and I
credit her denials rather than the testimony of Thompson
for reasons previously given.
D. Turners Written Warning and 3-Day Suspension
Turner was given a written warning and 3-day uspen-
sion for November 16, 19, and 20, 1978, by Assistant Di-
rector DeHihns, dated November 15, 1978, for the fol-
lowing reasons:
Was requested by K. Brown to do prep on Mr.
Henry Turner, open heart patient for Wednesday,
11/15/78. You refused to do prep stating that it was
no longer the morning orderlies responsibility to do
preps since there was a P.M. prep orderly to do
preps. Your job duties include preps. You were in-
subordinate to refuse to do an assignment given to
you by the Charge Nurse.
This written warning and suspension further stated this
was the third time in the past few weeks he had been
reprimanded about performance of duties and that his
performance of duties in a timely and professional matter
will be demanded or he will be terminated.
DeHihns testified she disciplined Turner because he
did not do a prep when asked. This was a toe-to-chin
prep to be performed on patient Henry Turner who was
going to have open heart surgery. This had been report-
ed to her by Kathleen Brown, a nurse on 2 east. Accord-
ing to DeHihns she then contacted orderly Clifford
Shirah herself and instructed him to prep the patient
which she stated he did.
Brown 6 testified after receiving a call from the Coro-
nary Care Unit (herein called CCU), to have a patient
transferred there for insertion of a Swan-Ganz catheter,
she instructed Turner, at which time she also believed
Shirah was present, the CCU wanted the patient trans-
ferred there and wanted him prepped first. However,
Turner's response was the morning orderlies did not do
the full prep and were only responsible for the Swan-
Ganz prepi 7 and when the afternoon orderly came on
he would do those preps.iS Brown, while acknowledg-
ing Turner was willing to and had no objections to doing
the Swan-Ganz prep, stated she did not push him be-
cause she was not sure if it should be done or not. Her
belief was Turner then went on and did the Swan-Ganz
prep although she did not see him do it.
Turner denied being requested by Brown to do a prep
that day or telling her prepping a patient was the after-
noon orderly's job. According to him, Brown asked him
and Shirah who was going to prep two patients. Brown
and Turner, for open heart surgery. After she mentioned
patient Brown had already been transferred to CCU, he
informed Shirah he would Prep Brown.19 However,
upon arriving at CCU the nurse, whose name he did not
'6 Brown was called as a witness by the General Counsel
? This involves shaving the patient's hair from the chin line to the
nipple line as opposed to a full-body prep
6Y The afternoon prep orderly worked from 6 to 10 p.m.
o T the extent the testimony of Turner ald Brown conflict, I credit
Brown who I find was a more credible witness
know, informed him the patient had already been
prepped.
Shirah testified on that occasion he received a call
from DeHihns to prep a patient on 2 east. However,
upon going to 2 east, Nurse Brown informed him the pa-
tient had been transferred to CCU. He then went to
CCU, accompanied by Turner, whereupon he observed
the doctors and nurses working on the patient who ap-
peared to have already been prepped for a Swan-Ganz
whereupon he returned to 2 east. Brown then told him
about another patient, named Turner, to be prepped. He
said he told Turner he was going to prep patient Turner
which he did for a Swan-Ganz.
Brown testified after talking to Turner she contacted
DeHihns informing her of the incident and questioning
her about whether the patients should be fully prepped
before they went, with DeHihns indicating they prob-
ably should. Upon mentioning to DeHihns there was not
a written policy to that effect, DeHihns said there would
be. Later that day, Brown stated DeHihns asked her if
she would write up Turner for the incident. However,
she refused saying she had been unsure of the policy and
did not feel she could write someone up for it and did
not feel anything had been done to warrant writing it up.
When DeHihns insisted she refused stating she didn't
think he had done anything wrong.
Dehihns, who acknowledged discussing the incident
with Brown, did not dispute her testimony.
DeHihns testified it had always been the orderlies job
to do preps and she had so instructed them.
Turner was called in the office and informed by De-
Hihns he was being suspended. According to Turner the
reason DeHihns gave was because he had refused to
prep two patients for open heart surgery which had been
reported to her by Brown. Although DeHihns refused
his request to call Brown she did call Shirah as requested
who came to the office. While Turner stated Shirah told
DeHihns he was the one Brown was talking to about the
prep when Turner walked up, Shirah's version was De-
Hihns asked him whether he had heard Turner refuse to
do a prep which he denied.
