Putnam Community HospitalDownload PDFNational Labor Relations Board - Board DecisionsApr 23, 1976223 N.L.R.B. 1066 (N.L.R.B. 1976) Copy Citation 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Putnam Community Hospital and District 1199, Na- tional Union of Hospital and Health Care Employ- ees, RWDSU, AFL-CIO. Case 2-CA-13752 April 23, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On January 20, 1976, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief. 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, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.' ORDER APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportuni- ty to present evidence and cross -examine witnesses, the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice. WE WILL offer full reinstatement to Rita Sav- nik, with backpay plus 6-percent interest. WE WILL NOT lay off or otherwise discriminate against any of you for supporting District 1199, National Union of Hospital and Health Care Employees , RWDSU , AFL-CIO, or any other union. WE WILL NOT increase hours of work or grant any other benefit to any employees to discour- age support of a union. WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act. 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, as modified below and hereby orders that the Respondent, Put- nam Community Hospital, Carmel, New York, its of- ficers , agents , successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(c) of the recommended Order: "(c) In any other manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board 's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd . 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In his recommended Order and notice the Administrative Law Judge used the narrow cease -and-desist language. "like or related." rather than the broad injunctive language . in any other manner ." the Board traditionally provides in cases involving serious 8(aX3) discrimination conduct, such as that found here . See N.LR.B. v. Entwistle Mfg. Co.. 120 F.2d 532, 536 (C.A. 4, 1941); Electrical Fittings Corporation, a subsidiary of I-T-E Imperial Corpo- ration. 216 NLRB 1076 (1975). Accordingly. we shall modify the Order and notice to require Respondent to cease and desist from in any manner in- fringing upon employee rights. PUTNAM COMMUNITY HOSPITAL DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: This case was heard at New York, New York, on October 30- 31, 1975.' The charge was filed by the Union on May 30 (amended at the hearing), and the complaint was issued on July 10. On May 20, 1 day after part-time outpatient receptionist Rita Savnik attended a union meeting at which her hus- band spoke and offered their home as the next meeting place, the Hospital restored the hours of full-time employ- ees and made adjustments in the hours of most of the part- time outpatient receptionists. A day later, it laid off Savnik, a union supporter at the Hospital. The primary issues are whether the Hospital, the Respondent, (a) restored previ- ously reduced hours to induce employees to abandon their union support, and (b) discriminatorily laid off Savnik be- cause of her union activity, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Hospital, I make the following: All dates are in 1975 unless otherwise stated. 223 NLRB No. 164 PUTNAM COMMUNITY HOSPITAL 1067 FINDINGS OF FACT 1. JURISDICTION The Hospital , a New York nonprofit corporation, is en- gaged in the operation of a general care hospital in Carmel, New York, where it annually has gross revenues in excess of $1 million and purchases goods valued in excess of $50,000 directly from outside the State . The Hospital ad- mits , and I find , that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. suspect , the business at the Hospital was improving; this was a regularly scheduled meeting of the finance commit- tee; and some thought had already been given to restoring the full-time hours . I find that the General Counsel has failed to prove that the action restoring the full-time hours would not have been taken at that time , even in the ab- sence of the union organizing drive . Accordingly, I dismiss the complaint insofar as it alleges that the Hospital re- stored the full-time hours to induce employees to abandon their union support. There remains the question of whether Controller Borda was unlawfully motivated when he laid off Rita Savnik and divided her hours among remaining part-time outpatient receptionists. 