DeHihns acknowledged Turner had worked under her
supervision at least 7 years during which period she had
not given him any previous written reprimands and the
only oral reprimands she had given him involved being
rough on patients while giving them preps and not
weighing patients all of which occurred in the last 6
months of his employment.
While Turner stated he did not recall receiving any
disciplinary action prior to the union organizing cam-
paign, the Respondent's records reflect he had been
given a written reprimand by another supervisor on July
22, 1976.
E. Turner's Written Reprimand
Effective February 13, the Respondent instituted a
new procedure set forth in writing for its orderlies re-
quiring them during the week 20 to be stationed at the
2" During weekends, afternoons. ad night shifts the orderlies were to
be stationed at the Inforrmatlion Desk
PROVIDENCE HOSPITAL. 1075
nursing service office where they were to remain except
when answering calls assigned to them by that office and
for them to return there upon completion of such calls.
They were also required to fill in a logbook listing the
date of each call, where the call came from, the time
they left on the call, the time they returned from the
call, and the work they performed. While the procedure
stated an orderly would be cited if found loitering, no
other penalties were mentioned for violating this proce-
dure. No other written instructions were given to the or-
derlies regarding this procedure which was devised by
Associate Director Harvey.
On February 16, Turner was given a written repri-
mand by Assistant Director DeHihns which contained
the following reasons:
You are not filling out the book of orderly book
correctly. I will explain it in detail and expect you
to fill it correctly from now on.
DeHihns testified that that day someone 21 had called
and said they could not find the orderly, whereupon she
looked at the logbook to determine where Turner was
supposed to be but was unable to locate him. She then
called the floors and had Turner sent to the office to see
why he had not signed in on the logbook. DeHihns testi-
fied she told Turner he would have to sign in if he went
to a floor to do a procedure and he had to come back to
the office and sign in at that time, which he was not
doing.
Turner's version was that DeHihns told him he was
being reprimanded because he was not logging in all of
the calls at the time and coming back and doing it. When
he explained to DeHihns that Assistant Director Harvey
had informed him that if they were on a floor like 3 East
and got a call to the Progressive Coronary Unit (herein
referred to as PCU) or CCU and they were that close, to
go ahead and catch the call and then log them in later
when they came down which was what he was doing.2 2
DeHihns informed him when he went upstairs to catch
calls he was supposed to come right back down and log
them in on time. Upon mentioning that this took time
and he thought patient care was more important than the
logbook, DeHihns said that that was the way she wanted
it done.
I credit Turner rather than DeHihns. Apart from my
observation of the witnesses in discrediting DeHihns her,
overall testimony was both evasive and contradictory.
According to Turner on that occasion he was busy
and upon returning from CCU where he had answered a
call he was stopped by the nurse on PCU2 3 and instruct-
ed by her to help her put a patient, who had fallen, back
to bed. This occurred notwithstanding he inquired of the
nurse whether he could go log in his calls and then come
back at which time she told him it was a stat call. 24
z The person was not identified.
22 Orderly Shirah also stated they were told by Assistant Director
Harvey if they got an emergency or stat call they were to help the nurse
before they went to log the other calls in Harvey did not deny making
such statement or telling Turner what he related to DeHihns.
23 Turner could not identify the nurse
24 A stat call is an emergency call requiring the employee to go right
then and do it
and instucted him to go to the office even though he in-
formed her what he was doing at the time.
Although DeHihns first testified the reprimand was
given for an incident which occurred around 12:45 p.m.
about which she had talked to Turner immediately after-
wards, she subsequently stated it was given for all the
improper entries or lack of entries by Turner reflected in
the logbook for that date.2 5
The logbook reflects, while most of the calls answered
by Turner that day contained the required information,
there were a number of calls where proper entries were
not made.
Turner's explanation at the hearing for not filling out
the log properly that day was because he had been
stopped by the nurse to help and he also had answered
several calls before that and explained some of the en-
tries were not made because he was busy or forgot.
Prior to this time DeHihns had not spoken to Turner
about the new log procedure which was first used by
Turner on the day before, February 15.
Orderly Shirah denied he was ever disciplined for not
completing the log before answering emergency calls.
He also stated when Assistant Director Harvey went
over the procedure with him he was not warned about
being reprimanded for not filling out the log properly.
Another former orderly, Robert Traylor, 26 testified he
did not always fill out the log after every call and some-
times would not log the calls. The logbook for August
20 shows the specific times calls were not listed for all of
Traylor's calls that day. Although Traylor stated his Su-
pervisors Fowler and Assistant Director Harvey spoke
to him several times about not filling out the log proper-
ly the only reprimand he was given for not documenting
his calls in the logbook as reflected by the Respondent's
records occurred on April 19 and this was only one of
several other reasons listed for that reprimand.
The Respondent's logbook for February 16 shows
Shirah did not record one of the times he returned from
a call and Robert Traylor did not record two times that
he returned from calls. However, neither of them was
given a reprimand.
F. Turner's Discharge
Turner was discharged on March 7. On that occasion
he was called into the office by Assistant Director De-
Hihns and Personnel Director Long and informed he
was discharged after he refused an offer by them to
resign. They also discussed the reasons for his discharge:
His termination notice listed three reasons for his dis-
charge: (1) Failure to follow instructions to report to the
orderly stations when not on assignments; (2) failure to
respond to calls on 3-3-79 (Saturday); and (3) falsifica-
tion of orderly log.
Assistant Director DeHihns, who testified she made
the decision to terminate Turner, stated the first reason
related to the February 16 reprimand discussed, supra,
while the latter two reasons related to incidents occur-
ring on March 3. According to her she also took into
25 Turner's last entry was 2:59 p m.
'6 Traylor was employed by the Respondent from Septemher 1978 to
September 1979
PROVIDENCE HOSPITAL 075~~
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consideration two other written reprimands 2 7 previously
issued to Turner.
The March 3 incidents concerned Turner's alleged fail-
ure to answer his pages and falsifying entries in the log-
book regarding his calls between the approximate hours
of II a.m. and 1 p.m. Neither DeHihns, who made the
decision to discharge Turner, nor Personnel Director
Long, who investigated these incidents and recommend-
ed that Turner be discharged, worked on March 3. They
relied on information furnished by other employees or
company records.
According to DeHihns, upon returning to work on
Monday, March 5, and learning of the March 3 incidents
involving Turner, she reported the matter to Personnel
Director Long and mentioned they would have to termi-
nate Turner. Long stated he then investigated these inci-
dents.
Estelle Kelly, an LPN on PCU, testified on March 3,
acting on instructions of Dr. Neal, she placed a call
about 12:05 p.m.28 through the switchboard operator for
an orderly for purposes of having him insert a Foley
Catheter in a patient. About 15 or 20 minutes later after
Turner, who was the only orderly on duty, did not re-
spond, Ward Clerk Perry stated she placed another call
with the operator for an orderly. When there was no re-
sponse she placed a stat call2 9 for an orderly with the
operator whereupon she stated Turner called and in-
quired whether he could finish eating his lunch. Upon in-
forming Turner he could not, he immediately reported to
the floor which she placed as occurring about 12:30 p.m.
Perry stated she informed Head Nurses Brannigan and
Simmons about not being able to get Turner to answer
the page.
Head Nurse Simmons testified she was present when
Perry placed two calls for Turner about 12:25 and 12:30
p.m. Head Nurse Brannigan, who was relieving Assistant
Director DeHihns that day, stated she informed Perry to
call the operator and keep paging Turner after Perry in-
formed her she had been trying to get Turner for a half
an hour.
Turner testified he went to lunch about 11:30 a.m., al-
though he was not certain of the time. Upon starting to
eat he got a call to go to CCU to put a patient to bed.
However, upon his arrival there he learned the patient
had already been put to bed so he returned to the cafete-
ria to finish eating. While eating his lunch he received a
call to go to PCU. Upon calling PCU to see what they
wanted, the nurse30 who answered the telephone in-
formed him he was wanted in room 14. However, she
told him pursuant to his inquiry she guessed he could
finish eating first.a3 A few minutes later he received an-
27 Turner was given a reprimand, dated October 28, 1978, for being
away from his work area and another reprimand dated October 30, 1978,
for taking excessive time on two coffeebreaks.
28 Ward Clerk Joanne Perry estimated Kelly placed the call about 12
noon.