11. ALLEGED UNFAIR LABOR PRACTICES A. Restoration of Full-Time Hours In the fall of 1974, the Hospital opened a new wing and hired a number of new employees to handle a projected increase in business . The increase failed to materialize as projected , and the Hospital decided in January to cut its payroll by 20 percent to overcome an operating deficit. In several of the departments , employees were laid off. In the business office (including the emergency room desk, where outpatient receptionist Rita Savnik worked), Controller Timothy Borda decided to cut the hours by 20 percent rather than lay off any of the part-time employees. He met with the employees , explained the Hospital's poor financial condition , and discussed the alternative of laying off "the part-timers and possibly the bottom of the full- timers [the recently hired full-time employees ]." He stated that he "felt his part-time workers were very valuable, just as valuable as the full-time workers since they covered shifts that no one else wanted to cover ." (The outpatient desk basically was covered daily from 7 a.m. to 11 p.m.) The full-time employees agreed to accept a reduction in hours (from 40 to 32 hours a week) "so that all of us could stay employed." By April , there was a considerable improvement in the inpatient business , and the operating deficit was eliminat- ed. However, the outpatient business (through the emer- gency room) continued to lag. The number of emergency room visits went from 1,443 in January and 1,361 in Febru- ary, to only 1,537 in March and 1,633 in April . In May, though , there was a sizeable monthly increase . The emer- gency room visits increased over 25 percent, to 2,070. About the middle of May, before outpatient receptionist Ann Giarratano went on vacation , she asked Controller Borda "if we would be going back full-time ." He answered that they would be, "possibly in June." About a week later, though , the Hospital's finance committee met and decided to restore the full-time hours immediately. The committee held the meeting on May 20 , the morning after the Union held its second meeting of hospital employees. The General Counsel contends that this sudden restora- tion of the hours was designed to undercut the Union's organizing drive . Although the timing of the action (taken the morning after employees complained about the re- duced hours at the May 19 union meeting) may appear B. Savnik 's Alleged Discriminatory Layoff 1. Her union activity Rita Savnik assisted in the union organizing at the Hos- pital both before and after the May 19 union meeting. Shortly after the Union 's first organizing meeting on April 17, she began telling other outpatient receptionists (cash- iers) at lunch and coffeebreaks that her husband belonged to the Union , that "I knew first hand that it was a good union," and that there was a "great improvement in his hospital where he worked." Controller Borda was aware that the May 19 union meeting was being held . On that morning , during the day, some of the employees in the business office discussed the Union with Borda, and also discussed with him a leaflet announcing the union meeting that evening . Borda told them that they should go to the meeting and find out about the Union. About 10 of the business office employees (in- cluding Savnik) did attend the meeting where James Sav- nik, a union delegate at another hospital, was introduced as Rita Savnik's husband. He spoke for the Union, and of- fered their home for the Union's next meeting place. At the meeting, Rita Savnik asked "if the Union gave part-time workers benefits," because "the part- time workers had no benefits at all at Putnam Community Hospital." The next morning, Tuesday, May 20 , outpatient recep- tionist Elizabeth Barrett "kept asking me about the meet- ing, what went on at the meeting." She gave Barrett the union literature she had received at the meeting. (Barrett did not testify.) On Wednesday , May 21 (as Savnik also credibly testi- fied), Controller Borda advised her by telephone that she was not to come in on Thursday (when she was assigned to work as a vacation relief), telling her , "I have drawn up a new schedule and you are not included . . . I find I am overstaffed by one girl on the desk. Since you are the last one on the totem pole , you are the first to go." After learn- ing that she was the only one being laid off, she asked if it had anything to do with her going to the union meeting. He answered no, stating, "I have no way of knowing what went on at the union meeting. It has nothing to do with that." (I discredit Borda's version of the telephone conver- sation . He testified that he "attempted to explain the situa- tion," but "the conversation became a little heated," Sav- 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nik used some foul language, and "I told Mrs. Savnik as far as I was concerned the conversation was ended." As a wit- ness, Borda appeared to be less than candid , whereas Sav- nik impressed me most favorably as an honest witness, with a good memory.) About May 22, Savnik telephoned Controller Borda and told him she felt that she was laid off because of her union activities and that she was filing charges with the Board. As she credibly testified, Borda responded, "I laid you off be- cause I felt that I didn 't need you and no union is going to tell me how to run my department." [Emphasis supplied.] On direct examination , Borda claimed that only Savnik, and not he, referred to the Union in this conversation. He then added, "I didn't even know about a union. I didn't know any relationship of unionism . It never entered my mind at that point. It was strictly business." [Emphasis supplied.] Later, on cross-examination , when he was asked about this com- plete denial of any