29 Kelly stated she heard Perry place two calls for an orderly.
30 Turner could not identify the nurse he talked to. While Ward Clerk
Perry stated she did not remember anyone else answering the two phones
while she was at the desk, she acknowledged there were other nurses and
nurses aides in the area that day.
31 According to Turner and undenied by Associate Director Harvey,
Harvey had informed the orderlies if they got a call during lunch they
could finish eating unless it was a stat or Mayday call.
mons informed him Dr. Neal wanted a patient in room
14 catheterized and it was a stat call and for him to
come right up which he did. Turner did not know what
time he arrived.
Turner then inserted the Foley Catheter in the patient,
cleaned up the patient, and reported the results to the
nursing station. According to Turner he then washed up
and returned to the cafeteria where he finished eating
and then smoked a cigarette. He estimated it was about
12:10 p.m. when he returned to the cafeteria and was a
little before or after 12:30 p.m. when he left there. How-
ever, he was not certain of the times.
Nurse Kelly testified it was about 12:45 p.m. when
Turner completed inserting the Foley Catheter and re-
ported it to her. Her entry on the patient's record re-
flects the catheter was inserted at 12:35 p.m. and she esti-
mated it would have taken Turner an additional 5 to 10
minutes to complete his work.
Several witnesses presented by the Respondent testi-
fied concerning various times they observed Turner in
the cafeteria at lunch that day and one of them, Head
Nurse Simmons, further testified she observed Turner re-
ceive some pages without answering them.
Ward Clerk Perry stated she went to lunch from 11 to
11:30 a.m. and when she was about half way through
eating her lunch 3 2 she saw Turner there.
Head Nurse Brannigan stated she saw Turner in the
cafeteria at 11:30 a.m. and again about 12:55 p.m.3 ` but
acknowledged she did not know whether he was eating.
Head Nurse Simmons testified she observed Turner in
the cafeteria at 12:40 p.m. with a group of people and
without any food in front of him. She stated between
12:40 and 1 p.m. Turner received these different calls on
his beeper 34 but he did not move until he received the
third call at which time he left the cafeteria about 1:05
p.m. Her statement that it was Turner's beeper she heard
rather than somecne else's was based on her seeing him
reach to turn it off.
However, Staff Nurse Sally Smyrl, another witness
presented by the Respondent, testified she went to lunch
from 12:30 to I p.m. and when she arrived at the cafete-
ria Turner was there sitting at a table although she did
not remember if he was eating. About 10 to 15 minutes
later she stated Turner's beeper went off whereupon
Turner got up and left the cafeteria and then returned
about 5 to 10 minutes later3 5 and sat at the table talking
to someone and smoking.
Turner testified after lunch he received a call from
Head Nurse Artlip 3 ° on 2 main to help a patient in
Room 209 which he did. After completing that call he
received a call that Head Nurse Brannigan wanted to see
him but while on the way he received a call to go to 2
east. Before going to 2 east he stopped by the cafeteria
"2 Perry did not testify exactly what time she saw Turner
': On the latter occasion Simmons had requested Brannigan to come
down and observe Turner in the cafeteria.
a4 The beeper signals the person carrying it to call the operator to
answer a page.
i:x While Personnel Director Long contended Smyrl placed the time
by a clock in the cafeteria which was fast, Smyrl did not testify regard-
ing what she based her time estimates on
36 Artlip did not testify
PROVIDENCE HOSPITAL 1077
about 1 p.m. to see if Brannigan was there, but she was
not whereupon he went to 2 east and put a patient, Dr.
Epting, to bed and reported it to the nurse.3 7
Personnel Director Long testified he concluded
Turner falsified his log based on the results of his investi-
gation. The first log entry in question shows Turner put
a patient back to bed on 2 east between 11:10 and 11:20
a.m. According to Long this conflicts with Perry's state-
ment she saw Turner in the cafeteria at 11:15 a.m. Fur-
ther, Long stated he checked with the head nurse"" on 2
east who informed him no patient had any problems at
that time and the patient report for that floor doesn't re-
flect a patient was put to bed about that time, although it
shows at 10:30 a.m. a patient was up in a chair for ap-
proximately 2 hours. The next log entry shows Turner
put a patient back to bed on I East returning at 11:40
a.m. However, Long stated while the log of 1 east3 9 in-
dicated Turner had been there about 11 a.m., there were
no patient records to show he had been there at 11:40
a.m. or that they had any calls in for him. The next entry
on Turner's log shows between 12:20 and 12:45 p.m. he
inserted the Foley Catheter in a patient in PCU. Accord-
ing to Long, Ward Clerk Perry had made the stat call to
Turner about 12:20 or 12:25 p.m. and Smyrl had noted
she had seen Turner in the cafeteria at 12:30 p.m. from
which he concluded Turner must have left the cafeteria
about 12:30 p.m. to insert the Foley Catheter. Further
Simmons had stated she saw Turner in the cafeteria at
12:40 p.m.
Turner, while acknowledging he may have gotten
some floors wrong or listed things in the wrong place,
denied he refused to answer any calls or intentially put
any false information in the log.
Following the discharge conversation on March 7,
Long accompanied Turner to the locker room. While
there, Turner stated Long said he was sorry he had to
fire him. Upon mentioning to Long he was probably
being pushed, Long told Turner he was beinq pushed
some. Long denied making such statements.
G. Analysis and Conclusions
The General Counsel contends the Respoddent violat-
ed Section 8(a)(1) of the Act by engaging in surveillance
of its employees' union activity 40 and violated Section
8(a)(3) and (1) of the Act by discriminatorily issuing a
written warning and 3-day suspension and a written rep-
rimand to Turner and thereafter discharged and refused
to reinstate him all because of his union activities. The
Respondent denies having violated the Act and asserts its
actions taken against Turner were for cause rather than
discriminatory reasons under the Act.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides in pertinent part:
3 Turner could not identify the nurse
a8 This head nurse did not testify.
39 The log was not offered as evidence
40 Although the General Counsel also contends certain unlawful state-
ments were made to employees regarding the union, such statements, for
reasons discussed supro, were not established by credible evidence and
warrant no further discussion.
"It shall be an unfair labor practice for an employer . . .
by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encour-
age or discharge membership in any labor organization
Having found, supra, that from November 2. 1978.
through February 1979, the Respondent, through its su-
pervisors, Assistant Director DeHihns and Associate Di-
rector Harvey, engaged in surveillance of its employees'
union activities, I find such conduct interfered with, re-
strained, and coerced employees in the exercise of their
rights guaranteed in Section 7 of the Act and thereby
violated Section 8(a)(1) of the Act.
The remaining issues to be resolved are whether the
actions taken against Turner were because of his union
activities or for cause.
Under the law if an employee's discharge is motivated
by antiunion design such discharge is violative of the
Act even though the employee has performed misdeeds
which would warrant his dismissal. Frosty Morn Meats,
Inc. v. V.L.R.B., 296 F.2d 617 (5th Cir. 1961). Direct
evidence of discriminatory motivation is not necessary to
support a finding of discrimination and such intent may
be inferred from the record as a whole. Heath Interna-
tional, Inc., 196 NLRB 318 (1972).
The findings, supra, establish Turner was an active
union adherent. His union activities were well known to
the Respondent which had also engaged in unlawful sur-
veillance of his activities. Up until the advent of the
union organizing campaign Turner had enjoyed a good
work record during his approximately 8 years of employ-
ment with the Respondent as an orderly. Most of this
time was spent under the supervision of Assistant Direc-
tor DeHihns who had not issued him any written warn-
ings previously. However, on November 15, 1978,
during the Union's organizing campaign and the period
in which DeHihns was engaged in unlawful surveillance
of Turner, she issued him a written warning and 3-day
suspension. Although DeHihns asserted the reason such
action was taken was because Turner had refused to do a
prep based on information reported to her by Nurse
Brown, I am not persuaded this was the real reason
when considering the circumstances under which it was
given and since Brown herself did not feel there was any
basis for writing Turner up for the incident and she had
rejected DeHihns' efforts to have her do so.
On February 16, DeHihns gave Turner a written rep-
rimand. Although she contends the reason was because
he did not fill the orderly log cut properly such reason is
contrary to the evidence which establishes the new log
system had just been put in effect, no prior warnings had
been given to the orderlies about not filling it out cor-
rectly, and two other orderlies, Shirah and Traylor, had
made errors on their log entries for that same day with-
out any disciplinary actions being taken against them
thus showing disparate treatment towards Turner.