knowledge about the Union, he changed his testimony. He denied knowledge of "anyone who attended or anything that was discussed" (at the May 19 union meeting), and admitted , "Of course , everyone in the hospital knew that there was union activity going on." On further cross-examination , he admitted that there had been a discussion (in his office on May 19) "about a leaflet for the union meeting that night," and that he knew that a union meeting was to be held then. On redirect examina- tion, Borda denied knowing that the meeting had been held, denied being told who attended, and denied any knowledge of Savnik's union activity. Under all the circumstances, including Borda's state- ment to Savnik on May 21 that "no union is going to tell me how to run my department," I find that Borda was aware of Savnik's union support and that he had been in- formed by one or more of the outpatient receptionists, or by other business office employees, about what had tran- spired at the May 19 union meeting (contrary to Borda's denials). 2. Decision to terminate Savnik Because of the increasing emergency room visits (over 25 percent more in May than in April), Controller Borda de- cided to increase the total receptionist hours on the outpa- tient desk from 147-1/2 (to where the hours had been cut from 183-1 /2 in January) to 159 hours a week . These add- ed hours would not only permit the restoration of 8 hours (on Wednesday) to the one full-time receptionist , but also permit a second receptionist on Sunday morning. (Savnik had been working alone on Sunday morning . She reported to work at 7 a.m. on Sundays , Mondays , and Tuesdays.) At the outpatient desk , there were Savnik and five other part-time receptionists whose hours had been cut back 20 percent in January . However, the finance committee had not decided to restore the hours of part-time employees. Executive Director Ambrose LaVigne testified that, at the May 20 meeting , the finance committee 's decision was to restore the full-time employees ' 40 hours a week and to "try and hold the line where we were during the cutback as well as we could without any additional hours and see if we could manage." (The hours had been cut in the housekeep- ing and dietary departments , as well as in the 26-employee business office, which included the 7-employee outpatient desk.) Future increases in emergency room visits were expect- ed, particularly in the summer months. (By August, the visits increased another 21 percent, from 2,070 to 2,513 visits .) As explained to the outpatient receptionists in Janu- ary, Controller Borda considered the part-time reception- ists "just as valuable as the full-time workers since they covered shifts that no one else wanted to cover." Addition- al work was needed to be done on Sunday, and not all of the part-time receptionists were available for Sunday work. In fact , one of them, Marie Mullamphy, had been transfer- red to the outpatient desk from another position "because I couldn't work on the weekends most of the time." Previ- ously in January, before changing their hours, Borda had met with the employees in an effort to keep all the part- time employees. Notwithstanding these facts, Controller Borda suddenly decided on May 20 (1 day after Savnik's and her husband's active participation in the May 19 union meeting) to termi- nate her , and to reschedule the other part-time outpatient receptionists, without any prior consultation with them. The timing and circumstances of the decision clearly reveal a discriminatory motivation on the Hospital's part. 3. Evidence of discriminatory motivation At the time of the May 20 decision to terminate Savnik, the one full-time outpatient receptionists, Ann Giarratano, had begun her 2-week vacation, and Savnik and other part- time outpatient receptionists were working extra hours in her place. If there had been no resolve to get the union activist out of the Hospital immediately, there would have been good reason at least to defer Savnik's termination until June 2, when the vacation was over. As it was, the remaining five part-time receptionists had to replace both Giarratano and Savnik-two of the five part-time employ- ees working 9 to 10 hours a day. Controller Borda claimed that he had planned "to sit down with Mrs. Savnik" and let her continue working through the May 26 holiday "and then terminate her employment." He claimed that he de- cided "to give her my decision" immediately when he learned that part-time receptionist Ellen O'Connor had ac- cidentally seen the new schedule and had asked, "Where is Rita's hours." Even if such an explanation were plausible (and were credited, contrary to the credited account given by O'Connor, who did not work on May 20 or 21 until 3:30 p.m.), it does not explain why he drafted the new schedule on May 20 to go into effect "that next Tuesday" (May 27), when the part-time receptionists were working extra hours as vacation reliefs, preventing them from beginning work on a new regular schedule. Moreover, Controller Borda's explanation that he was merely restoring reduced hours is belied by the work schedules in evidence. He