Insofar as Turner's discharge is concerned, the evi-
dence, supra, establishes he was discharged on March 7
by DeHihns. Her reasons given for his discharge were
his failure to respond to calls and falsifying his entries on
the orderly log on March 3 and his February 16 written
PROVIDENCE HOSPITAL 077
107 DECISIONS OF NATIONA. LABOR RELATIONS BOARD
reprimand. Additionally, she stated she took into consid-
eration two prior reprimands. With respect to his refusal
to answer calls on March 3, it is undisputed that Turner,
upon receiving a stat call, responded immediately by
going to PCU and inserting a Foley Catheter in a pa-
tient. Prior to this, he was having his lunch and, even if
the operator, who did not testify, had paged him twice
previously as the Respondent contends, these were not
stat calls and Associate Director Harvey had informed
the orderlies if they got a call during lunch they could
finish eating unless it was a stat call. To the extent Head
Nurse Simmons claimed she observed Turner receive
calls while in the cafeteria that day without answering
them, her testimony was directly contradicted by an-
other one of the Respondent's witnesses, Staff Nurse
Smyrl, whose testimony was consistent with Turner's
denial, which I credit, that he failed to answer any calls
that day.
The claim Turner falsified his log entries, which
Turner also denied, rests upon the times the Respond-
ent's witnesses placed Turner in the cafeteria that day
and upon what Long stated was reported to him by the
Head Nurse on 2 east, and his examination of the patient
report for 2 east and the patient records and log of 1
east. Since the Respondent's own witnesses gave con-
flicting statements about the time they observed Turner
in the cafeteria, the Head Nurse on 2 east did not testify,
and no records except the patient report for 2 east were
offered as evidence in support of the testimony of Long,
who himself had no firsthand knowledge of the March 3
events, I find such evidence insufficient to prove Turner
falsified his log entries as alleged. Long's investigation of
these incidents could hardly be deemed objective since
he was informed prior to beginning the investigation by
DeHihns that she wanted Turner terminated and Long
himself had previously solicited Walter Troutman to
attend and report on union meetings evidencing his own
union animus as well as acquiring knowledge of Turner's
involvement with the Union.
Based on the foregoing evidence, including Turner's
union activities of which the Respondent had knowledge,
the Respondent's union animus, the unlawful surveillance
of employees' union activities by the Respondent which
directly involved Turner, Turner's good work record
over his long period of employment with the Respondent
prior to the advent of the Union, and having rejected the
Respondent's reasons for issuing Turner the written
warning and 3-day suspension and the written reprimand
and for discharging him on March 7, 1 am persuaded and
find that the Respondent discriminatorily issued Turner a
written warning and 3-day suspension dated November
15, 1978, issued Turner a written reprimand dated Febru-
ary 16, and discharged Turner on March 7 and thereafter
refused to reinstate him all because of his union activities
thereby violating Section 8(a)(3) and (1) of the Act and
that the reasons advanced by the Respondent to justify
such actions were mere pretexts to conceal the real dis-
criminatory reasons.
IV. [HtI lFFI.CI O ITH UNFAIR LABOR PRACIICIE
UPON COMMERCIE
The activities of the Respondent set forth in section
III, above, found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
spondent described in section I, above, have a close, inti-
mate, 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 thereof.
CONCI.USIONS O: LAW
1. Providence Hospital is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union, 1199, Providence Workers Organizing
Committee, National Union of Hospital and Health Care
Employees, RWDSU/AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By engaging in surveillance of its employees' union
activities, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act and has engaged in
unfair labor practices in violation of Section 8(a)(l) of
the Act.
4. Dy discriminatorily issuing Herbert Turner a writ-
ten warning and 3-day suspension dated November 15,
1978, and a written reprimand dated February 16, 1979,
and by discharging Herbert Turner on March 7, 1979,
and thereafter refusing to reinstate him all because of his
union activities, the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and 3) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action to effectuate the Act.