claimed: A....I said [to myself], well, let's see what happens if I start with my oldest employees in that area and give back the hours before the cutback. I gave [full- time employee] Ann [Giarratano] her hours, and I went down the line, and we came to the 159 hours, PUTNAM COMMUNITY HOSPITAL 1069 and I stopped, and, unfortunately, there was need for one less employee in that department. Unfortunately, or fortunately, or unfortunately that employee was my newest employee which was Mrs. Savnik, and I de- termined she would have to be terminated or laid off. The work records in evidence , beginning on June 2 (the first week after Giarratano's vacation), show that the re- duced hours (from 30 to 24) of receptionist Frieary were not restored. She continued to work 24 hours a week. Fur- thermore, on June 2, receptionists O'Connor was assigned to work on Monday morning (replacing Savnik), requiring her to work 4 instead of 3 days a week, for a total of 26-1/2 hours. She had been working 3 days a week: 21-1/2 hours a week before the January cutback and 17-1/2 hours there- after . Thus, in order to cover 1 of Savnik's 3 days of work a week, O'Connor was assigned to work an extra day and a total of 5 hours a week in excess of what she had worked before the January cutback. Also, in order to cover Savnik's work on Tuesday, it was necessary for receptionist Barrett to work an extra day each week. Before the Janu- ary cutback, she worked 8 hours a day, 4 days a week. After Savnik was terminated and Giarratano returned from vacation, Barrett's hours were cut to 6 or 6-1/2 a day, Wednesday through Saturday, in order for her to work 6- 1/2 hours on Tuesday. Finally, receptionist Foster, who worked on Saturday and Sunday and who worked •16 hours before and 12 hours after the cutback, worked 8-1/2 hours on Saturday and 9-1/2 hours on Sunday-2 hours in excess of her former hours. Thus, Controller Borda was not merely restoring the re- duced hours of the part-time employees. Frieary's hours remained the same : O'Connor's and Foster's hours were increased beyond what they were before the cutback; and O'Connor and Barrett worked an extra day each week in order to cover Savnik's assignment on Monday and Tues- day. It is undisputed that Borda suddenly decided to termi- nate Savnik and to distribute her hours among other part- time outpatient receptionists, without first consulting with the employees involved as he had done in January (before the advent of the Union) prior to changing their hours. Moreover, the fixed determination to rid the Hospital of union activist Savnik is revealed by the Hospital's actions when replacing her on Sunday became difficult. Savnik had been the only receptionist working on Sunday morn- ing, and Controller Borda decided that two receptionists were needed then. He filled one of the Sunday assignments by scheduling Foster (who had been working on Sunday from I to 5 p.m.) to work apparently 8 hours on Sundays, from 9 a.m. to 5:30 p.m. However, the hospital had nobody else to work on Sunday morning . Instead of even offering Savnik the opportunity at least to continue working on that day (or also on Monday and Tuesday, instead of assigning those extra days to O'Connor and Barrett), the Hospital required receptionist Mullamphy (who had transferred to the outpatient desk in order not to work on weekends) either to work on Sunday morning or to be discharged. It is undisputed that Supervisor Rebiglia originally informed Mullamphy that if she could not come in at 7 a.m. on Sunday, "I would have to resign ," and that Rebiglia said she "would give me a few days to think about it." Thereaf- ter, Borda explained to Savnik that "they made this new schedule and he needed someone for that morning and I was the only one left." However, he permitted her to come in at 9 a.m. instead of 7 a.m., and assigned Foster to begin work an hour and a half earlier, at 7:30 instead of 9 a.m. (Under this compromise, the Hospital was able to persuade Mullamphy to work on Sunday morning-avoiding the ne- cessity of rehiring Savnik. However, Foster would be work- ing-a shift of 9-1/2 hours for the first time, and still the outpatient desk would not be covered until 7:30 on Sunday morning, 30 minutes later than the 7 a.m. opening time on the other days of the week, and the previous opening time on Sunday. 4. Contentions and concluding findings The General Counsel contends in his brief that the Hos- pital "consciously decided to lay Savnik off without notice, in the midst of her weekly schedule, during a period when all workers were working extra hours to compensate for Ann Giarratano's absence. . . . The only conclusion which can be drawn is that the hospital was seeking to remove Savnik immediately in order to negate her assis- tance to District 1199." The General Counsel also argues that "By laying her off it freed the hours she worked so as to enable it to distribute those hours among the other em- ployees" at the outpatient desk; "thereby rectifying a ma- jor complaint raised at the May 19 union meeting. Thus, Respondent dealt two blows to the organizing effort at a critical