Accordingly, the Respondent shall be ordered to ex-
punge from its employment records the written warning
and 3-day suspension dated November 15, 1978, and the
written reprimand dated February 16, 1979, issued to
Herbert Turner herein found to be unlawful and to offer
immediate and full reinstatement to Herbert Turner to
his former job or, if that job no longer exists, to a sub-
stantially equivalent job, without prejudice to his senior-
ity and other rights and privileges previously enjoyed,
and to make him whole for any loss of earnings and
compensation he may have suffered as a result of the dis-
crimination against him in his employment herein found
by discriminatorily suspending him for 3 days on No-
vember 15, 1978, and by discriminatorily discharging him
on March 7, 1979, and thereafter refusing to reinstate
him. Backpay shall be computed in the manner pre-
scribed by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest as prescribed in Florida
PRO)VIDENCE HSPITAL
Steel Corporation, 231 NLRB 651 (1977). See, generally,
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
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:
ORDER 41
The Respondent, Providence Hospital, Columbia,
South Carolina, its officers, agents, successors and as-
signs, shall:
1. Cease and desist from:
(a) Engaging in surveillance of its employees' union
activities.
(b) Discouraging activities in 1199, Providence Work-
ers Organizing Committee, National Union of Hospital
and Health Care Employees, RWDSU/AFL-CIO, or
any other labor organization, by warning, reprimanding,
suspending, discharging, refusing to reinstate, or in any
other manner discriminating against employees in regard
to their hire or tenure of employment, or any other term
or condition of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Expunge from its employment records the written
warning and three-day suspension dated November 15,
1978, and the written reprimand dated February 16,
1979, issued to Herbert Turner herein found to be unlaw-
ful.
(b) Offer immediate and full reinstatement to Herbert
Turner to his former job or, if that job no longer exists,
to a substantially equivalent job without prejudice to his
seniority and other rights and privileges previously en-
joyed, and make him whole for any loss of pay or other
compensation he may have suffered by reason of the dis-
crimination against him herein found by suspending him
for three days on November 15, 1978, and by discharg-
ing him on March 7, 1979, and thereafter refusing to re-
instate him in the manner set forth in that section of this
Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze and determine the amount of backpay
due under the terms of this Order.
(d) Post at its Columbia, South Carolina, facility copies
of the attached notice marked "Appendix."42 Copies of
41 In the event no exceptins are filed as provided hby Sec 10246 of
the Rules and Rgulations of the National L.abor Relations Hoard, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules aind Regulations, be adopted by the Board and
become its findings, conclusions, and Order and all objections thereto
shall be deemed *aised for all purposes
42 In the eent that this Order is enforced bh a Judgment of the
United States Court of Appeals. the word, in the notice reading "Posted
said notice, on forms provided by the Regional Director
for Region Il, shall, after being duly signed by the Re-
spondent's authorized representative, be posted immedi-
ately upon receipt thereof, and be maintained by it for 6(
consecutive days thereafter. in conspicuous places. in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken bh the
Respondent to insure that said notices are not altered.
defaced, or covered by any other material.
(e) Notify the Regional Director for Region II11, in
writing, within 20 days from the date of this Order. what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaint
be, and hereby is, dismissed insofar as it alleges unfair
labor practices not specifically found herein.
B5 Order if the National l.abor Relations Hoard" lshall read "',si-sid
i'tursutanl to a Judgement of the United States Court of Appeal, enIforciig
an order of the National l.abor Relationl IBoard
APPENDIX
NoTricE To EPI OYl I.s
Pos-ti l) BY ORI)IR Ot IHI
NATIONAI LABOR Rli.l I'IONS BORDI)
An Agency of the United States Government
W: W11.1 NO'I engage in surveillance of our em-
ployees' union activities.
WE WItl.. NOT warn, reprimand, suspend, dis-
charge, refuse to reinstate, or otherwise discriminate
against our employees because of their membership
in, sympathies for, or activities on behalf of 1199,
Providence Hospital Workers Organizing Commit-
tee, National Union of Hospital and Health Care
Employees, RWDSU/AFL-CIO, or any other
labor organizanization.
WE WIl.l NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed them by Sec-
tion 7 of the Act.
WE WILt. expunge from our employment records
the written warning and 3-day suspension and the
written reprimand issued to Herbert Turner, herein
found to be unlawful.
WE WILL offer immediate and full reinstatement
to Herbert Turner to his former job or, if that job
no longer exists, to a substantially equivalent jobh.
without prejudice to his seniority and other rights
and privileges previously enjoyed, and make him
whole for any loss of pay and other compensation
he may have suffered by reason of our discrimina-
tion against him, with interest.
PROVIDENCE HOSPITAI.
10()7