time-one day after the second union meeting." Accordingly, the General Counsel contends that Savnik's "layoff" was unlawfully motivated, and that the Hospital's "action with respect to the redistribution of Rita Savnik's hours had the effect, and was done for the purpose of, counteracting employee support for District 1199." The Hospital contends in its brief that it had no knowl- edge or reason to believe or suspect that Rita Savnik was engaging in union activities (contrary to the foregoing find- ings). The Hospital then presents its economic defense, contending that "Rita Savnik was hired to cover an antici- pated increase in outpatient census and was laid off when it became apparent that the increase would not occur." In making this contention, the Hospital emphasizes the evi- dence of poor business in the emergency room through April, and completely ignores the 25 percent increase in May (when Savnik was terminated), and the anticipated further increases that summer and in subsequent years. The Hospital contends that Controller Borda's decision to "restore his part-timers' hours, based on seniority," and his decision to lay off Savnik "had nothing whatsoever to do with the presence of the union but, rather, were reflections of the economic picture of the Hospital and the failure of the Hospital's predictions to come true." It argues that the part-time employees "were not being given something new. They were getting hours back they had lost to a financial crisis as soon as was possible after the crisis was over" (ignoring the fact that the reduced hours of one of the part-time employees were not restored, and the hours of two of the part-time employees were increased above the number they were working before the cutback). The brief 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also argues that "Although the employees may have grum- bled about the cut at the union meetings ... the Hospital had no way of knowing what was said at these meetings" (relying on Borda 's discredited denials). After considering all of the parties ' contentions , and af- ter weighing all of the evidence and circumstances, I find that the sudden decision to terminate part -time receptionist Savnik and to distribute her hours to other part-time recep- tionists-despite the sizeable monthly increase in outpa- tient business and the expected future increases-was ille- gally motivated , to eliminate her as a union activist from the Hospital and to induce remaining part-time outpatient receptionists to refrain from supporting the Union. I there- fore find that the Hospital discriminatorily laid off Savnik in violation of Section 8(aX3) and (1) of the Act, and that it interfered with the employees ' Section 7 rights by grant- ing benefits to discourage union support , in violation of Section 8(axl) of the Act. CONCLUSIONS OF LAW 1. By laying off Rita Savnik on May 21, 1975, because of her support of the Union , the Hospital engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and ( 1) and 2(6) and (7) of the Act. 2. By increasing the hours of certain part-time outpa- tient receptionists to induce them to refrain from support- ing the Union , the Hospital violated Section 8(a)(1) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices , I find it necessary to order the Respondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily laid off an em- ployee, I find it necessary to order it to offer her full rein- statement, with backpay computed on a quarterly basis plus interest at 6 percent per annum as prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date of proper offer of reinstatement. Upon the foregoing findings of fact and conclusions of law, upon the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become ORDER2 Respondent, Putnam Community Hospital, Carmel, New York, its officers , agents , successors , and assigns, shall: 1. Cease and desist from: (a) Laying off or otherwise discriminating against any employee for supporting District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL- CIO, or any other Union. (b) Increasing hours of work or granting other benefits to employees to induce them to refrain from supporting a union. (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 ef- fectuate the policies of the Act: (a) Offer Rita Savnik immediate and full reinstatement to her former job or , if her job no longer exists , to a sub- stantially equivalent position, without prejudice to her se- niority or other rights and privileges, and make her whole for her lost earnings in the manner set forth in the Remedy. (b) 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 records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its hospital in Carmel, New York, copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's author- ized representative, shall be posted by the Respondent im- mediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found. its findings , conclusions , and Order , and all objections thereto shall be deemed waived for all purposes. 3 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Copy with citationCopy as parenthetical citation